FORM 10-QSB
- --------------------------------------------------------------------------------
U.S. Securities and Exchange Commission
Washington, D.C. 20549
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JANUARY 31, 1998
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _________________ to _________________
Commission File Number: 0-21394
DEVELOPED TECHNOLOGY RESOURCE, INC.
(Exact name of issuer as specified in its charter)
MINNESOTA 41-1713474
State of Incorporation I.R.S. Employer Identification No.
7300 METRO BOULEVARD, SUITE 550
EDINA, MINNESOTA 55439
Address of Principal Executive Office
(612) 820-0022
Issuer's Telephone Number
Check whether the issuer (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes __X__ No ____
As of June 15, 1998, there were 805,820 shares of the issuer's Common Stock,
$0.01 par value per share, outstanding.
<PAGE>
DEVELOPED TECHNOLOGY RESOURCE, INC.
INDEX
FOR THE QUARTER ENDED JANUARY 31, 1998
PAGE NO.
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PART I. FINANCIAL INFORMATION
ITEM 1. CONDENSED UNAUDITED FINANCIAL STATEMENTS
Condensed Balance Sheets 3
Condensed Statements of Operations 4
Condensed Statements of Cash Flows 5
Notes to Condensed Financial Statements 6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS 9
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SHAREHOLDERS 12
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 12
SIGNATURES 16
<PAGE>
ITEM 1. CONDENSED UNAUDITED FINANCIAL STATEMENTS
DEVELOPED TECHNOLOGY RESOURCE, INC.
CONDENSED BALANCE SHEETS
<TABLE>
<CAPTION>
ASSETS
JANUARY 31, OCTOBER 31,
1998 1997
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(Unaudited)
<S> <C> <C>
Current Assets:
Cash and cash equivalents $ 254,121 $ 311,441
Receivables:
Trade, net 26,650 97,939
Sale of discontinued operations 480,000 440,000
FoodMaster International L.L.C. (FMI) 408,095 579,582
Other 844 714
Note receivable 541,935 --
Prepaid and other current assets 48,282 46,046
----------- -----------
Total current assets 1,759,927 1,475,722
Furniture and Equipment, net 39,111 45,466
Investment in FMI 833,173 788,785
Receivable from Sale of Discontinued Operations -- 40,000
----------- -----------
$ 2,632,211 $ 2,349,973
=========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accounts payable $ 191,129 $ 100,269
Accrued liabilities 156,088 124,838
Deferred gain short-term 467,065 426,590
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Total current liabilities 814,282 651,697
Non-current Deferred Gain 38,530 80,675
Commitments and Contingencies -- --
Shareholders' Equity:
Common stock 8,058 7,908
Additional paid-in capital 5,341,648 5,319,298
Accumulated deficit (3,570,307) (3,709,605)
----------- -----------
Total shareholders' equity 1,779,399 1,617,601
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$ 2,632,211 $ 2,349,973
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</TABLE>
See accompanying notes to the financial statements.
<PAGE>
DEVELOPED TECHNOLOGY RESOURCE, INC.
CONDENSED STATEMENTS OF OPERATIONS
THREE MONTHS ENDED JANUARY 31, 1998 AND 1997
<TABLE>
<CAPTION>
1998 1997
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(Unaudited) (Unaudited)
<S> <C> <C>
Revenues:
Sales $ 346,844 $ 1,331,686
Management fees from FMI joint venture 287,963 --
Commissions and other income 1,670 9,677
----------- -----------
636,477 1,341,363
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Cost and Expenses:
Cost of sales 274,362 956,676
Selling, general and administrative 309,468 458,778
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583,830 1,415,454
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Operating Income (Loss) 52,647 (74,091)
Other Income:
Interest income, net 42,263 6,707
Equity in earnings of FMI joint venture 44,388 --
----------- -----------
Income (Loss) before Minority Interest 139,298 (67,384)
Minority Interest in Earnings of FoodMaster -- (33,614)
----------- -----------
Net Income (Loss) $ 139,298 $ (100,998)
=========== ===========
Net Income (Loss) per Common Share:
Basic $ 0.18 $ (0.12)
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Diluted $ 0.13 $ (0.12)
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</TABLE>
See accompanying notes to the financial statements.
<PAGE>
DEVELOPED TECHNOLOGY RESOURCE, INC.
CONDENSED STATEMENTS OF CASH FLOWS
THREE MONTHS ENDED JANUARY 31, 1998 AND 1997
<TABLE>
<CAPTION>
1998 1997
----------- -----------
(Unaudited) (Unaudited)
<S> <C> <C>
OPERATING ACTIVITIES:
Net Income (Loss) $ 139,298 $ (100,998)
Adjustments to Reconcile Net Income (Loss)
to Cash Provided/(Used) by Operating Activities:
Depreciation 5,980 36,386
Loss on sale of furniture and equipment 688 --
Minority interest in earnings of joint venture -- 33,614
Equity in earnings of FMI joint venture (44,388) --
Changes in Operating Assets and Liabilities:
Receivables 29,224 72,028
Receivable from FMI joint venture 171,487 --
Inventories -- (145,769)
Prepaid and other current assets (2,236) (179,822)
Accounts payable and accrued liabilities 122,110 275,566
Deferred gains (1,670) (110,596)
Customer deposits -- 23,791
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Net cash provided/(used) by operating activities 420,493 (95,800)
----------- -----------
INVESTING ACTIVITIES:
Proceeds from Sale of Furniture and Equipment 1,400 --
Purchases of Furniture and Equipment (1,713) (24,823)
Notes Receivable (500,000) --
Advances to Joint Venture -- (9,243)
Deferred Acquisition Costs -- (122,734)
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Net cash used by investing activities (500,313) (156,800)
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FINANCING ACTIVITIES:
Principal Payments on Note Payable -- (7,238)
Proceeds from Exercise of Stock Options 22,500 --
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Net cash provided/(used) by financing activities 22,500 (7,238)
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DECREASE IN CASH AND CASH EQUIVALENTS (57,320) (259,838)
CASH AND CASH EQUIVALENTS, Beginning of Period 311,441 635,609
----------- -----------
CASH AND CASH EQUIVALENTS, End of Period $ 254,121 $ 375,771
=========== ===========
</TABLE>
See accompanying notes to the financial statements.
<PAGE>
DEVELOPED TECHNOLOGY RESOURCE, INC.
NOTES TO FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Business
Developed Technology Resource, Inc. (DTR or the Company) owns and manages
food businesses in the countries of the former Soviet Union (fSU) through
FoodMaster International L.L.C. (FMI), its joint venture with Agribusiness
Partners International L.P. (API). FMI purchases dairy manufacturing
facilities in the fSU and provides equipment and necessary capital. DTR
manages the dairies and pursues future acquisitions for FMI. Using modern
marketing techniques and packaging equipment, the dairies provide customers
in the fSU better quality branded dairy products.
In fiscal 1998 and 1997, DTR also sold equipment to various customers
throughout the fSU.
During fiscal 1998, DTR's 100% owned subsidiary, SXD, Inc., distributed
X-ray tubes under an exclusive arrangement with a Russian manufacturer and
held ownership interests in the coatings technology business of Phygen,
Inc. and the cancer detection business of Armed. These operations were
formerly operated by DTR in fiscal 1997.
Basis of Presentation
The interim financial statements of Developed Technology Resource, Inc.
(DTR) are unaudited, but in the opinion of management, reflect all
necessary adjustments for a fair presentation of the financial position, as
well as, the results of operations and cash flows for the periods
presented.
From November 1996 through February 1997, the financial statements include
the operations of DTR and FoodMaster Corporation (FoodMaster), DTR's 50%
owned subsidiary in Almaty, Kazakhstan. All significant intercompany
transactions and balances were eliminated in consolidation. On March 3,
1997, DTR contributed its 50% ownership of FoodMaster to the FMI joint
venture for a 40% ownership in FMI. Effective March 1997, DTR records its
proportionate share of the net income or loss of FMI in the statement of
operations as equity in earnings of FMI joint venture under the equity
method of accounting. The excess of DTR's underlying equity in net assets
of FMI over the carrying value of its investment is being amortized to
income over 15 years.
The results of operations for any interim period are not necessarily
indicative of results for the full year. These financial statements should
be read in conjunction with the Company's Annual Report and Notes thereto
on Form 10-KSB for the year ended October 31, 1997 as filed with the
Securities and Exchange Commission.
Segment Reporting
In June 1997, the Financial Accounting Standards Board (FASB) issued
Statement of Financial Accounting Standards (SFAS) No. 131, DISCLOSURES
ABOUT SEGMENTS OF AND ENTERPRISE AND RELATED INFORMATION. This statement is
effective for fiscal years beginning after December 15, 1997. The Company
has not yet evaluated the full impact of the adoption of SFAS 131.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities at
the date of the financial statements and reported amounts of revenues and
expense during the reporting period. Actual results could differ from those
estimates.
<PAGE>
Reclassifications
Certain reclassifications were made to the 1997 financial statements to
present those financial statements on a basis comparable with the current
year. The reclassifications had no effect on previously reported net loss
or accumulated deficit.
2. AK-BULAK OPTION
Effective August 1996, the Company obtained an option to purchase 80% of
Ak-Bulak, an inactive company which owned the other 50% of the FoodMaster
joint venture. This purchase of 80% of Ak-Bulak would give DTR an
additional 40% ownership of FoodMaster. To exercise the option, the Company
agreed to pay certain pre-defined outstanding debts of Ak-Bulak, the other
owner of FoodMaster, and to make capital improvements to the dairy owned by
FoodMaster. As of March 2, 1997 and January 31, 1997, DTR had paid $171,774
and $90,233, respectively, in connection with the exercise of this option.
On March 3, 1997, DTR contributed its 50% ownership in FoodMaster along
with its option to acquire the additional 40% ownership to the FMI joint
venture. FMI repaid DTR for all but $14,045 of the costs paid through March
2, 1997 to exercise the option (See Note 3).
3. INVESTMENT IN FOODMASTER INTERNATIONAL L.L.C. (FMI)
On March 3, 1997, DTR and API established the FMI joint venture, to acquire
and operate dairies in the former Soviet Union. DTR contributed to FMI its
50% ownership in FoodMaster, the Ak-Bulak option (See Note 2) and its
opportunities for a future acquisition of a dairy in Moldova. API agreed to
fund $2.945 million to further develop the dairy operations in Kazakhstan
and Moldova and to provide an additional $3.055 million over two years to
expand FMI. By January 31, 1998, API contributed $3.45 million of its $6
million commitment to FMI. Under the agreement, API currently owns 60% and
DTR owns 40% of FMI. However, DTR has a right to earn a greater ownership
interest of FMI by achieving certain defined performance targets based on
returns to API. Effective March 1997, DTR records its proportionate share
of the net income or loss of FMI in the statement of operations as equity
in earnings of FMI joint venture under the equity method of accounting.
DTR also entered into a management agreement with FMI, whereby DTR manages
the day to day operations of FMI and the dairy operations owned by FMI, and
pursues future dairy acquisitions for FMI for a management fee. The Company
recorded management fee income of $287,963 and $0 for the three months
ended January 31, 1998 and 1997, respectively, in accordance with its
management agreement with FMI.
Summarized financial information from the unaudited financial statements of
FMI carried on the equity basis is as follows:
<TABLE>
<CAPTION>
January 31, 1998
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<S> <C>
Current assets $ 4,394,417
Total assets 11,309,796
Noncurrent liabilities 1,567,194
Shareholders' equity 7,028,414
DTR's share of FMI 's equity 2,811,366
DTR's carrying value of FMI's equity 833,173
Three Months Ended
January 31, 1998
----------------
Sales $ 3,553,403
Gross profit 156,853
Net loss (25,441)
DTR's share of FMI's loss before adjustment of DTR's excess
of net equity over carrying value of the investment (10,176)
DTR's share of equity in earnings of FMI joint venture after adjustment 44,388
</TABLE>
<PAGE>
4. STOCK ACTIVITY
On November 6, 1997, the Board of Directors adopted the 1997 Outside
Directors Stock Option Plan, superseding the 1993 Outside Directors Stock
Option Plan. In exchange for the surrender of all stock options previously
granted to the outside directors, the Board granted stock options of 15,000
shares of common stock to the two current outside directors at an exercise
price of $1.50 per share, which was equal to the market price on the grant
date. As of January 31, 1998, 15,000 of the 30,000 issued options were
exercised.
In the first quarter of fiscal 1997, 48,190 shares of common stock were
redeemed in exchange for the satisfaction of a $29,035 account receivable
owed by a former employee.
5. NET INCOME (LOSS) PER COMMON SHARE
Effective November 1, 1997, DTR adopted Statement of Financial Accounting
Standards (SFAS) No. 128, EARNINGS PER SHARE. Under this new standard,
basic net income (loss) per share is computed by dividing net income (loss)
by the weighted average number of common shares outstanding. Diluted net
income (loss) per share includes the dilutive effect of shares which would
be issued upon the exercise of outstanding stock options and warrants,
reduced by the number of shares which are assumed to be purchased by the
Company from the resulting proceeds at the average market price during the
period.
<TABLE>
<CAPTION>
For the three months ended January 31, 1998 1997
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<S> <C> <C>
Numerator:
Net income (loss) $ 139,298 $ (100,998)
============== ==============
Denominator:
Weighted average shares for basic earnings 795,059 811,248
Dilutive effect of stock options and warrants 302,278 --
-------------- --------------
Weighted average shares for diluted earnings 1,097,337 811,248
-------------- --------------
Net income (loss) per share - Basic $ 0.18 $ (0.12)
============== ==============
Net income (loss) per share - Diluted $ 0.13 $ (0.12)
============== ==============
</TABLE>
Options and warrants to purchase 53,333 shares of common stock as of
January 31, 1998 were not included in the computation of diluted earnings
per share because their exercise prices were greater than the average
market price of the common shares and, therefore, their inclusion would be
antidilutive. For the first quarter of fiscal 1997, options and warrants of
603,501 were not included in the computation of diluted earnings per share
because there was a net loss for the period and their inclusion would be
antidilutive.
6. SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Non-cash operating and investing activities:
In the first quarter of fiscal 1997, the Company redeemed 48,190 shares of
common stock in exchange for the satisfaction of a $29,035 account
receivable owed by a former employee.
The non-cash effects of this transactions has been removed from the
appropriate categories in the operating and investing section of the
Company's Statements of Cash Flows for the three months ended January 31,
1997.
Supplemental cash flow information:
For the three months ended January 31, 1998 1997
-------------------------------------- ------------ -----------
Cash paid for:
Interest $ 256 $ --
Taxes $ -- $ --
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Statements other than current or historical information included in
this Management's Discussion and Analysis and elsewhere in this Form 10-QSB, in
future filings by Developed Technology Resource, Inc. (the Company or DTR) with
the Securities and Exchange Commission and in DTR's press releases and oral
statements made with the approval of authorized executive officers, should be
considered "forward-looking statements" made pursuant to the safe harbor
provisions of the Private Securities Litigation Reform Act of 1995. These
statements are subject to certain risks and uncertainties that could cause
actual results to differ materially from historical earnings and those presently
anticipated or projected. DTR wishes to caution the reader not to place undue
reliance on any such forward-looking statements.
On March 3, 1997, DTR and API established the FMI joint venture to
acquire and operate dairies in the former Soviet Union. DTR contributed to FMI
its 50% ownership in FoodMaster, the Ak-Bulak option and its opportunities for a
future acquisition of a diary in Moldova. API agreed to fund $2.945 million to
further develop the dairy operations in Kazakhstan and Moldova and to provide an
additional $3.055 million over two years to expand FMI. By January 31, 1998, API
contributed $3.45 million of its $6 million commitment to FMI. Under the
agreement, API currently owns 60% of FMI. DTR owns 40% of FMI. However, DTR has
a right to earn a greater ownership interest of FMI by achieving certain defined
performance targets based on returns to API. Effective March 1997, DTR records
its proportionate share of the net income or loss of FMI in the statement of
operations as equity in earnings of FMI joint venture under the equity method of
accounting.
In November 1997, DTR's Board of Directors voted to establish a
wholly-owned subsidiary company called SXD, Inc. with a contribution of $800,000
consisting of cash and receivables. SXD will own and operate the non-dairy
portion of DTR's business, which includes the x-ray tube distribution business,
ownership interests in the coating technology business of Phygen, Inc., and the
cancer detection business of Armed.
RESULTS OF OPERATIONS
REVENUES
The Company generated total revenues of $636,477 in the first quarter
of fiscal 1998, compared to $1,341,363 in the first quarter of fiscal 1997. This
74% decrease in revenues is the result of the change from the consolidated
method of reporting joint venture operating results to the equity method as
discussed above. The decrease in revenues was offset by management fee income of
$287,963 for fiscal 1998 which was not in effect in the first quarter of fiscal
1997.
Sales for the three months ended January 31, 1998 and 1997 totaled
$346,844 and $1,331,686, respectively. Sales resulted from three areas within
DTR - dairy operations of FoodMaster (in the first quarter of fiscal 1997 only),
equipment sales, and x-ray tube sales.
In the first quarter of fiscal 1998, the dairy operations of FoodMaster
are no longer reported on a consolidated basis with DTR due to the transfer of
FoodMaster to FMI. The dairy operations of FoodMaster are consolidated in the
financial statements of FMI, and DTR recognizes 40% of FMI's income or loss as
equity in earnings of FMI joint venture in DTR's Statements of Operations.
FoodMaster sales from November 1996 through January 1997 were $1,294,808 or
97.2% of DTR's total sales for the first quarter ended January 31, 1997.
<PAGE>
Sales of food packaging equipment were $279,644 (80.6%) of total sales
in the quarter ended January 31, 1998. There were no sales of equipment in the
first quarter of fiscal 1997. Sales of equipment occur sporadically throughout
the year. Thus, in fiscal 1997, equipment sales did not occur until the second
quarter.
Sales of x-ray tubes by SXD Inc., DTR's 100% owned subsidiary,
increased to $67,200 in the first quarter of fiscal 1998 from $37,800 in the
first quarter of fiscal 1997. The increase occurred due to the timing and
quantity of orders in the first quarter of fiscal 1998. Management does not
expect the current year annual sales to increase significantly above that in
fiscal 1997.
COST OF SALES
Cost of sales for the three months ended January 31, 1998 and 1997 were
$274,362 and $956,676, respectively. This 71% decrease in cost of sales is the
result of the change in accounting methods discussed above. Cost of sales
reflects the cost of manufacturing the dairy products of FoodMaster for the
first three months of fiscal 1997, the cost of purchasing food packaging
equipment and x-ray tubes.
There is no cost of sales reflected for FoodMaster in the first quarter
of fiscal 1998. FoodMaster cost of sales was $903,951 or 69.8% of FoodMaster
sales for the first quarter ended January 31, 1997.
Cost of sales on equipment sales was $216,762 resulting in a gross
profit of $62,882 or 22.5% in fiscal 1998. X-ray tubes cost $57,600 and $32,900
in the first quarter of fiscal 1998 and 1997, respectively. Gross profit
remained consistent with a 13% to 14% margin received on sales. Management does
not expect these trends to change significantly.
SELLING, GENERAL AND ADMINISTRATIVE
Selling, general and administrative expenses for the three months ended
January 31, 1998 were $309,468 compared to $414,770 for the three months ended
January 31, 1997. FoodMaster comprised $274,800 of the expenses in the first
quarter of fiscal 1997. Therefore, the Company's other SG&A expense increased
approximately $169,500 in the first three months of fiscal 1998. This increase
is the result of DTR hiring additional employees and consultants and increasing
their travel to manage the dairy operations of FMI. However, these costs are
offset by the management fees billed to FMI as discussed above under REVENUES.
LIQUIDITY AND CAPITAL RESOURCES
OPERATING ACTIVITIES
DTR increased its cash provided by operating activities to $420,493 in
the first quarter of fiscal 1998 compared to cash used of $95,800 in the first
quarter of fiscal 1997. In the first quarter of fiscal 1998, a majority of the
operating expenses were reimbursed in accordance with the management agreement
between DTR and FMI. In addition, the first three months of fiscal 1998 does not
reflect FoodMaster's operations which significantly affected the use of cash in
the first quarter of fiscal 1997.
INVESTING ACTIVITIES
In the first quarter of fiscal 1998, DTR's 100% owned subsidiary, SXD,
Inc. used $500,000 of its excess cash to invest in a note receivable from an
unaffiliated private company. In the first quarter of
<PAGE>
fiscal 1997, DTR paid out $90,233 as part of the requirement to exercise its
option to purchase 80% of Ak-Bulak, its inactive 50% partner in the FoodMaster
joint venture.
FINANCING ACTIVITIES
In the first quarter of fiscal 1998, 15,000 options to purchase DTR's
Common Stock were exercised for a purchase price of $1.50 per share. DTR's
FoodMaster operations obtained $70,910 in bank financing during fiscal 1996 and
began to make principal payments on this note in the first quarter of fiscal
1997. FoodMaster made total principal payments of $7,238 on its bank note
payable during the period from November 1996 to January 1997.
Based on current projections, the Company believes there will be
sufficient working capital and liquidity to fund its current operations through
fiscal 1998. Management is continually looking for new areas of investment and
expansion for its subsidiaries FMI and SXD.
<PAGE>
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the shareholders during the quarter
ended January 31, 1998.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
The following new Exhibits are filed as part of this Form 10-QSB:
(a) List of Exhibits
10.4 1992 Stock Option Plan as amended and restated effective
September 30, 1996
10.16 Office Lease between DTR and McNeil Real Estate dated
March 11, 1997 effective until April 30, 2002
21.1 Subsidiaries of Developed Technology Resource, Inc. as
amended
27 Financial Data Schedule
(b) Reports on Form 8-K
One report on Form 8-K was filed by Developed Technology
Resource, Inc. on December 23, 1997. There were no other reports
on Form 8-K filed during the quarter ended January 31, 1998.
<PAGE>
EXHIBIT INDEX
The following Exhibits are filed as part of this Form 10-QSB:
No. EXHIBIT DESCRIPTION
- --- -------------------
3.1 Articles of Incorporation of the Company dated November 11, 1991(1)
3.2 Certificate of Amendment of Articles of Incorporation of the Company
dated June 16, 1992(1)
3.3 Bylaws of the Company(1)
3.4 Certificate of Amendment of Articles of Incorporation of the Company,
changing registered office address dated March 2, 1993(1)
3.5 Certificate of Amendment of Articles of Incorporation of the Company
dated November 30, 1995(3)
4.1 Form of stock certificate representing Common Stock, $.01 par value per
share, of the Company, issued by Company after a 1 for 3 reverse split
effective December 12, 1995(3)
4.2 Form of Subscription Agreement and Investment Representations in
connection with private placement of 300,000 shares of Common Stock(1)
4.3 Amended Incentive Stock Option Grant - Erlan Sagadiev dated December 11,
1996(6)
4.4 Amended Incentive Stock Option Grant - John Hupp dated December 11,
1996(6)
10.1 Asset Sale Agreement between Company and a corporation to be organized by
Oleg Yermakov selling the Company's security equipment distribution
business and certain assets to Oleg Yermakov, contingent on certain
future events(5)
10.2 Exclusive Distributor Agreement dated October 1995 between Company and
SECTOR 6, Security Division of N.V. COMAUTO S.A. effective until
September 30, 1998(5)
10.3 Contract for Fiduciary Management of State Shares of the Open Type Joint
Stock Company, Ak-Bulak with their Subsequent Buy-out Option(4)
10.4 1992 Stock Option Plan as amended and restated effective September 30,
1996(8)
10.5 Form of Stock Option Agreement(1)
10.6 Limited Liability Company Agreement of FoodMaster International L.L.C.
dated March 3, 1997(6)
10.7 FoodMaster International L.L.C. Share Transfer Agreement dated March 3,
1997(6)
10.8 FoodMaster International L.L.C. Bill of Sale, Assignment and Assumption
Agreement dated March 3, 1997(6)
10.9 Management Agreement between DTR and FoodMaster International L.L.C.
dated March 3, 1997(6)
10.12 Form of Assignment of Financial Advisory Agreement from the Company to
FAI Limited Partnership effective January 31, 1993(1)
10.13 Employment Agreement between DTR and Erlan Sagadiev effective September
30, 1996(6)
<PAGE>
10.14 Employment Agreement between DTR and John Hupp effective September 30,
1996(6)
10.15 Developed Technology Resource, Inc. 1993 Outside Directors Stock Option
Plan effective December 17, 1993(2)
10.16 Office Lease between DTR and McNeil Real Estate dated March 11, 1997
effective until April 30, 2002(8)
10.20 Partnership Agreement dated January 16, 1992 among the Company, Armen P.
Sarvazyan and Stanislav Yemelyanov concerning the formation of Medical
Biophysics International, as amended by Partnership Agreement Amendment
dated August 20, 1992(1)
10.21 Letter of Understanding dated June 18, 1992 between the Company and Armen
P. Sarvazyan concerning Medical Biophysics International, and May 22,
1992 letter from the Company to Dr. Armen P. Sarvazyan, Ph.D.(1)
10.22 Assignment of rights to Intracavity Ultrasonic Device for Elasticity
Imaging from Armen P. Sarvazyan, Stanislav Emelianov and Andrei R.
Skovoroda to Medical Biophysics International dated December 19, 1992(1)
10.23 Assignment of rights to Method and Apparatus for Elasticity Imaging from
Armen P. Sarvazyan and Stanislav Emelianov to Medical Biophysics
International dated December 19, 1992(1)
10.24 Assignment of rights to Method and Device for Mechanical Tomography of
Tissue from Armen P. Sarvazyan to Medial Biophysics International dated
January 16, 1993(1)
10.42 Form of Underwriter's Warrants dated May 5, 1993 between the Company and
Equity Securities Trading Co., Inc.(2)
10.43 Form of Directors and Officers Indemnification Agreement issued to each
of the Company's officers and directors on October 15, 1993 by action of
the Board of Directors(2)
10.44 Developed Technology Resource, Inc. 1997 Outside Directors Stock Option
Plan effective November 1, 1997(7)
10.45 Amendment to Asset Sale Agreement (Exhibit 10.1) dated August 20, 1997
(7)
21.1 Subsidiaries of Developed Technology Resource, Inc. as amended(8)
27 Financial Data Schedule(8)
- --------------------------------------------------------------------------------
(1) Incorporated by reference to the same exhibit number included in the
Company's registration statement on Form SB-2, as Amended, filed with the
Commission as file number 33-58626C in 1993.
(2) Incorporated by reference to the same exhibit number included in the
Company's Annual Report on Form 10-KSB filed with the Commission for the
fiscal year ended October 31, 1993.
(3) Incorporated by reference to exhibit numbers 1A and 3A included in the
Company's Form 8-A/A filed with the Commission on December 12, 1995.
(4) Incorporated by reference to exhibit number 10 included in the Company's
Quarterly Report on Form 10-QSB for the third fiscal quarter ended July
31, 1996.
(5) Incorporated by reference to the same exhibit number included in the
Company's Annual Report on Form 10-KSB filed with the Commission for the
fiscal year ended October 31, 1995.
<PAGE>
(6) Incorporated by reference to exhibit numbers 4.1, 4.2, 10.1, 10.2, 10.3,
10.4, 10.5 and 10.6 included in the Company's Quarterly Report on Form
10-QSB filed with the Commission for the first quarter ended January 31,
1997.
(7) Incorporated by reference to the same exhibit number included in the
Company's Annual Report on Form 10-KSB filed with the Commission for the
fiscal year ended October 31, 1997.
(8) Filed herewith.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
DEVELOPED TECHNOLOGY RESOURCE, INC.
Date: June 15, 1998 By /s/ John P. Hupp
-------------------------------------------------
Name: John P. Hupp
Title: President
Date: June 15, 1998 By /s/ LeAnn H. Davis
-------------------------------------------------
Name: LeAnn H. Davis, CPA
Title: Chief Financial Officer
(Principal Financial & Accounting Officer)
EXHIBIT 10.4
DEVELOPED TECHNOLOGY RESOURCE, INC.
1992 STOCK OPTION PLAN
Section 1: Purpose. The purpose of the 1992 Stock Option Plan is to
induce certain designated key persons to continue to provide valuable services
to Developed Technology Resource, Inc. (the "Corporation") and to encourage such
persons to secure or increase on reasonable terms their stock ownership in the
Corporation. The Board of Directors of the Corporation believes the Plan is in
the best interest of the Corporation and will promote the success of the
Corporation. This success will be achieved by encouraging continuity of
management and increased incentive and personal interest in the welfare of the
Corporation by those who are primarily responsible for shaping and implementing
the long-range plans of the Corporation. THIS AMENDMENT AND RESTATEMENT IS
EFFECTIVE SEPTEMBER 30, 1996.
Certain Options granted under this Plan are intended to be Incentive
Stock Options qualified under Section 422 of the Code. The Plan also permits the
grant of Nonqualified Stock Options.
Section 2: Definitions. For purposes of this Plan, the following terms
shall have the meanings indicated below:
(a) "Capital Stock": any of the Corporation's authorized but
unissued shares of $.01 par value common stock.
(b) "Code": the Internal Revenue Code of 1986, as amended from
time to time.
(c) "Fair Market Value": the price per share determined by the
Board of Directors at the time any Option is granted. Fair Market Value
of Incentive Stock Options shall be determined consistent with the Code
and regulations.
(d) "Incentive Stock Option": an option defined in Section 422
of the Code to purchase shares of the common stock of the Corporation.
(e) "Non-Qualified Stock Option": an option, not intended to
qualify as an Incentive Stock Option as defined in Section 422 of the
Code, to purchase common stock of the Corporation.
(f) "Option": the term shall refer to a Stock Option granted
under this Plan.
(g) "Option Agreement": a written agreement pursuant to which
the Corporation grants an Option to an Optionee and sets the terms and
conditions of the Option.
(h) "Option Date": the date upon which an Option Agreement for
an option granted pursuant to this Plan is duly executed by or on
behalf of the Corporation.
<PAGE>
(i) "Option Stock": the $.01 par value common stock of the
Corporation (subject to adjustment as described in Section 7) reserved
for options pursuant to this Plan, or any other class of stock of the
Corporation which may be substituted therefore by exchange, stock split
or otherwise.
(j) "Optionee": an officer, management level or other
employee, non-employee director of or consultant to Corporation to whom
an Option has been granted under the Plan.
(k) "Plan": this 1992 Stock Option Plan effective August 5,
1992, as amended hereafter from time to time.
(l) A "Subsidiary": any corporation in an unbroken chain of
corporations beginning with the Corporation, if, at the time of
granting the option, each of the corporations other than the last
corporation in the chain owns stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock in one
of the other corporations in such chain. The term shall include any
subsidiaries which become such after adoption of this Plan.
Section 3: Options Available Under Plan. An aggregate of 600,000 shares
of the Corporation's authorized but unissued shares of $.01 par value common
stock is hereby made available for grant, and shall be reserved for issuance,
under this Plan. The aggregate number of shares available under this Plan shall
be subject to adjustment on the occurrence of any of the events and in the
manner set forth in Section 7. If an Option shall expire or terminate for any
reason without having been exercised in full, the unpurchased shares, shall
(unless the Plan shall have been terminated) become available for other Options
under the Plan.
Section 4: Administration. The Plan shall be administered by the Board
of Directors of the Corporation. At all times subject to the authority of the
Board of Directors, the Board of Directors may from time to time delegate some
or all of its authority under the Plan to a committee consisting of three (3) or
more Directors (the "Committee"), and/or obtain assistance or recommendations
from such Committee. If no separate committee is appointed, the Board shall
constitute the Committee, and references to the Committee shall include the
entire Board of Directors.
The Corporation shall grant Options pursuant to the Plan upon
determinations of the Committee as to which of the eligible persons shall be
granted Options, the number of shares to be Optioned and the term during which
any such Options may be exercised. At all times, a majority of the members of
the Committee making determinations about the grant of Options to
employee-directors must be disinterested in the grant being made. The Committee
may from time to time adopt rules and procedures for carrying out the Plan and
interpretations and constructions of any provision of the Plan, which shall be
final and conclusive.
<PAGE>
Section 5: Eligibility for Stock Options. Incentive Stock Options under
the Plan may only be granted to such key employees of the Corporation or any
subsidiary thereof, as selected by the Committee. Non-Qualified Stock Options
may be granted to key employees, non-employee directors and any other persons
providing valuable services to the Corporation.
In selecting the employees to or other persons whom Stock Options shall
be granted, as well as determining the number of shares subject to each Option,
the Committee shall take into consideration such factors as it deems relevant in
connection with accomplishing the purpose of the Plan. For any calendar year,
the aggregate Fair Market Value (determined at the Option Date) of the stock
with respect to which any Incentive Stock Options are exercisable for the first
time by any individual employee (under all Incentive Stock Option plans of the
Corporation and all subsidiary corporations) shall not exceed $100,000. Subject
to the provisions of Section 3, an optionee who has been granted an Option may,
if he or she is otherwise eligible, be granted an additional Option or Options
if the Committee shall so determine. Any Incentive Stock options that become
exercisable and exceed the above limitation shall be treated as a Non-Qualified
Option.
No Stock Option may be granted under this Plan later than the
expiration of ten (10) years from the effective date.
Section 6: Terms and Conditions of Options. Whenever the Committee
shall designate an Optionee, it shall communicate to the Secretary of the
Corporation the name of the Optionee, the number of shares to be Optioned and
such other terms and conditions as it shall determine, not inconsistent with the
provisions of this Plan. The President or other officer of the Corporation shall
then enter into an Option Agreement with the Optionee, complying with and
subject to the following terms and conditions and setting forth such other terms
and conditions of the Option as determined by the Committee:
(a) Number of shares and option price. The Option Agreement
shall state the total number of shares to which it pertains. The price
of Incentive Stock Option Stock shall be not less than one hundred
percent (100%) of the Fair Market Value of the Option Stock at the
Option Date. In the event an Incentive Stock Option is granted to an
employee, who, at the Option Date, owns more than ten percent (10%) of
the voting power of all classes of the Corporation's stock then
outstanding, the price of the shares of Option Stock which will be
covered by such Option shall be not less than one hundred ten percent
(I 10%) of the Fair Market Value of the Option Stock at the Option
Date. Non-Qualified Options may be granted at a price equal to, greater
than or less than Fair Market Value at the date of grant. The Option
price shall be subject to adjustment as provided in Section 7 hereof.
(b) Period of options and right to exercise. Options granted
under this Plan shall be subject to such terms and conditions, shall be
exercisable at such times and shall be evidenced by such form of
written Option Agreement as the Committee shall determine, provided
that for Incentive Stock Options, such determinations are not
inconsistent with Code Section 422 and the regulations thereunder.
<PAGE>
In addition, no Option granted, shall by its terms, be exercisable
after the expiration of ten (10) years from the date such Option is
granted. Except, however, Options granted to any employee who at the
time of grant owns more than ten percent (10%) of the voting power of
all shares of the classes of Corporation's stock then outstanding may
not by its terms be exercisable after expiration of five (5) years from
the date such Option is granted. The period during which the Option may
be exercised, once it is granted, shall not be reduced, except as
provided in paragraphs (c), (d) and (e) below. The exercise of any
Option will be contingent upon receipt by the Corporation of payment as
provided in paragraph (h) below for the full purchase price of such
shares. No Optionee or his or her legal representatives, legatees or
distributees, as the case may be, will be, or will be deemed to be, a
holder of any shares subject to an Option unless and until certificates
for such shares are issued under the terms of the Plan.
(c) Termination of Employment or Service. In the event that an
Optionee shall cease to be employed by or performing services for the
Corporation for any reason other than death, subject to the condition
that no Incentive Stock Option shall be exercisable after the
expiration of ten (10) years from the date it is granted, such Optionee
shall have the right to exercise any outstanding Options at any time
within three (3) months after the termination of employment or service
(in the case of a disabled employee or other Optionee, the Board of
Directors at its discretion may permit exercise of Options within one
year of termination of employment).
(d) Death of Optionee. If the Optionee shall die (i) while in
the employ of or under contract with the Corporation or any subsidiary,
or (ii) within a period of three (3) months after the termination of
his or her employment or contract with the Corporation or any
subsidiary as provided in paragraph (c) of this section, and in either
case shall not have fully exercised his or her Options, any Options
granted pursuant to the Plan shall be exercisable until the earlier of
the originally stated date of termination or one year from the date of
death. Such Option shall be exercised pursuant to subparagraph (g) of
this Section by the person or persons to whom the Optionee's rights
under the Option shall pass by the Optionee's will or by the laws of
descent and distribution, and only to the extent that such Options were
exercisable at the time of his death.
(e) Transfer of Option. Each Option granted hereunder shall,
by its terms, not be transferable by the Optionee other than by will or
by the laws of descent and distribution, and shall be, during the
Optionee's lifetime, exercisable only by the Optionee. Except as
permitted by the preceding sentence, each Option granted under the Plan
and the rights and privileges thereby conferred shall not be
transferred, assigned or pledged in any way (whether by operation of
law or otherwise), and shall not be subject to execution, attachment or
similar process. Upon any attempt to so transfer, assign, pledge, or
otherwise dispose of the Option, or of any right or privilege conferred
thereby, contrary to the provisions of the Option or the Plan, or upon
levy of any attachment or similar process upon such rights and
privileges, the Option, and such rights and privileges, shall
immediately become null and void.
<PAGE>
(f) Manner of Exercise of Options. An Optionee electing to
exercise an Option shall give written notice to the Company of such
election and of the number of shares subject to such exercise. The full
purchase price of such shares shall be tendered with such notice of
exercise. Payment shall be made to the Company in cash (including bank
check, certified check, personal check, or money order), or, at the
discretion of the Committee and as specified by the Committee, (i) by
delivering certificates for the Company's Common Shares already owned
by the Optionee or grantee having a fair market value as of the date of
grant equal to the full purchase price of the shares (ii) a combination
of cash and such shares or (iii) by delivering a copy of irrevocable
instructions to a broker to deliver the amount of sale or loan proceeds
with respect to the Company's Common Stock directly and promptly to the
Company. The fair market value of such tendered shares shall be
determined as provided in Section 5 herein. Until such person has been
issued the shares subject to such exercise, he or she shall possess no
rights as a shareholder with respect to such shares.
(g) Delivery of Certificate. As promptly as practicable after
receipt of the written notice and payment specified above, the
Corporation shall deliver to the Optionee certificates for the number
of shares with respect to which the Option has been exercised, issued
in the Optionee's name; provided, however, that such delivery shall be
deemed effected for all purposes when the Corporation, or the stock
transfer agent for the Corporation, shall have deposited such
certificates in the United States mail, postage prepaid, addressed to
the Optionee at the address specified in the written notice of
exercise.
(h) Other Provisions. The Option Agreements authorized under
this Section shall contain such other provisions as the Committee shall
deem advisable, including, but not limited to a requirement that
Capital Stock purchased pursuant to the exercise of an Option be
subject to a buy-sell agreement which will restrict the Optionee's
ability to transfer the Capital Stock to third parties.
Section 7: Adiustment of Number of Shares. If, and to the extent that,
the number of issued shares of the Capital Stock of the Corporation shall be
increased or reduced by change in par value, recapitalization, reorganization,
merger, consolidation, split up, distribution of a dividend payable in stock or
the like, the number of shares subject to the Option and the Option price
therefor shall be equitably adjusted by the Conu-nittee consistent with such
change to prevent substantial dilution or enlargement of the rights granted to
or available to Optionees.
Subject to the foregoing, the grant of an Option pursuant to the Plan
shall not affect in any way the right or power of the Corporation to make
adjustments, reclassifications, reorganizations, or changes of its capital or
business structure or to merge or to consolidate or to dissolve, liquidate or
sell, or transfer all or any part of its business or assets.
Section 8: Rights as Stockholder. An Optionee shall not, by reason of
any Option granted hereunder, have any right of a stockholder of the Corporation
with respect to the shares covered by his Option until such shares shall have
been issued to the Optionee.
<PAGE>
Section 9: No Obligation to Exercise Option. The granting of an Option
shall impose no obligation upon the Optionee to exercise such Option. Neither
shall the Plan confer upon the Optionee any rights respecting continued
employment nor limit the Optionee's rights or the employer Corporation's rights
to terminate such employment.
Section 10: Withholding Taxes. Whenever under the Plan shares of Option
Stock are to be issued upon exercise of a Non-Qualified Option granted hereunder
and prior to the delivery of any certificates or certificates for said shares by
the Corporation or if required by law, upon a disqualified disposition of an
Incentive Stock Option, the Corporation shall have the right to require any
Optionee that IS or was an employee as of the date of grant, to remit to the
Corporation an amount sufficient to satisfy any federal and state withholding or
other employment taxes, if any, resulting from such exercise or early
disposition.
Section 11: Common Stock Acquired for Investment. Common Stock acquired
by an Optionee under this Plan by exercise of any Option shall be acquired by
the Optionee for investment and without intention of resale, unless, in the
opinion of counsel of the Corporation, such common stock may be purchased
without any investment representation. Where an investment representation is
deemed necessary, the Committee may require a written representation to that
effect by the Optionee as a condition of the Optionee exercising an Option under
this Plan, and the Committee may place an appropriate legend on the common stock
issued to the Optionee indicating that such common stock has not been registered
under federal or state securities laws. Each Option shall be subject to the
requirement that if, at any time, the Committee shall determine in its
discretion that the listing, registration or qualification of the shares subject
to such Option upon any securities exchange or under any state or federal law,
or the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of such Option
or the issuance or purchase of shares thereunder, then such Option shall not be
granted or exercised in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or obtained free of
any conditions not acceptable to the Committee. Nothing contained herein shall
require the Corporation to register the Options or the shares of voting common
stock purchased upon the exercise of said Options.
Section 12: Effective Date. This Plan shall be effective August 5, 1992
(the "Effective Date") as approved by the Board of Directors. However, unless
within 12 months before or 12 months after the Plan is adopted by the Board of
Directors, the Plan is approved by the vote of the holders of a majority of the
outstanding Capital Stock of the Corporation, the Plan shall not qualify under
Section 422 of the Code. All subsequent stock options granted hereunder will be
Non-Qualified Stock Options. All Options granted prior to disqualification of
the Plan for failure to obtain shareholder approval shall be converted to
Non-Qualified Stock Options.
Section 13: Liquidation. Upon the complete liquidation of the
Corporation, any unexercised Options theretofore granted under this Plan shall
be deemed cancelled, except as otherwise provided in Section 7 in connection
with a merger, consolidation or reorganization of the Corporation.
<PAGE>
Section 14: Termination and Amendment of the Plan. This Plan shall
terminate ten (10) years after the Effective Date or at such earlier time as the
Board of Directors shall determine. Any termination shall not affect any Options
then outstanding under the Plan.
The Board may make such modifications of the Plan as it shall deem
advisable, but may not, without further approval of the stockholders of the
Corporation, except as provided in Section 7 hereof, (a) increase the number of
shares reserved for Options under this Plan, (b) change the manner of
determining the Option price for Incentive Stock Options, (c) increase the
maximum term of the Options provided for herein, or (d) change the class of
persons eligible to receive Options under the Plan.
EXHIBIT 10.16
STANDARD FORM OFFICE LEASE
ARTICLE 1. - BASIC LEASE TERMS
For the purposes of this Lease, the following terms shall have the
meanings set forth below:
1.0 LEASE DATE. March 1l, 1997, for reference purposes only.
1.1 LANDLORD. McNeil Real Estate Fund XXVII, L.P.
1.2 TENANT. Developed Technology Resource, Inc.
1.3 BUILDING. The Building (including the Leased Premises) known as One
Corporate Center III in Edina, MN, located on that tract of land (the "Land")
described on Exhibit "A" hereto, together with all other buildings, structures,
fixtures and other improvements located thereon from time to time. The Building
and the Land are collectively referred to herein as the "Property."
1.4 LEASED PREMISES. That portion of the Building commonly known as Unit
#550, and delineated on Exhibit "B", containing approximately 1,009 square feet.
1.5 LEASE TERM. Five (5) years and Zero (0) months, beginning on May 1,
1997, or such other date as is specified in this Lease and ending on April 30,
2002.
1.6 BASE RENT.
From Mos. 01 - 12 Annually $18,162.00 Monthly $1,513.50
From Mos. 13 - 24 Annually $18,666.50 Monthly $1,555.54
From Mos. 25 - 36 Annually $19,171.00 Monthly $1,597.58
From Mos. 37 - 48 Annually $19,675.50 Monthly $1,639.63
From Mos. 49 - 60 Annually $20,180.00 Monthly $1,681.67
1.7 SECURITY DEPOSIT. Security deposit is $ 5,045.01
1.8 ADDRESSES FOR NOTICES/PAYMENT ADDRESS.
Manager's Address/Payment Address:
McNeil R.E. Mgmt., Inc.
7300 Metro Blvd.
Suite 150
Edina, MN 55439
Tenant's Address:
Dev. Technology Resource. Inc.
7300 Metro Blvd.
Suite 550
Edina, MN 55439
Landlord's Address:
McNeil Real Estate Fund XXVII. L.P.
c/o McNeil Real Estate Management, Inc.
Attn: General Counsel
13760 Noel Road, Suite 600-LB 70
Dallas, Texas 75240
Landlord, Tenant and Manager, by written notice to the others may change from
time to time the foregoing addresses, and Landlord, by written notice to Tenant,
may notify Tenant from time to time of the appointment of a new Manager and such
new Manager's address.
1.9 PERMITTED USE. General Office Use
1.10 COMMON AREAS. All areas in the Property except those areas leased to
tenants or held for lease to tenants, including without limitation parking
areas, streets, driveways, aisles, sidewalks, curbs, delivery passages, loading
areas, lighting facilities, mechanical rooms, elevator areas, common areas
(such as corridors, bathrooms, and similar areas), other Building common areas
and all other areas situated on or in the Property which are designated by
Landlord, from to time, for use by, or for the benefit of, all tenants of the
Property in common.
1.11 GUARANTOR. The guarantor of Tenant's obligations under this Lease
pursuant to a Guaranty of Lease, if any, attached hereto as Exhibit "G",
executed for the benefit of Landlord. Said Guarantor is, as of the date of
execution hereof:
Same as Tenant
1.12 OPERATING EXPENSE BASE. The amount, expressed in dollars per square
foot, derived by dividing (a) the Operating Expenses for the Property during the
calendar year 1997 by (b) the total number of square feet in the Building.
1.13 BROKERS. Jeff Reimann of Koll
1.14 ENTIRE AGREEMENT. THE FOLLOWING EXHIBITS ARE ATTACHED HERETO AND ARE
INCORPORATED HEREIN BY THIS REFERENCE (CHECK IF APPLICABLE):
X EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY
X EXHIBIT "B" LEASED PREMISES
X EXHIBIT "C" ACCEPTANCE OF LEASED PREMISES
X EXHIBIT "D" RULES AND REGULATIONS
X EXHIBIT "E" LEASEHOLD IMPROVEMENTS AGREEMENT
X EXHIBIT "F" PARKING PROVISIONS
EXHIBIT "G" GUARANTY GUARANTY
X ADDENDUM TO OFFICE LEASE
INITIALS:
Landlord:
Tenant:
<PAGE>
1.15 TERM COMMENCEMENT DATE. The "Term Commencement Date" and the Rent
Commencement Date shall be the date specified in Article 1.5 above for the
beginning of the Lease Term. If improvements are to be erected upon the Leased
Premises pursuant to a separate Leasehold Improvements Agreement between
Landlord and Tenant, as described in Article 6.1, then the "Rent Commencement
Date" shall be the earlier of the date Tenant begins operating its business in
the Leased Premises or the "completion date" as stated in such Leasehold
Improvements Agreement; and if no improvements are to be erected upon the Leased
Premises, the Rent Commencement Date shall be the earlier of the date Tenant
begins operating its business in the Leased Premises or the Term Commencement
Date referred to in Article 1.5. Landlord shall not be liable to Tenant if
Landlord does not deliver possession of the Leased Premises to Tenant on the
Term Commencement Date. Landlord's non-delivery of the Leased Premises to Tenant
on that date shall not affect this Lease or the obligations of Tenant under this
Lease except that the Term Commencement Date shall be delayed until Landlord
delivers possession of the Leased Premises to Tenant and the Lease Term shall be
extended for a period equal to the delay in delivery of possession of the Leased
Premises to Tenant, plus the number of days necessary to end the Lease Term on
the last day of a month. If Tenant occupies the Leased Premises prior to the
Term Commencement Date, Tenant shall pay Base Rent and all Additional Rent and
shall comply with all of Tenant's obligations in this Lease during the early
occupancy period (including without limitation the provisions requiring Tenant
to obtain insurance and to indemnify and exculpate Landlord) and Tenant's
occupancy of the Leased Premises shall be subject to all of the provisions of
this Lease. Early occupancy of the Leased Premises shall not advance the
expiration date of this Lease.
ARTICLE 2. - GRANTING CLAUSE AND RENT PROVISIONS
2.1 GRANT OF PREMISES. In consideration of the obligation of Tenant to
pay the rent and other charges as provided in this Lease and in consideration of
the other terms and provisions of this Lease, Landlord hereby leases the Leased
Premises to Tenant during the Lease Term, subject to the terms and provisions of
this Lease.
2.2 BASE RENT. Tenant agrees to pay monthly in advance as Base Rent,
commencing on the Term Commencement Date and continuing during the term of this
Lease, the sum of money set forth in Article 1.6 of this Lease, which amount
shall be payable in care of Landlord to Manager at the address shown in Article
1.8 above or at such other address that Landlord in writing shall notify Tenant.
One (1) monthly installment of rent shall be due and payable on the date of move
in of this Lease by Tenant for the first month's rent and a monthly installment
shall be due and payable as set forth in Article 1.6 hereof on or before the
first day of each calendar month succeeding the Term Commencement Date during
the term of this Lease, without demand, offset or reduction; provided, if the
Commencement Date should be a date other than the first day of a calendar month,
the monthly rental set forth above shall be prorated to the end of that calendar
month, and all succeeding installments of rent shall be payable on or before the
first day of each succeeding calendar month during the term of this Lease.
Tenant shall pay, as Additional Rent, all other sums due under this Lease. Base
Rent and all other monetary sums due under this Lease (hereinafter referred to
as "Additional Rent") are sometimes collectively called "rent".
2.3 OPERATING EXPENSES. If Landlord's Operating Expenses for the
Property divided by the total number of square feet in the Building ("Landiord's
Operating Expenses per square foot"), in any calendar year during the term of
this Lease, exceed the Operating Expense Base, Tenant agrees to pay as
Additional Rent Tenant's share of such excess Operating Expenses. As used
herein, the term "Tenant's share of such excess Operating Expenses" means (a)
the amount by which Landlord's Operating Expenses per square foot exceed the
Operating Expense Base, multiplied by (b) the square feet comprising the Leased
Premises. Notwithstanding any contrary provision, if the Building is not fully
occupied during any calendar year, Operating Expenses and Tenant's Additional
Rent based thereon shall be determined as if the Building had been 95% occupied
during such year. Landlord may, by so notifying Tenant, require Tenant to pay
monthly for Tenant's share of the estimated Operating Expenses for each calendar
year, which amount shall be adjusted each year based upon anticipated Operating
Expenses. Following the close of each calendar year, Landlord shall provide
Tenant an itemized statement showing in reasonable detail all computations of
Additional Rent due under this Article. If the itemized statement shows that the
total of the monthly payments made by Tenant exceeds the amount of Additional
Rent due by Tenant under this Article, the itemized statement shall be
accompanied by a credit to Tenant's account. If the itemized statement shows
that the total of the monthly payments made by Tenant is less than the amount of
Additional Rent due by Tenant under this Article, Tenant shall pay to Landlord
with next rental payment the amount shown on the itemized statement as owing to
Landlord. Notwithstanding any other provisions in this Lease, Landlord shall
have the right, which can be exercised at any time within sixteen months after
the termination date, to invoice Tenant, with respect to the year in which the
Lease terminates, for Tenant's share of the excess Operating Expenses over the
Operating Expense Base. If this Lease shall terminate on a day other than the
last day of a calendar year, the amount of any Additional Rent payable by Tenant
applicable to the year in which such termination shall occur shall be prorated
on the ratio that the number of days from the commencement of the calendar year
to and including the termination date bears to 365. Tenant agrees to pay any
Additional Rent due under this Article with the next rental payment following
receipt of the itemized statement showing Additional Rent due. In no event shall
the Base Rent or other sums due under this Lease ever be reduced due to the
operation of this Article 2.
2.4 DEFINITION OF OPERATING EXPENSES.
(a) The term "Operating Expenses" includes all expenses incurred by
Landlord with respect to the ownership, maintenance, servicing, repairing and
operation of the Property, including, but not limited to the following:
maintenance, repair and replacement costs; electricity, fuel, water, sewer, gas
and other utility charges; security, window washing and janitorial services;
trash and snow and ice removal; landscaping and pest control; management fees,
wages and benefits payable to employees of Landlord or Manager whose duties are
directly connected with the operation and maintenance of the Property; all
services, supplies, repairs, replacement or other expenses for maintaining and
operating the Property including parking and Common Area; the cost, including
interest, amortized over its useful life, of any capital improvement made to the
Property by Landlord which is required under any governmental law or regulation;
the cost, including interest, amortized over its useful life, of installation of
any device or other equipment which is installed to improve the operating
efficiency of any system and reduce Operating Expenses; all other expenses which
generally would be regarded as operating or maintenance expenses which would
reasonably be amortized over a period not to exceed five (5) years; all real
property taxes and installments of special assessments, including dues and
assessments by means of deed restrictions and/or owner's associations which
accrue against the Property during the term of this Lease; governmental levies
or charges of any kind or nature assessed or imposed on the Property, whether by
state, county, city or any political subdivision thereof; all insurance premiums
Landlord is required to pay or deems necessary to pay, including public
liability insurance, with respect to the Property; all amounts paid for
liability and casualty loss pursuant to insurance deductible amounts; any
amounts considered an operating, maintenance or management expense under
generally accepted accounting principles; and reasonable reserves for all or any
of the foregoing.
(b) The term Operating Expenses does not include the following:
expenses for repairs, restoration or other work occasioned by fire, wind, the
elements or other casualty that are paid by insurance; income and franchise
taxes of Landlord; expenses incurred in leasing to or procuring of tenants,
leasing commissions, advertising expenses and expenses for the renovating of
space for new tenants; interest or principal payments on any mortgage
encumbering the Property; compensation paid to any employee above the grade of
Property Manager; or Operating Expenses which are the responsibility of Tenant.
<PAGE>
2.5 LATE FEES. Other remedies for nonpayment of rent notwithstanding,
if any monthly rental payment is not received by Landlord on or before the fifth
(5th) day of the month for which the rent is due, or if any other payment
hereunder due Landlord by Tenant is not received by Landlord within five days
of the date such amount became due, a late fee of ten percent (10%) of such past
due amount or the sum of one hundred dollars ($100.00), whichever is greater,
shall become due and payable in addition to such amounts owned under this Lease.
2.6 INCREASE IN INSURANCE PREMIUMS. If an increase in any insurance
premiums paid by Landlord for the Property is caused by Tenant's use of the
Leased Premises in a manner other than as set forth in Article 1.9, or if Tenant
vacated the Leased Premises and caused an increase in such premiums, then Tenant
shall pay as Additional Rent the amount of such increase to Landlord. Tenant
agrees to pay any amount due under this Article within ten (10) days following
receipt of the invoice showing the Additional Rent due.
2.7 SECURITY DEPOSIT. The security deposit set forth in Article 1.7
shall be held by Landlord for the performance of Tenant's covenants and
obligations under this Lease, it being expressly understood that the security
deposit shall not be considered an advance payment to Tenant of rental or a
measure of Landlord's damage in case of default hereunder by Tenant, and shall
be held by Landlord. Upon the occurrence of any event of default by Tenant under
this Lease, Landlord may, from time to time, without prejudice to any other
remedy, use any portion of the security deposit to the extent necessary to make
good any arrears of rent, or to repair any damage or injury, or pay any expense
or liability incurred by Landlord as a result of the event of default or breach
of covenant, and any remaining balance of the security deposit shall be returned
by Landlord to Tenant upon the termination of this Lease. If any portion of the
security deposit is so used or applied, Tenant shall upon ten (10) days written
notice from Landlord, deposit with Landlord by cashier's check an amount
sufficient to restore the security deposit to its original amount. The Security
Deposit may be assigned and transferred by Landlord to the successor in interest
of Landlord and, upon acknowledgment by such successor of receipt of such
security and its assumption of the obligation to account to Tenant for such
security in accordance with the terms of this Lease, Landlord shall thereby be
discharged of any further obligation relating thereto.
2.8 HOLDING OVER. If Tenant does not vacate the Leased Premises upon
the expiration or earlier termination of this Lease, Tenant shall be a tenant at
sufferance for the holdover period and all of the terms and provisions of this
Lease shall be applicable during that period, except that Tenant shall pay
Landlord (in addition to Additional Rent payable under Article 2.3 and any other
sums payable under this Lease) as base rental for the period of such holdover an
amount equal to two times the Base Rent payable in the last month of the
immediately preceding Lease Year (without waiver of Landlord's right to recover
damages as permitted by law). Upon the expiration or earlier termination of this
Lease, Tenant agrees to vacate and deliver the Leased Premises, and all keys
thereto, to Landlord upon delivery to Tenant of notice from Landlord to vacate.
The rental payable during the holdover period shall be payable to Landlord on
demand. No holding over by Tenant, whether with or without the consent of
Landlord, shall operate to extend the term of this Lease. Tenant shall indemnify
Landlord against all claims made by any tenant or prospective tenant against
Landlord resulting from delay by Landlord in delivering possession of the Leased
Premises due to Tenant's holding over.
ARTICLE 3. - OCCUPANCY, USE AND OPERATIONS
3.1 USE. Tenant warrants and represents to Landlord that the Leased
Premises shall be used and occupied only for the purpose as set forth in Article
1.9. Tenant shall occupy the Leased Premises, conduct its business and control
its agents, employees, invitees and visitors in such a manner as is lawful,
reputable and will not create a nuisance to other tenants in the Property.
Tenant shall not solicit business, distribute handbills or display merchandise
within the Common Areas, or take any action which would interfere with the
rights of other persons to use the Common Areas. Tenant shall not permit any
operation which emits any odor or matter which intrudes into other portions of
the Property, use any apparatus or machine which makes undue noise or causes
vibration in any portion of the Property or otherwise interfere with, annoy or
disturb any other tenant in its normal business operations or Landlord in its
management of the Property. Tenant shall neither permit any waste on the Leased
Premises nor allow the Leased Premises to be used in any way which would, in the
opinion of Landlord, be extra hazardous on account of fire or other hazard which
would in any way increase or render void the hazard insurance on the Property.
3.2 SIGNS. No signs of any type or description shall be erected, placed
or painted in or about the Leased Premises except those signs submitted to
Landlord in writing and approved by Landlord in writing, and which signs are in
conformity with Landlord's sign criteria established for the Property. Landlord
reserves the right to remove, at Tenant's expense, all signs other than signs
approved in writing by Landlord under this Article 3.2, without notice to Tenant
and without liability to Tenant for any damages sustained by Tenant as a result
thereof, and Tenant shall repair any damage caused by such removal.
3.3 COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Tenant, at Tenant's
sole cost and expense, shall comply with all laws, ordinances, orders, rules and
regulations of state, federal, municipal or other agencies or bodies having
jurisdiction over the use, condition or occupancy of the Leased Premises. Tenant
shall procure at its own expense all permits and licenses required for the
transaction of its business in the Leased Premises. Tenant will comply with the
rules and regulations of the Properly adopted by Landlord which are set forth in
Exhibit D attached to this Lease. If Tenant is not complying with such rules and
regulations, or if Tenant is in any way not complying with this Article 3, then,
notwithstanding anything to the contrary contained herein, Landlord, may at its
election, enter the Leased Premises without liability therefor and fulfill
Tenant's obligations. Tenant shall reimburse Landlord on demand for any expenses
which Landlord may incur in effecting compliance with Tenant's obligations and
agrees that Landlord shall not be liable for any damages resulting to Tenant for
such action. Landlord shall have the right at all times to change and amend the
rules and regulations in any reasonable manner as it may deem advisable for the
safety, care, cleanliness, preservation of good order and operation or use of
the Property or the Leased Premises. All changes and amendments to the rules and
regulations of the Property will be forwarded by Landlord to Tenant in writing
and shall thereafter by carried out and observed by Tenant.
3.4 WARRANTY OF POSSESSION. Landlord and Tenant each warrant that it
has the right and authority to execute this Lease, and Landlord warrants to
Tenant, that upon payment of the required rents by Tenant and subject to the
terms, conditions, covenants and agreements contained in this Lease, Tenant
shall have possession of the Leased Premises during the full term of this Lease,
as well as any extension or renewal thereof, without hindrance from Landlord or
any person or persons lawfully claiming the Leased Premises by, through or under
Landlord (but not otherwise); subject, however, to all mortgages, deeds of
trust, leases and agreements to which this Lease is subordinate and to all laws,
ordinances, orders, rules and regulations of any governmental authority.
Landlord shall not be responsible for the acts or omissions of any other lessee
or third party that may interfere with Tenant's use and enjoyment of the Leased
Premises.
3.5 INSPECTION. Landlord or its authorized agents shall at any and all
reasonable times have the right to enter the Leased Premises to inspect the
same, to supply janitorial service or any other service to be provided by
Landlord, to show the Leased Premises to prospective mortgagees, purchasers or
prospective tenants, and to alter, improve or repair the Leased Premises or
any other portion of the Property. Tenant hereby waives any claim for abatement
or reduction of rent or for any damages for injury or inconvenience to or
interference with Tenant's business, for any loss of occupancy or use of the
Leased Premises, and for any other loss occasioned thereby. Landlord shall have
the right at all times to enter the Leased Premises by any means in the event
of an emergency without liability therefor.
<PAGE>
3.6 PERSONAL PROPERTY TAXES. Tenant shall be liable for all taxes
levied against personal property, trade fixtures and all other taxable property
located in the Leased Premises. If any such taxes for which Tenant is liable are
levied against Landlord or Landiord's property and if Landlord elects to pay the
same or if the assessed value of Landlord's property is increased by inclusion
of personal property and trade fixtures placed by Tenant in the Leased Premises
and Landlord elects to pay the taxes based on such increase, Tenant shall pay to
Landlord, upon demand, that part of such taxes for which the Tenant is primarily
liable pursuant to the terms of this Article. Tenant shall pay when due any and
all taxes related to Tenant's use and operation of its business in the Leased
Premises.
ARTICLE 4. - UTILITIES AND SERVICES
4.1 BUILDING SERVICES. Landlord shall provide water and electricity for
Tenant during the term of this Lease. Tenant shall pay all telephone charges.
Landlord shall furnish Tenant water at those points of supply provided for
general use of other tenants in the Building, and central heating and air
conditioning in season (on business days during regular hours, and at
temperatures and in amounts as are considered by Landlord to be standard or in
compliance with any governmental regulations, such service at times other than
regular hours to be furnished upon not less than twenty-four (24) hours advance
notice from Tenant, who shall bear the entire cost thereof at the rate
established by Landlord). Landlord shall also provide routine maintenance,
painting and electric lighting service for all public areas and special service
areas of the Property in the manner and to the extent deemed by Landlord to be
standard. Landlord may, in its sole discretion, provide additional services not
enumerated herein. Failure by Landlord to any extent to provide these defined
services or any other services not enumerated, or any cessation thereof, shall
not render Landlord liable in any respect for damages to either person or
property, be construed as an eviction of Tenant, work an abatement of rent or
relieve Tenant from fulfillment of any covenant in this Lease. If any of the
equipment or machinery useful or necessary for provision of utility services,
and for which Landlord is responsible, breaks down, or for any cause ceases to
function properly, Landlord shall use reasonable diligence to repair the same
promptly, but Tenant shall have no claim for rebate of rent or damages on
account of any interruption in service occasioned from the repair. Landlord
reserves the right from time to time to make changes in the utilities and
services provided by Landlord to the Property.
4.2 JANITORIAL SERVICE. Landlord shall furnish janitorial services to
the Leased Premises and public areas of the Building five (5) times per week
during the term of this Lease, excluding holidays. Landlord shall not provide
janitorial service to kitchens or storage areas included in the Leased Premises.
4.3 EXCESSIVE UTILITY CONSUMPTION. Tenant shall pay all utility costs
occasioned by electrodata processing machines, telephone equipment, computers
and other equipment which requires consumption in excess of standard office use
as determined by Landlord, including (without limitation) the cost of
installing, servicing and maintaining any special or additional inside or
outside wiring or lines, meters or submeters, transformers, poles, air
conditioning costs, or the cost of any other equipment necessary to increase the
amount or type of electricity or power available to the Leased Premises.
4.4 WINDOW COVERINGS. Landlord may (but shall not be obligated to)
furnish and install window coverings on all exterior windows to maintain a
uniform exterior appearance. Tenant shall not remove or replace these window
coverings or install any other window covering which would affect the exterior
appearance of the Building. Tenant may install lined or unlined over draperies
on the interior sides of the Landlord furnished window coverings for interior
appearance or to reduce light transmission, provided such over draperies do not
(in Landlord's determination) affect the exterior appearance of the Building or
affect the operation of the Building's heating, ventilating and air conditioning
systems.
4.5 CHARGE FOR SERVICE. All costs of Landlord for providing the
services set forth in Article 4 (except those charges paid by Tenant pursuant to
Article 4.3) shall be subject to the Additional Rent provisions in Article 2.3
and shall be payable as therein provided.
ARTICLE 5. - REPAIRS AND MAINTENANCE
5.1 LANDLORD REPAIRS. Landlord shall not be required to make any
improvements, replacements or repairs of any kind or character to the Leased
premises during the term of this Lease except as are set forth in this Lease.
Landlord shall maintain only the roof, foundation, parking and Common Areas, the
structural soundness of the exterior walls, doors, corridors, windows, concealed
plumbing and other structures or equipment serving the Leased Premises.
Landlord's cost of maintaining and repairing the items set forth in this Article
are subject to the Additional Rent provisions in Article 2.3. Landlord shall not
be liable to Tenant, except as expressly provided in this Lease, for any damage
or inconvenience, and Tenant shall not be entitled to any damages nor to any
abatement or reduction of rent by reason of any maintenance, repairs,
replacements, alterations or additions made by Landlord under this Lease.
5.2 TENANT REPAIRS. Tenant, at its own cost and expense, shall perform
such maintenance, repairs and replacements as are required in order to keep the
Leased Premises in a first-class condition (except only for those items that are
the responsibility of Landlord under Article 5.1) and shall repair or replace
any damage or injury to all or any part of the Leased premises and/or the
Property, caused by any act or omission of Tenant or Tenant's agents, employees,
invitees, licensees or visitors.
5.3 TENANT DAMAGES. Tenant shall not allow any damage to be committed
on any portion of the Leased Premises or Property, and at the termination of
this Lease, by lapse of time or otherwise, Tenant shall deliver the Leased
Premises to Landlord in as good condition as existed at the Term Commencement
Date of this Lease, ordinary wear and tear excepted. The cost and expense of any
repairs necessary to restore the condition of the Leased Premises shall be borne
by Tenant.
ARTICLE 6. - ALTERATIONS AND IMPROVEMENTS
6.1 CONSTRUCTION. Tenant has inspected the Leased Premises and the
Building and accepts them in their present "AS-IS" condition. Tenant shall, upon
request of Landlord, execute and deliver to Landlord an Acceptance of Premises
memorandum in the form of Exhibit C attached hereto. Except as expressly
provided in this Lease or in a Leasehold Improvements Agreement, Tenant
acknowledges and agrees that Landlord has not undertaken to perform any
modification, alteration or improvements to the Leased Premises, and Tenant
further waives any defects in the Leased Premises and acknowledges and accepts
(1) the Leased Premises as suitable for the purpose for which they are leased
and (2) the Property and every part and appurtenance thereof as being in good
and satisfactory condition.
<PAGE>
6.2 ALTERATIONS. Tenant shall not make or allow to be made any
alterations, physical additions or improvements in or to the Leased Premises
other than those contemplated in the Leasehold Improvements Agreement without
first obtaining the written consent of Landlord, which consent may in the sole
and absolute discretion of Landlord be denied. Landlord's failure to respond in
writing to Tenant's request for any alterations, physical additions or
improvements within fifteen (15) days of receipt thereof shall be deemed
Landlord's disapproval of such request. Any alterations, physical additions or
improvements to the Leased Premises made by or installed by either party hereto
shall remain upon and be surrendered with the Leased Premises and become the
property of Landlord upon the expiration or earlier termination of this Lease
without credit to Tenant: provided, however, Landlord, at its option, may
require Tenant to remove any physical improvements or additions and/or repair
any alterations in order to restore the Leased Premises to the condition
existing at the time Tenant took possession, all costs of removal and/or
alterations to be borne by Tenant. This clause shall not apply to moveable
equipment, furniture or moveable trade fixtures owned by Tenant, which may be
removed by Tenant at the end of the term of this Lease if Tenant is not then in
default and if such equipment and furniture are not then subject to any other
rights, liens and interests of Landlord. Tenant shall have no authority or
power, express or implied, to create or cause any mechanic's or materialmen's
lien, charge or encumbrance of any kind against the Leased Premises, the
Property or any portion thereof. Tenant shall promptly cause any such liens that
have arisen by reason of any work claimed to have been undertaken by or through
Tenant to be released by payment, bonding or otherwise within ten (10) days
after request by Landlord, and shall indemnify and defend Landlord against
liability or loss arising out of any such claim (including, without limitation,
legal fees and court costs).
6.3 COMMON AND SERVICE AREA ALTERATIONS. Landlord shall have the right
to decorate and to make repairs, alterations, additions, changes or
improvements, whether structural or otherwise, in, about or on the Property or
any part thereof, and to change, alter, relocate, remove or replace service
areas and/or Common Areas, to place, inspect, repair and replace in the Leased
Premises (below floors, above ceilings or next to columns) utility lines, pipes
and the like to serve other areas of the Property outside the Leased Premises
and to otherwise alter or modify the Property, and for such purposes to enter
upon the Leased Premises and, during the continuance of any such work, to take
such measures for safety or for the expediting of such work as may be required,
in Landlord's judgment, all without affecting any of Tenant's obligations
hereunder.
ARTICLE 7. - CASUALTY AND INSURANCE
7.1 OPTION TO TERMINATE LEASE. If the Leased Premises or any part
thereof shall be damaged or destroyed by fire or other casualty, the Landlord
may, at its option and subject to Article 7.2 hereinbelow, elect to terminate
this Lease by giving notice to the Tenant within ninety (90) days after Landlord
receives actual notice of the fire or other casualty, and thereupon the term of
this Lease shall expire as of the date of casualty. Instead of exercising said
option, Landlord may elect to repair or restore the Leased Premises to the same
condition as existed before such damage or destruction. Upon election to repair
or restore, Landlord may proceed with reasonable dispatch to perform the
necessary work, and the Base Rent and Additional Rent to be paid until such work
is completed shall be abated in proportion of the Leased Premises being
unusable, but Landlord shall not be liable to Tenant for any delay which arises
by reason of labor strikes, adjustments of insurance or any other cause beyond
Landiord's control, and in no event shall Landlord be liable for any loss of
profits or income. Notwithstanding the foregoing, there shall be no abatement,
apportionment or reduction in the rental obligations of Tenant if the damage or
destruction is caused by the Tenant or Tenant's agents, representatives or
employees.
7.2 OBLIGATION TO REPAIR OR RESTORE. If and only if all of the
following circumstances exist with respect to damage or destruction to the
Leased Premises, Landlord may not elect to terminate the Lease as provided in
Article 7.1 hereof but rather must elect to repair or restore the Leased
Premises:
(a) There is no fault or neglect on the part of the Tenant, Tenant's
agents, representatives or employees which contributed to the damage or
destruction;
(b) The damage or destruction to the Leased Premises is less than fifty
percent (50%) of the replacement cost thereof as determined by Landlord;
(c) The Landlord is fully insured for the casualty which causes the
damage or destruction and the insurance proceeds have been made available
therefor by the holder or holders of any mortgages or deeds of trust covering
the Leased Premises;
(d) The date of the damage or destruction is greater than one year
prior to the Expiration Date of this Lease or any renewal, modification or
extension thereof; and
(e) Less than sixty percent (60%) of the square feet of the Building is
so damaged or destroyed, as determined by Landlord, regardless of the percentage
of square feet of the Leased Premises which may be damaged or destroyed.
7.3 FAULT OF TENANT. Landlord may exercise its option to repair or
restore as described in Article 7.1 even if such damage or destruction is due to
the fault or neglect of Tenant, Tenant's agents, representatives or employees,
but in such event Landiord's election to repair or restore shall be without
prejudice to any other rights and remedies of Landlord under this Lease, and
there shall be no apportionment or abatement of any rent of any kind and
Landlord shall not be liable for any other loss to Tenant of any nature
whatsoever.
7.4 TERMINATION BV TENANT. In the event that more than sixty percent
(60%) of square feet of the Leased Premises shall be damaged or destroyed by
fire or other casualty not caused by the Tenant or Tenant's agents,
representatives or employees, Tenant may terminate this Lease by giving notice
to Landlord within thirty (30) business days after the date of the fire or other
casualty, and upon such termination the rental obligations of the Tenant shall
be duly apportioned as of the date of such fire or other casualty, provided
however, that Tenant shall have no right to terminate the Lease under this
Article 7.4 if Tenant is in default of any of its obligations under the Lease as
of the date of the fire or other casualty.
7.5 PROPERTY INSURANCE. Landlord shall at all times during the term of
this Lease insure the property against all risk of direct physical loss in an
amount and with such deductibles as Landlord considers appropriate; Landlord
reserves the right to self insure. Landlord shall not be obligated in any way or
manner to insure any personal property. (Tenant shall at all times during the
term of this Lease carry insurance against fire and other such risks as are from
time to time included in a standard All-Risk insurance policy. Tenant's
merchandise, trade fixtures, furnishings, wall covering, carpeting, drapes,
equipment, supplies, all items of personal property of Tenant located on or in
the Leased Premises, or any improvements which may be constructed on the Leased
Premises pursuant to the Leasehold Improvements Agreement shall be insured at
100% of replacement cost with any co-insurance clauses deleted and with a
deductible not to exceed $5,000.00. Tenant shall be responsible for payment of
the deductible, regardless of the amount). Tenant shall have no right in or
claim to the proceeds of any policy of insurance maintained by Landlord even if
the cost of such insurance is borne by Tenant as set forth in Article 2.
<PAGE>
7.6 WAIVER OF SUBROGATION. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant hereby waive and release each other of and
from any and all right of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or damage
regardless of cause or origin, including negligence of Landlord or Tenant and
their agents, officers and employees to the extent that such a loss is recovered
by Landlord or Tenant. Landlord and Tenant agree immediately to give their
respective insurance companies which have issued policies of insurance covering
all risk of direct physical loss, written notice of the terms of the mutual
waivers contained in this Article, and to have the insurance policies properly
endorsed, if necessary, to prevent the invalidation of the insurance coverages
by reason of the mutual waivers.
7.7 LIABILITY INSURANCE. Tenant at all times during the Lease term
shall, at its own expense, keep in full force and effect comprehensive general
liability insurance issued on an occurrence basis with "personal injury"
coverage and contractual liability coverage, with minimum limits of
$1,000,000.00 Combined Single Limit for bodily injury and/or property damage. If
Tenant provides liquor for on or off-site consumption, Tenant at all times
during the lease term shall, at its own expense, keep in full force and effect
Liquor Liability Insurance with minimum limits of $1,000,000.00. Landlord and
Manager shall be additional insureds on said policy or policies as evidenced by
an endorsement providing 1) 30 days notice of cancellation (ten (10) days notice
for non-payment) and that 2) Tenant's insurance is primary and Landiord's
insurance is excess and non-contributing. All insurance policies or duly
executed certificates specifying the additional insured status and waiver of
subrogation, for the same required to be carried by Tenant under this Lease,
together with satisfactory evidence of the payment of the premium thereof, shall
be deposited with Landlord on the date Tenant first occupies the Leased Premises
and upon renewals of such policies not less than thirty (30) days prior to the
expiration of the term of such coverage. All insurance required to be carried by
Tenant under this Lease shall be in form and content, and written by insurers
acceptable to Landlord, in its sole discretion, and have a deductible of
$5,000.00 or less. Tenant is responsible for the deductible regardless of the
amount. If Tenant shall fail to comply with any of the requirements contained
relating to insurance, Landlord may obtain such insurance and Tenant shall pay
to Landlord, on demand as Additional Rent hereunder, the premium cost thereof.
7.8 WORKER'S COMPENSATION INSURANCE. Tenant at all times during the
Lease term shall, at its own expense, keep in full force and effect Worker's
Compensation insurance with statutory limits and employer's liability coverage
in an amount not less than $500,000.00. This policy shall include a waiver of
subrogation in favor of indemnitees and Tenant shall provide Landlord with a
Certificate of Insurance evidencing such.
7.9 INCREASE IN COVERAGE. Landlord reserves the right to, from time to
time, increase minimum levels of coverage required. Such increase shall result
in coverage in amounts as required of tenants conducting similar business in
like or similar locales.
ARTICLE 8. - CONDEMNATION
8.1 CONDEMNATION. If any portion of the Leased Premises shall be taken
for any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain or by purchase in lieu thereof, or
sold under the threat of exercise of such power, Landlord shall have the option
to either terminate the Lease or restore and reconstruct, to the extent of
condemnation proceeds (excluding any proceeds for land) actually received after
the exercise by any mortgagee of the Property of an option to apply such
proceeds against Landlord's debt to such mortgagee, the Property and other
improvements on the Leased Premises to the extent necessary to make it
reasonably tenantable. Unless the Lease is terminated, immediately following
Landiord's completion of reconstruction, Tenant shall restore and reconstruct
those items for which it was responsible under the Leasehold Improvements
Agreement. The rent payable under this Lease during the unexpired portion of the
term shall be reduced to an amount determined by multiplying the Base Rent and
Additional Rent that would otherwise by payable but for this provision by the
ratio that the portion of the Leased Premises not rendered untenantable due to
such taking bears to the total area of the Leased Premises prior to the taking.
If the Lease is not terminated and the Landlord fails to substantially complete
such restoration and reconstruction within one-hundred and eighty working days
of the date of physical possession by condemning authority, Tenant may at its
option terminate this Lease by delivering written notice of termination to
Landlord, whereupon all rights and obligations of this Lease shall cease to
exist.
8.2 CONDEMNATION PROCEEDS. All compensation awarded for any taking (or
the proceeds of private sale in lieu thereof, whether for the whole or a part of
the Leased Premises, shall be the property of Landlord (whether such award is
compensation for damages to Landlord's or Tenant's interest in the Leased
Premises), and Tenant hereby assigns all of its interest in any such award to
Landlord; provided, however, Landlord shall have no interest in any award made
to Tenant for loss of business or for taking of Tenant's fixtures and other
property within the Leased Premises if a separate award for such items is made
to Tenant, provided such award does not diminish Landiord's award.
ARTICLE 9. - ASSIGNMENT OR SUBLEASE
9.1 TENANT ASSIGNMENT. Tenant shall not assign, in whole or in part,
this Lease, or allow it to be assigned, in whole or in part, by operation of law
or otherwise (including without limitation any merger, dissolution or transfer
of a controlling interest in any partnership or corporate Tenant, which merger,
dissolution or transfer shall be deemed an assignment or mortgage or pledge the
same) sublet the Leased Premises, in whole or in part, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld. In
considering whether to consent, Landlord may take into account, among other
factors, the reputation and credit worthiness of the proposed transferee, the
type of business proposed, the desires of other tenants in the Building, and any
other matters Landlord believes are pertinent. In no event shall any such
assignment or sublease ever release Tenant or any guarantor from any obligation
or liability hereunder. No assignee or sublessee of the Leased Premises or any
portion thereof may assign or sublet the Leased Premises or any portion thereof.
<PAGE>
9.2 CONDITIONS OF TENANT ASSIGNMENT. If Tenant desires to assign or
sublet all or any part of the Leased Premises, it shall so notify Landlord in
writing at least thirty (30) days in advance of the date on which Tenant desires
to make such assignment or sublease. Tenant shall provide Landlord with a copy
of the proposed assignment or sublease, payment of two hundred dollars
($200.00), and such sufficient information as requested by Landlord concerning
the proposed sublessee or assignee to allow Landlord to make informed judgments
as to the financial condition, reputation, operations and general desirability
of the proposed sublessee or assignee. If Landlord does not provide written
approval within fifteen (15) days, such request shall be deemed denied.
Notwithstanding the receipt of any such approval, any assignment or sublease
hereof shall cause an automatic termination of any renewal options, expansion
options or rights of first refusal. Upon the occurrence of an event of default
by Tenant under this Lease, if all or any part of the Leased Premises are then
assigned or sublet, Landlord, in addition to any other remedies provided by this
Lease or provided by law, may, at its option, collect directly from the assignee
or sublessee all rents becoming due to Tenant by reason of the assignment or
sublease, and Landlord shall have a security interest in all properties
belonging to Tenant on the Leased Premises to secure payment of such sums. No
collection directly by Landlord from the assignee or sublessee shall be
construed to constitute a novation or a release of Tenant or any guarantor from
the further performance of its obligations under this Lease. All legal fees and
expenses incurred by Landlord in connection with the review by Landlord of
Tenant's requested assignment or sublease pursuant to this Article, together
with any legal fees and disbursements incurred in the preparation and/or review
of any documentation, shall be the responsibility of Tenant and shall be paid by
Tenant within ten (10) days of demand for payment thereof, as rental hereunder.
If the rent due and payable by any assignee or sublessee under any such
permitted assignment or sublease (or a combination of the rent payable under
such assignment or sublease plus any bonus or any other consideration or any
payment incident thereto) exceeds the rent payable under this Lease for such
space, Tenant shall pay to Landlord all such excess rent and other excess
consideration within ten (10) days following receipt thereof by Tenant.
9.3 LANDLORD ASSIGNMENT. Landlord shall have the right to sell,
transfer or assign, in whole or in part, its rights and obligations under this
Lease and in the Property. Any such sale, transfer or assignment shall operate
to release Landlord from any and all liabilities under this Lease arising after
the date of such sale, assignment or transfer.
9.4 RIGHTS OF MORTGAGEE. Tenant accepts this Lease subject and
subordinate to any recorded lease, mortgage or deed of trust lien presently
existing, if any, or hereafter encumbering the Property and any renewals,
modifications, extensions or replacements thereof and to all existing ordinances
and recorded restrictions, covenants, easements, and agreements with respect to
the Property. Landlord hereby is irrevocably vested with full power and
authority to subordinate Tenant's interest under this Lease to any mortgage or
deed of trust lien hereafter placed on the Property, and Tenant agrees upon
demand to execute additional instruments subordinating this Lease as Landlord
may require. Upon any foreclosure, judicially or non-judicially, of any such
mortgage, or the sale of the Property in lieu of foreclosure, or any other
transfer of Landlord's interest in the Property, whether or not in connection
with a mortgage, Tenant hereby does, and hereafter agrees to attorn to the
purchaser at such foreclosure sale or to the grantee under any deed in lieu of
foreclosure or to any other transferee of Landlord's interest, and shall
recognize such purchaser, grantee, or other transferee as Landlord under this
Lease, and no further attornment or other agreement shall be required to effect
or evidence Tenant's attornment to and recognition of such purchaser or grantee
as Landlord hereunder. Such agreement of Tenant to attorn shall survive any such
foreclosure sale, trustee's sale, conveyance in lieu thereof, or any other
transfer of Landiord's interest in the Property. Tenant, upon demand, at any
time, before or after any such foreclosure sale, trustee's sale, conveyance in
lieu thereof, or other transfer shall execute, acknowledge, and deliver to the
mortgagee any written instruments and certificates evidencing such attornment as
the mortgagee or other prospective transferee may reasonably require.
Notwithstanding anything to the contrary implied in this Article, any mortgagee
under any mortgage shall have the right at any time to subordinate any such
mortgage to this Lease on such terms and subject to such conditions as the
mortgagee in its discretion may consider appropriate.
9.5 ESTOPPEL CERTIFICATES. Tenant agrees to furnish, from time to time,
within ten (10) days after receipt of a request from Landlord or Landlord's
mortgagee, a statement certifying, if applicable, all or some of the following:
Tenant is in possession of the Leased Premises; the Lease is in full force and
effect; the length of the Lease Term; the Term Commencement Date and the
scheduled expiration date of this Lease; the amount of the Base Rent and
Security Deposit; the name of any Guarantor of this Lease; the Lease is
unmodified (except as disclosed in such statement); Tenant claims no present
charge, lien, or claim of offset against rent; the rent is paid for the current
month, but is not prepaid for more than one (1) month and will not be prepaid
for more than one (1) month in advance; there is no existing default by reason
of some act or omission by Landlord; that Landlord has performed all inducements
required of Landlord in connection with this Lease, including construction
obligations, and Tenant accepts the Leased Premises as constructed; an
acknowledgment of the assignment of rentals and other sums due hereunder to the
mortgagee and agreement to be bound thereby; an agreement requiring Tenant to
advise the mortgagee of damage to or destruction of the Leased Premises by fire
or other casualty requiring reconstruction; an agreement by Tenant to give the
mortgagee written notice of Landlord's default hereunder and to permit the
mortgagee to cure such default within a reasonable time after such notice before
exercising any remedy Tenant might possess as a result of such default; and
such other matters as may be reasonably required by Landlord or Landlord's
mortgagee. Tenant's failure to deliver such statement, within ten (10) days
after request by Landlord, in addition to being a default under this Lease,
shall be deemed to establish conclusively that this Lease is unamended and in
full force and effect except as declared by Landlord, that Landlord is not in
default of any of its obligations under this Lease, and that Landlord has not
received more than one (1) month's rent in advance.
ARTICLE 10. - Intentionally Omitted
10.1 Intentionally Omitted.
10.2 Intentionally Omitted.
ARTICLE 11. - DEFAULT AND REMEDIES
<PAGE>
11.1 DEFAULT BY TENANT. The following shall be deemed to be events of
default by Tenant under this Lease; (1) Tenant shall fail to pay when due any
installment of rent or any other payment required pursuant to this Lease within
three (3) days after written notice thereof to Tenant; (2) Tenant shall fail to
commence business within thirty (30) days of the Rent Commencement Date or shall
abandon any substantial portion of the Leased Premises; (3) Tenant or any
guarantor of Tenant's obligations hereunder shall file a petition or be adjudged
bankrupt or insolvent under any applicable federal or state bankruptcy or
insolvency law or admit that it cannot meet its financial obligations as they
become due, or a receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant or any guarantor of Tenant's obligations hereunder;
(4) Tenant or any guarantor of Tenant's obligations hereunder shall make a
transfer in fraud of creditors or shall make an assignment for the benefit of
creditors; (5) Tenant shall do or permit to be done any act which results in a
lien being filed against the Leased Premises or the Property; (6) the
liquidation, termination, dissolution or (if the Tenant is a natural person) the
death of Tenant or any guarantor of Tenant's obligations hereunder; or (7)
Tenant shall be in default of any other term, provision or covenant of this
Lease, other than those specified in subparts (1) through (6), above, and such
default is not cured within ten(10) days after written notice thereof to Tenant,
provided however, if such default is of the type which can not be cured within
ten (10) days. Tenant shall not be in default if it commences to cure within
such ten (10) day period and diligently prosecutes such cure to completion.
11.2 REMEDIES FOR TENANT'S DEFAULT. Upon the occurrence of any event of
default set forth in this Lease, Landlord shall have the option to pursue any
one or more of the remedies set forth in this Article 11.2 without any
additional notice or demand:
(1) Without declaring the Lease terminated, Landlord may enter
upon and take possession of the Leased Premises, by any lawful means, and lock
out, expel or remove Tenant and any other person who may be occupying all or any
part of the Leased Premises without being liable for any claim for damages, and
relet the Leased Premises on behalf of Tenant and receive the rent directly by
reason of the reletting. Tenant agrees to pay Landlord on demand any deficiency
that may arise by reason of any reletting of the Leased Premises; further,
Tenant agrees to reimburse Landlord for any expenditures made by it in order to
relet the Leased Premises, including, but not limited to, remodeling and repair
costs, and Leasing Commissions.
(2) Without declaring the Lease terminated, Landlord may enter
upon the Leased Premises, by any lawful means, without being liable for any
claim for damages, and do whatever Tenant is obligated to do under the terms of
this Lease. Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in effecting compliance with Tenant's obligations under this
Lease; further, Tenant agrees that Landlord shall not be liable for any damages
resulting to Tenant from effecting compliance with Tenant's obligations under
this Lease caused by the negligence of Landlord or otherwise.
(3) Landlord may terminate this Lease, in which event Tenant shall
immediately surrender the Leased Premises to Landlord, and if Tenant fails to
surrender the Leased Premises, Landlord may, without prejudice to any other
remedy which it may have for possession or arrearages in rent, enter upon and
take possession of the Leased Premises, by any lawful means, and lock out, expel
or remove Tenant and any other person who may be occupying all or any part of
the Leased Premises without being liable for any claim for damages. Tenant
agrees to pay on demand the amount of all loss and damage which Landlord may
suffer for any reason due to the termination of this Lease under this Article
11.2, including (without limitation) loss and damage due to the failure of
Tenant to maintain and/or repair the Leased Premises as required hereunder
and/or due to the inability of Landlord to relet the Leased Premises on
satisfactory terms or otherwise.
In addition to any other remedy set forth in this Lease, if Landlord has made
rent concessions of any type or character, or waived any Base Rent, and Tenant
defaults at any time during the term of this Lease, the rent concessions,
including any waived Base Rent, shall be canceled and the amount of the Base
Rent or other rent concessions shall be due and payable immediately as if no
rent concessions or waiver of any Base Rent had ever been granted. A rent
concession or waiver of the Base Rent shall not relieve Tenant of any obligation
to pay any other charge due and payable under this Lease, including, without
limitation, any sum due under Article 2.3 of this Lease. Notwithstanding
anything contained in this Lease to the contrary, this Lease may be terminated
by Landlord only by written notice of such termination to Tenant given in
accordance with Article 14.7 below, and no other act or omission of Landlord
shall be construed as a termination of this Lease.
11.3 REMEDIES CUMULATIVE. All rights and remedies of Landlord herein or
existing at law or in equity are cumulative and the exercise of one or more
rights or remedies shall not be taken to exclude or waive the right to the
exercise of any other.
11.4 DEFAULT BY LANDLORD. If Landlord defaults in the performance of
any term, covenant or condition required to be performed by Landlord under this
Lease, Landlord shall have thirty (30) days following the receipt of written
notice from Tenant specifying such default to commence to cure such default,
provided that if Landlord has commenced actions to cure such default within said
thirty (30) day period, Landlord shall have all reasonable and necessary time to
complete such cure.
11.5 NOTICE TO MORTGAGEES. Provided that Tenant has received prior
written notice of the name and address of such lender, Tenant shall serve
written notice of any claimed default or breach by Landlord under this Lease
upon any lender which is a beneficiary under any deed of trust or mortgage
against the Leased Premises, and no notice to Landlord shall be effective
against Landlord unless such notice is served upon said lender; notwithstanding
anything to the contrary contained herein, Tenant shall allow such lender the
same period following lender's receipt of such notice to cure such default or
breach as is afforded Landlord.
ARTICLE 12. - RELOCATION
Tenant agrees that Landlord may relocate Tenant to other space in the
Building containing substantially the same amount of square feet as is contained
in the Leased Premises, provided that the actual cost of physically relocating
Tenant (excluding any and all consequential or other costs to Tenant) and the
cost of altering the new space to make it comparable to the Leased Premises is
borne by the Landlord. In addition, Landlord shall pay all other reasonable
actual out of pocket costs incurred by Tenant as a result of the relocation, but
in no event shall Landlord's obligation to pay costs imposed in this sentence
exceed the sum of $1.00 per square foot. In the event that the new Leased
Premises in which the Tenant is relocated does not consist of the identical
number of square feet as specified in Article 1.4, the parties shall execute an
instrument specifying the new number of square feet in the Leased Premises and
the change in the number of square feet contained in the Leased Premises shall
be deemed effective as of the date on which the Tenant occupies the new Leased
Premises in which it is relocated. No increase in square feet shall alter the
Base Rent payable by Tenant.
ARTICLE 13. - DEFINITIONS
13.1 ABANDON. "Abandon" means the vacating of all or a substantial
portion of the Leased Premises by Tenant, including without limitation, leaving
the Leased Premises unoccupied or discontinuing ongoing operations in the Leased
Premises, for more than twenty consecutive days, whether or not Tenant is in
default of the rental or other payments due under this Lease.
<PAGE>
13.2 ACT OF GOD OR FORCE MAJEURE. An "Act of God" or "Force Majeure" is
defined for purposes of this Lease as strikes, lockouts, sit-downs, material or
labor restrictions by any governmental authority, unusual transportation delays,
riots, floods, washouts, explosions, earthquakes, fire storms, weather
(including wet grounds or inclement weather which prevents construction), acts
of the public enemy, wars, insurrections, and/or any other cause not reasonably
within the control of Landlord or which by the exercise of due diligence
Landlord is unable wholly or in part, to prevent or overcome.
ARTICLE 14. - MISCELLANEOUS
14.1 WAIVER. Failure of Landlord to declare an event of default
immediately upon its occurrence, or delay in taking any action in connection
with an event of default, shall not constitute a waiver of the default, but
Landlord shall have the right to declare the default at any time and take such
action as is lawful or authorized under this Lease. Pursuit of any one or more
of the remedies set forth in Article 11 above shall not preclude pursuit of any
one or more of the other remedies provided elsewhere in this Lease or provided
by law, nor shall pursuit of any remedy hereunder or at law constitute
forfeiture or waiver of any rent or damages accruing to Landlord by reason of
the violation of any of the terms, provisions or covenants of this Lease.
Failure by Landlord to enforce one or more of the remedies provided hereunder or
at law upon any event of default shall not be deemed or construed to constitute
a waiver of the default or of any other violation or breach of any of the terms
provisions and covenants contained in this Lease. Landlord may collect and
receive rent due from Tenant without waiving or affecting any rights or remedies
that Landlord may have at law or in equity or by virtue of this Lease at the
time of such payment. Institution of a forcible detainer action to re-enter the
Leased Premises shall not be construed to be an election by Landlord to
terminate this Lease.
14.2 ACT OF GOD. Landlord shall not be required to perform any covenant
or obligation in this Lease, or be liable in damages to Tenant, so long as the
performance or non-performance of the covenant or obligation is delayed, caused
or prevented by an Act of God, Force Majeure or by Tenant.
14.3 ATTORNEY'S FEES. If Tenant defaults in the payment of any monetary
sums due under this Lease, and Landlord places in the hands of any attorney the
enforcement of such default, Tenant agrees to pay Landlord's costs of
collection, including reasonable attorneys' fees, whether suit is actually filed
or not. VVith respect to non-monetary defaults BY Tenant or any default BY
Landlord under this Lease, if suit is actually filed, the non-prevailing party
in such action shall pay the prevailing party's reasonable attorney's fees.
14.4 SUCCESSORS. This Lease shall be binding upon and inure to the
benefit of Landlord and Tenant and their respective heirs, personal
representatives, successors and assigns.
14.5 RENT TAX. If applicable in the jurisdiction where the Leased
Premises are situated, Tenant shall pay and be liable for all rental, sales and
use taxes or other similar taxes, if any, levied or imposed by any city, state,
county or other governmental body having authority, such payments to be in
addition to all other payments required to be paid to Landlord by Tenant under
the terms of this Lease. Any such payment shall be paid concurrently with the
payment of the Base Rent, Additional Rent, Operating Expenses or other charge
upon which the tax is based as set forth above.
14.6 INTERPRETATION. The captions appearing in this Lease are for
convenience only and in no way define, limit, construe or describe the scope or
intent of any Article. Grammatical changes required to make the provisions of
this Lease apply (1) in the plural sense where there is more than one tenant and
(2) to either corporations, associations, partnerships or individuals, males or
females, shall in all instances be assumed as though in each case fully
expressed. The laws of the State in which the Leased Premises is located shall
govern the validity, performance and enforcement of this Lease, except as
provided in Article 15.4. This Lease shall not be construed more or less
favorably with respect to either party as a consequence of the Lease or various
provisions hereof having been drafted by one of the parties hereto.
14.7 NOTICES. All rent and other payments required to be made by Tenant
shall be payable to Landlord, in care of Manager, at Manager's address set forth
on page 1 (or if no address be set forth for Manager, to Landlord at Landlord's
address set forth on page 1). All payments required to be made by Landlord to
Tenant shall be payable to Tenant at Tenant's address set forth on page 1. Any
notice or document (other than rent) required or permitted to be delivered by
the terms of this Lease shall be deemed to be delivered (whether or not actually
received) when deposited in the United States Mail, postage prepaid, certified
mail, return receipt required, addressed to the parties at the respective
addresses set forth on page 1 (or, in the case of Tenant, at the Leased
Premises), or to such other addresses as the parties may have designated by
written notice to each other, with copies of notices to Landlord being sent to
Landlord's address as shown on page 1. Manager shall be a co-addressee with
Landlord on all notices sent to Landlord by Tenant hereunder, and any notice
sent to Landlord and not to Manager, also, in accordance with this section shall
be deemed ineffective.
14.8 SUBMISSION OF LEASE. Submission of this Lease to Tenant for
signature does not constitute a reservation of space or an option to Lease. This
Lease is not effective until execution by and delivery to both Landlord and
Tenant.
14.9 CORPORATE AUTHORITY. If Tenant executes this Lease as a
corporation or a partnership (general or limited), each person executing this
Lease on behalf of Tenant hereby personally represents and warrants that: Tenant
is a duly authorized and existing corporation or partnership (general or
limited), Tenant is qualified to do business in the state in which the Leased
Premises are located, the corporation or partnership (general or limited) has
full right and authority to enter into this Lease, each person signing on behalf
of the corporation or partnership (general or limited) is authorized to do so,
and the execution and delivery of the Lease by Tenant will not result in any
breach of, or constitute a default under any mortgage, deed of trust, lease,
loan, credit agreement, partnership agreement, or other contract or instrument
to which Tenant is a party or by which Tenant may be bound.
14.10 MULTIPLE TENANTS. If this Lease is executed by more than one
person or entity as "Tenant," each such person or entity shall be jointly and
severally liable hereunder. It is expressly understood that any one of the named
Tenants shall be empowered to execute any modification, amendment, exhibit,
floor plan, or other document herein referred to and bind all of the named
Tenants thereto; and Landlord shall be entitled to rely on same to the extent as
if all of the named Tenants had executed same.
14.11 TENANT'S FINANCIAL STATEMENTS.
(a) Tenant represents and warrants to Landlord that, as of the
date of execution of this Lease by Tenant, the financial statements of Tenant
provided to Landlord prior to or simultaneously with the execution of this Lease
accurately represent the financial condition of Tenant as of the dates and for
the periods indicated therein, such financial statements are true and do not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements included therein not misleading
and there has been no material adverse change in the financial condition or
business prospects of Tenant since the respective dates of such financial
statements.
<PAGE>
(b) Upon request of Landlord, but no more often than one time per
year. Tenant hereby agrees to deliver to landlord and/or to any lender
designated by Landlord such financial records of Tenant as may be reasonably
required by such lender. Such statements may include but not be limited to the
past three (3) years' financial statements of Tenant. All such financial
statements shall be received by Landlord in confidence and shall be used only
for the purposes herein set forth.
14.12. SEVERABILITY. If any provision of this Lease or the application
thereof to any person or circumstances shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application of such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law. Each covenant and agreement
contained in this Lease shall be construed to be a separate and independent
covenant and agreement, and the breach of any such covenant or agreement by
Landlord shall not discharge or relieve Tenant from Tenant's obligation to
perform each and every covenant and agreement of this Lease to be performed by
Tenant.
14.13 LANDLORD'S LIABILITY. If Landlord shall be in default under this
Lease and, if as a consequence of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out of the
right, title, and interest of Landlord in the Property as the same may then be
encumbered and neither Landlord nor any person or entity comprising Landlord
shall be liable for any deficiency. In no event shall Tenant have the right to
levy execution against any property of Landlord nor any person or entity
comprising Landlord other than its interest in the Property as herein expressly
provided.
14.14 SALE OF PROPERTY. Upon any conveyance, sale or exchange of the
Leased Premises or assignment of this Lease, Landlord shall be and is hereby
entirely free and relieved of all liability under any and all of its covenants
and obligations contained in or derived from this Lease arising out of any act,
occurrence, or omission relating to the Leased Premises or this Lease occurring
after the consummation of such conveyance, sale, exchange or assignment.
14.15 TIME IS OF THE ESSENCE. The time of the performance of all of the
covenants, conditions and agreements of this Lease is of the essence in this
Lease.
14.16 SUBTENANCIES. At Landlord's option, the voluntary or other
surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not
work a merger of estates and shall operate as an assignment of any or all
permitted subleases or subtenancies.
14.17 BROKERS. The parties hereto acknowledge that the brokers named in
Article 1.13 were the sole real estate brokers that represented the Landlord
herein, and that no commissions are owed by Landlord to any other brokers
whatsoever, and Tenant agrees to indemnify Landlord from claims for commissions
from any other brokers arising out of the execution of this Lease.
ARTICLE 15. AMENDMENT AND LIMITATION OF WARRANTIES
15.1 ENTIRE AGREEMENT. IT IS EXPRESSLY AGREED BY TENANT, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERENCES TO EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF THE
PARTIES; THAT THERE ARE, AND WERE, NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THE SUBJECT
MATTER OF THIS LEASE OR OF ANY EXPRESSLY MENTIONED EXTRINSIC DOCUMENTS THAT ARE
NOT INCORPORATED IN WRITING IN THIS LEASE.
15.2 AMENDMENT. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR
EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LANDLORD AND TENANT.
15.3 LIMITATION OF WARRANTIES. LANDLORD AND TENANT EXPRESSLY AGREE THAT
THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE,
AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN
THIS LEASE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TENANT EXPRESSLY
ACKNOWLEDGES THAT LANDLORD HAS MADE NO WARRANTIES OR REPRESENTATIONS CONCERNING
ANY HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL MATTERS AFFECTING ANY PART OF
THE PROPERTY, AND LANDLORD HEREBY EXPRESSLY DISCLAIMS AND TENANT WAIVES ANY
EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY SUCH MATTERS.
15.4 INDEMNIFICATION AND HOLD HARMLESS. TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, TENANT AGREES TO FOREVER INDEMNIFY, PROTECT, DEFEND AND HOLD
HARMLESS LANDLORD AND ITS AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS,
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY,
"INDEMNITEES") FOR, FROM AND AGAINST ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES,
LIENS, FINES, PENALTIES, COSTS, CAUSES OF ACTION, SUITS, JUDGMENTS AND EXPENSES
(INCLUDING COURT COSTS, ATTORNEYS' FEES, AND COSTS OF INVESTIGATION), OF ANY
NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY, DIRECTLY OR INDIRECTLY
ARISING OUT OF, CAUSED BY, OR FROM (IN WHOLE OR IN PART) (1) THIS LEASE, (2) THE
CONDITION OF THE LEASED PREMISES OR 3) ANY ACT OR OMISSION OF TENANT, ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY TENANT, OR ANYONE THAT TENANT CONTROLS OR
EXERCISES CONTROL OVER (COLLECTIVELY, "LIABILITIES"), EVEN IF SUCH LIABILITIES
ARISE FROM OR ARE ATTRIBUTED TO THE CONCURRENT NEGLIGENCE OF ANY INDEMNITEE. THE
ONLY LIABILITIES WITH RESPECT TO WHICH TENANT'S OBLIGATION TO INDEMNIFY THE
INDEMNITEES DOES NOT APPLY IS WITH RESPECT TO LIABILITIES RESULTING FROM THE
SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. TENANT SHALL, WITHIN
SIXTY (60) DAYS, ADVISE LANDLORD IN WRITING OF ANY ACTION, ADMINISTRATIVE OR
LEGAL PROCEEDING OR INVESTIGATION AS TO WHICH THIS INDEMNIFICATION MAY APPLY,
AND TENANT AT TENANT'S EXPENSE, SHALL ASSUME ON BEHALF OF LANDLORD (AND OTHER
INDEMNITEES) AND CONDUCT WITH DUE DILIGENCE AND IN GOOD FAITH THE DEFENSE
THEREOF WITH COUNSEL SATISFACTORY TO LANDLORD. TENANT SHALL ALSO, WITHIN SIXTY
(60) DAYS, ADVISE LANDLORD IN WRITING OF KNOWLEDGE OR NOTIFICATION OF ANY
OCCURRENCE FOR WHICH IT BELIEVES LANDLORD TO BE LIABLE DUE TO ITS SOLE
NEGLIGENCE OR THE WILLFUL MISCONDUCT OF AN EMPLOYEE. SUCH NOTIFICATION DOES NOT
CONSTITUTE ACCEPTANCE OF ANY LIABILITY ON THE PART OF THE LANDLORD; PROVIDED,
HOWEVER, THAT ANY INDEMNITEE SHALL HAVE THE RIGHT, AT ITS OPTION, TO BE
REPRESENTED THEREIN BY ADVISORY COUNSEL OF ITS OWN SELECTION AND AT ITS OWN
EXPENSE. IN THE EVENT OF FAILURE BY TENANT TO FULLY PERFORM in ACCORDANCE WITH
THE INDEMNIFICATION PARAGRAPH, LANDLORD, AT ITS OPTION, AND WITHOUT RELIEVING
TENANT OF ITS OBLIGATIONS HEREUNDER, MAY SO PERFORM, BUT ALL COSTS AND EXPENSES
SO INCURRED BY LANDLORD IN THAT EVENT SHALL BE REIMBURSED BY TENANT TO LANDLORD,
TOGETHER WITH INTEREST ON THE SAME FROM THE DATE ANY SUCH EXPENSE WAS PAID BY
LANDLORD UNTIL REIMBURSED BY TENANT, AT THE RATE OF INTEREST PROVIDED TO BE PAID
ON JUDGMENTS, BY THE LAW OF THE JURISDICTION TO WHICH THE INTERPRETATION OF THIS
LEASE IS SUBJECT. TENANT AND LANDLORD AGREE THAT THE LAWS OF THE STATE OF TEXAS
SHALL GOVERN THIS INDEMNIFICATION AND HOLD HARMLESS PROVISION.
<PAGE>
15.5 WAIVER AND RELEASES. TENANT SHALL NOT HAVE THE RIGHT TO WITHHOLD
OR TO OFFSET RENT OR TO TERMINATE THIS LEASE EXCEPT AS EXPRESSLY PROVIDED
HEREIN. TENANT WAIVES AND RELEASES ANY AND ALL AND OFFSET RIGHTS.
EXECUTED by Tenant and by Landlord on the dates set forth below.
LANDLORD: MCNEIL REAL ESTATE TENANT: DEVELOPED TECHNOLOGY
FUND XXVII, L.P. RESOURCE, INC.
BY: MCNEIL REAL ESTATE MANAGEMENT,
INC., ITS AGENT
By: /s/ Dean J. Lontos By: /s/ John P. Hupp
----------------------------- -----------------------------
Name: Dean J. Lontos Name: John P. Hupp
----------------------------- -----------------------------
Title: Vice President Title: President
----------------------------- -----------------------------
Date: 4/2/97 Date: 3/31
----------------------------- -----------------------------
WITNESS: WITNESS:
By: /s/ Melinda S. Benson By: /s/ Karen S. Johnson
---------------------- ----------------------
Printed Name: Melinda S. Benson Printed Name: Karen S. Johnson
---------------------- ----------------------
Date: 4-2-97 Date: 4-1-97
---------------------- ----------------------
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
ONE CORPORATE CENTER
7401 Metro Boulevard, Lot 1, Block 1, One Corporate Center
INITIALS:
Landlord:
Tenant:
<PAGE>
EXHIBIT "B"
LEASED PREMISES
[FLOOR PLAN]
7300 BUILDING - 5TH FLOOR
11 JANUARY 96
INITIALS:
Landlord:
Tenant:
<PAGE>
EXHIBIT "C"
ACCEPTANCE OF LEASED PREMISES
This Memorandum is executed in connection with the Lease for space in
the One Corporate Center III Building in Edina, MN, dated March 11, 1997,
between McNeil Real Estate Fund XXVII, L.P. as Landlord, and Developed
Technology Resource, Inc., as Tenant.
Tenant acknowledges and agrees that:
1. The Leased Premises (as defined in the Lease) are tenantable and
accepted by Tenant as suitable for the purpose for which they were let.
2. All construction of improvements at the Leased Premises is completed,
has been inspected by Tenant, and is acceptable.
3. The Commencement Date of the Lease is agreed to be the 1st day of
May, 1997.
4. The expiration date of the Lease is agreed to be the 30th day of
April 2002.
5. All other terms and conditions of the Lease are ratified and
acknowledged to be unchanged.
Executed and delivered this 29th day of April, 1997.
Tenant
Developed Technology Resource, Inc.
By: /s/ John P. Hupp
---------------------------
Name: John P. Hupp
-------------------------
Title: President
------------------------
INITIALS:
Landlord:
Tenant:
<PAGE>
EXHIBIT "D"
RULES AND REGULATIONS
OFFICE
1. Landlord agrees to furnish Tenant two keys without charge for Tenant's
initial entry. Tenant is not allowed to re-key the Leased Premises without
Landlord's prior written consent. All keys to the Leased Premises shall be
surrendered to Landlord upon termination of this Lease.
2. Tenant will refer all contractors, contractor's representatives and
installation technicians rendering any service on or to the Leased Premises for
Tenant to Landlord for Landlord's approval before performance of any contractual
service. Tenant's contractors and installation technicians shall comply with
Landlord's rules and regulations pertaining to construction and installation.
The provision shall apply to all work performed on or about the Leased Premises,
including installation of telephones, telegraph equipment, electrical devices
and attachments and installations of any nature affecting floors, walls,
woodwork, trim, windows, ceilings and equipment or any other physical portion of
the Leased Premises or the Property.
3. Tenant shall not at any time occupy any part of the Leased Premises as
sleeping or lodging quarters.
4. Tenant shall not place, install or operate on the Leased Premises or in any
part of the Property any engine, stove or machinery, or conduct mechanical
operations or cook thereon or therein, or place or use in or about the Leased
Premises or the Property any explosives, gasoline, kerosene, oil, acids,
caustics, or any flammable, explosive or hazardous material without written
consent of Landlord.
5. Landlord will not be responsible for lost or stolen merchandise, trade
fixtures, furniture, furnishings, personal property, equipment, money or jewelry
from the Leased Premises or the Property regardless of whether such loss occurs
when the area is locked against entry or not.
6. No dogs, cats, fowl, or other animals shall be brought into or kept in or
about the Leased Premises or Property, except seeing eye dogs.
7. None of the parking, plaza, recreation or lawn areas, entries, passages,
doors, elevators, hallways or stairways shall be blocked or obstructed or any
rubbish, litter, trash, or material of any nature placed, emptied or thrown into
these areas or such area used by Tenant's agents, employees or invitees at any
time for purposes inconsistent with their designation by Landlord.
8. The water closets and other water fixtures shall not be used for any purpose
other than those for which they were constructed, and any damage resulting to
them from misuse or by the defacing or injury of any part of the Property shall
be borne by the person who shall occasion it. No person shall waste water by
interfering with the faucets or otherwise.
9. No person shall disturb occupants of the Property by the use of any radios,
record players, tape recorders, musical instruments, the making of unseemly
noises or any unreasonable use.
10. Nothing shall be thrown out of the windows of the Property or down the
stairways or other passages.
11. Movement in or out of the Property of furniture or office supplies and
equipment which require use of elevators or stairways, or lobby, shall be
restricted to hours designated by Landlord. All such movement shall be under
supervision of Landlord and carried out in the manner agreed between Tenant and
Landlord by prearrangement before performance.
12. Landlord shall not be liable for any damages from the stoppage of elevators
for necessary or desirable repairs or improvements or delays of any sort or
duration in connection with the elevator service.
13. Tenant shall not lay floor covering within the Leased Premises without
written approval of Landlord. The use of cement or other similar adhesive
materials not easily removed with water is expressly prohibited.
14. Tenant agrees to cooperate and assist Landlord in the prevention of
canvassing, soliciting and peddling within the Property.
15. During all hours other than regular hours, Landlord reserves the right to
exclude from the Property, all persons who are not known to the Property
security personnel and who do not present a pass to the Property signed by the
Tenant. Each Tenant shall be responsible for all persons for whom Tenant
supplies a pass.
16. If any governmental license or permit shall be required for the proper and
lawful conduct of Tenant's business, Tenant, before occupying the Leased
Premises, shall procure and maintain such license or permit and submit it for
Landlord's inspection. Tenant shall at all times comply with the terms of any
such license or permit.
17. Except with the prior written consent of Landlord, Tenant shall not sell, or
permit the sale from the Leased Premises of, or use or permit the use of any
Common Area for the sale of any other goods or merchandise.
18. Tenant shall not install any radio or television antenna or satellite dish,
loudspeaker or other device on the exterior walls or roof of the Building.
19. Tenant shall not use in any space, or in the Common areas of the Building,
any handtrucks except those equipped with rubber tires and side guards or such
other material handling equipment as Landlord may approve. No other vehicles of
any kind shall be brought by Tenant into Building or kept in or about the
Leased Premises without prior written approval of Landlord.
20. Tenant shall store all its trash and garbage within the Leased Premises
until daily removal of same by Tenant to such location in the Building as may be
designated from time to time by Landlord. No material shall be placed in the
Building trash boxes or receptacles if such material is of such nature that it
may not be disposed of in the ordinary and customary manner of removing and
disposing of trash and garbage in the city in which the Leased Premises is
located without being in violation of any law or ordinance governing such
disposal.
21. Tenant shall not permit the use or the operation of any coin operated
machines on the Leased Premises, including, without limitation, vending
machines, video games, pinball machines, or pay telephones without the prior
written consent of Landlord.
<PAGE>
EXHIBIT "D"
RULES AND REGULATIONS
OFFICE
22. As used in the Lease, "business days" means Monday through Saturday (except
holidays), "regular hours" means 8:00 a.m. to 6:00 p.m. on weekdays and 8:00
a.m. to 1:00 p.m. on Saturday; and "holidays" means New Years Day, Memorial
Day, Fourth of July, Labor Day, Thanksgiving Day and Christmas Day, together
with such other holidays designated by Landlord consistent with those holidays
designated by landlords of comparable office buildings located in the county in
which the Building is located.
23. No safe or article, the weight of which may constitute a hazard or danger to
the Building or its equipment, shall be moved into the Leased Premises. Safes
and other equipment, the weight of which is not excessive, shall be moved into,
from or about the Building during such hours and in such manner as shall be
prescribed by the Landlord, and the Landlord shall have the right to designate
the location of such articles in the space hereby demised.
24. Bicycles or other vehicles shall not be permitted in the offices, halls, or
corridors of the Buildings, nor shall any obstruction of sidewalks of entrances
of the Building by such be permitted.
25. The Landlord reserves the right to make such other and further reasonable
rules and regulations as in its judgment may from time to time be necessary and
desirable for the safety, care, and cleanliness of the Leased Premises and for
the preservation of good order therein. Such rules and regulations shall be
effective upon receipt of changes and/or additions as provided by the provision
for Notice, Article 14.7 of said Lease.
26. Landlord desires to maintain in the Property the highest standard of dignity
and good taste consistent with comfort and convenience for Tenants. Any action
or condition not meeting this high standard should be reported directly to
Landlord. Your cooperation will be mutually beneficial and sincerely
appreciated. Landlord reserves the right to make such other and further
reasonable rules and regulations as in its judgment may from time to time be
necessary, for the safety, care and cleanliness of the Leased Premises and for
the preservation of good order therein.
27. Unless Tenant executes a Parking Addendum, Tenant shall have no right to use
any parking facilities of the Building.
INITIALS:
Landlord:
Tenant:
<PAGE>
EXHIBIT "E"
LEASEHOLD IMPROVEMENTS AGREEMENT
This Exhibit is attached to and forms a part of the Lease dated March
11, 1997, between McNeil Real Estate Fund XXVII, L.P. as Landlord, and Developed
Technology Resource, Inc., as Tenant, covering the Leased Premises commonly
known as Unit #550, located at One Corporate Center III Office Building, Edina,
MN ("the Lease"). The terms used in this Exhibit shall have the same definitions
as set forth in the Lease. The provisions of this Exhibit shall prevail over any
inconsistent or conflicting provisions of the Lease.
1 . DESCRIPTION OF IMPROVEMENTS. Landlord shall, at Tenant's expense
(but subject to the "Allowance" defined below), construct certain improvements
on or about the Leased Premises (the "Work") in accordance with certain plans
and specifications attached hereto as Exhibit "1" and incorporated herein by
this reference. Tenant hereby approves the plans and specifications attached
hereto as Exhibit "1".
2. PRELIMINARY PLANS. If the plans and specifications attached hereto
are final plans and specifications, such final plans and specifications are
hereinafter referred to as the "Final Plans", and the remainder of this
Paragraph shall be inoperative. If the plans and specifications attached hereto
are preliminary plans, Landlord shall prepare final working drawings and
outlined specifications for the Work and submit such plans and specifications to
Tenant for its approval on or before March 13, 1997. Tenant shall approve or
disapprove such drawings and specifications within three ( 3 ) days after
receipt from Landlord. Tenant shall have the right to disapprove such drawings
and specifications only if they materially differ from the plans and
specifications attached hereto. If Tenant disapproves such drawings and
specifications, Landlord and Tenant shall promptly meet in an attempt to resolve
any dispute regarding such drawings and specifications. If the parties are
unable to agree upon the final working drawings and specifications for the Work
on or before March 20, 1997, Landlord may, at Landlord's option, either (a)
terminate this Lease upon seven (7) days' prior written notice to Tenant, in
which case neither Landlord nor Tenant shall have further liability to the
other, or (b) submit the matter to conclusive and binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. Final working drawings and specifications prepared in accordance
with this Paragraph 2 and approved by Landlord and Tenant (or determined by
arbitration as set forth above) are hereinafter referred to as the "Final
Plans".
3. BUDGET. In connection with the preparation of the Final Plans,
Landlord shall prepare and the parties shall initial a final budget for the work
contemplated by the Final Plans (the "Budget"). After the Budget has been
initialed by both parties, the Budget shall be attached to this Exhibit and form
a part hereof. The Budget shall be on a form designated by Landlord and shall
list the major cost items involved in such work and the cost allocated to each
such item, with a total cost indicated for all items. However, if the Budget is
not so initialed or so attached, that shall not impair or release Tenant from
any of Tenant's obligations herein or otherwise adversely affect Landlord's
rights herein.
4. COMPLETION OF THE WORK. For the purposes of the Lease, the Work
shall be conclusively deemed to be substantially completed and the Leased
Premises delivered to Tenant when all Work described in the Final Plans is
completed, except for minor items of work (e.g., "punch list items") which can
be completed with only minor interference with Tenant's conduct of business on
the Leased Premises.
5. CHANGES. Landlord's obligation to prepare the Leased Premises for
Tenant's occupancy is limited to the completion of the Work set forth in the
plans and specifications attached hereto as Exhibit "1", Landlord shall not be
required to furnish, construct or install any items not shown thereon. If Tenant
requests any change, addition or alteration ("Changes") in such plans and
specifications or in the construction of the Work, Landlord shall promptly give
Tenant an estimate of the cost of such Changes and the resulting delay in the
delivery of the Leased Premises to Tenant. Within three (3) days after receipt
of such estimate, Tenant shall give Landlord written notice whether Tenant
elects to proceed with such Changes. If Tenant notifies Landlord in writing that
Tenant elects to proceed with such Changes and if Landlord approves such
Changes, then the Landlord shall, at Tenant's expense, promptly make such
Changes. In lieu of giving formal written notice, as set forth above, the
parties may indicate their agreement regarding any Changes by making such
Changes on the Final Plans and having both parties date and sign or initial each
of the Changes. If Tenant fails to notify Landlord of its election within the
three (3) day period, Landlord may, at its sole election, either (a) make such
Changes at Tenant's expense or (b) complete the Work without making such
Changes. Tenant shall pay or reimburse Landlord for the costs of such Changes
within fifteen (15) days after billing. Any delay caused by Tenant's request
for any Changes or from the construction of any Changes shall not, in any event,
delay the Rent Commencement Date, which shall occur on the date it would have
occurred but for such request for or such construction of any Changes. The Work
(including any Changes) shall be the property of Landlord and shall remain upon
and be surrendered with the Leased Premises upon the expiration of the Lease
Term.
6. CONSEQUENTIAL DAMAGES. Nothing contained in this Exhibit shall
render Landlord liable to Tenant for consequential damages arising out of any
breach or default under this Exhibit, including, without limitation loss of use
or income from the Building or the Leased Premises or any equipment or
facilities therein, whether by Tenant or any person claiming through or under
Tenant.
7. ALLOWANCE.
(a) As stated above, all Work shall be done at Tenant's expense,
including building permit fees, other fees, architectural and engineering
expenses and other expenses relating to the Work. However, Landlord shall
provide Tenant with an allowance of $11.00 per square foot in the Leased
Premises (the "Allowance"). Tenant understands that if the cost of the Work,
including without limitation any changes in the Work, exceeds the Allowance,
then Tenant shall be solely responsible for all such costs in excess of the
Allowance. The Allowance shall be used only to pay actual construction costs. If
at any time Landlord estimates that the cost of the Work will exceed the
Allowance, Tenant shall on request deposit with Landlord the amount of the
excess.
(b) If the actual costs exceed the Allowance, then Tenant shall pay
the excess to Landlord on demand, and Landlord shall not be responsible
therefor.
(c) If the actual construction costs are less than the Allowance,
then Tenant shall not be entitled to any portion of the unexpended Allowance,
which shall belong to Landlord.
<PAGE>
EXHIBIT "E"
LEASEHOLD IMPROVEMENTS AGREEMENT
8. LETTER OF ACCEPTANCE. Tenant's occupancy of the Leased Premises
shall constitute its acceptance of the Work and Landlord's satisfactory
completion of its obligations herein. Nevertheless, after substantial completion
of the Work, Tenant shall sign an Acceptance of Premises memorandum in the form
attached as an exhibit to this Lease.
9. LIMITATION. Notwithstanding any other provisions of this Exhibit or
the Lease, Landlord shall not be required to perform all or any portion of the
Work if doing so would cause any additional work, not described herein as the
Work, to be required to be performed under applicable legal requirements
(whether or not due to changes in zoning requirements, the existence of
nonconforming uses, non-compliance with conditions to permits or variances or
similar matters).
10. LANDLORD'S LIABILITY. If Landlord shall be in default under this
Exhibit and, if as a consequence of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out of the
right, title, and interest of Landlord in the Property as the same may then be
encumbered and neither Landlord nor any person or entity comprising Landlord
shall be liable for any deficiency. In no event shall Tenant have the right to
levy execution against any property of Landlord nor any person or entity
comprising Landlord other than its interest in the Property as herein expressly
provided. In addition, no sum payable to Tenant as the result of any breach or
default by Landlord under this Exhibit shall be deducted from or offset against
any rent or other sums payable under the Lease, and no such breach or default by
Landlord under this Exhibit shall be the subject of a defense or counterclaim in
any action or proceeding brought by Landlord to enforce its rights under the
Lease or excuse Tenant from the performance of any of its obligations under the
Lease or relieve Tenant of any of its liabilities thereunder.
Attach plans and specifications as Exhibit 1.
INITIALS:
Landlord: ----------
Tenant: ----------
<PAGE>
EXHIBIT "1"
PLANS & SPECIFICATIONS
[FLOOR PLAN]
SPACE PLAN - SUITE 550
INITIALS:
Landlord: ----------
Tenant: ----------
<PAGE>
DEVELOPED TECHNOLOGY RESOURCE INC.
SUITE 550
LEASEHOLD IMPROVEMENTS
DESCRIPTION ESTIMATE
Demolition 610.00
Carpentry 75.00
Millwork/Cabinetry 225.00
Doors/Frames/Hardware 1,900.00
Glass/Glazing 160.00
Drywall 1,100.00
Paint & Wallcovering 2,390.00
Flooring 3,099.00
Acoustical Ceiling 240.00
Electrical 4,062.00
Project administration 970.00
Building Permit 430.00
Contractor's Fee 1,714.00
BASE CONSTRUCTION BID 18,020.00
CHANGE TO BASE BID
Substitute melamine shelf for Emco
Substitute bound base for surged
Substitute Halo can lights for Peachtree
Substitute hollow for solid core closet door
No coffee line (1,325.00)
REVISED BASE BID CONSTRUCTION 16,695.00
Architectural Fees 807.00
HVAC 1,076.00
TOTAL PROJECT COST 18,578.00
LESS LANDLORD COST 3,027.00
TOTAL TENANT COST 15,551.00
LEASE ALLOWANCE 11,099.00
OVER(UNDER)ALLOWANCE 4,452.00
OPTION: Replace building standard light lenses in rooms 551, 552, and 553 with
Para-Lite 2 parabolic lenses. Add $673.00
ANY COST OVER THE LEASE ALLOWANCE ARE THE RESPONSIBILITY OF THE TENANT. THESE
COSTS ARE DUE UPON RECEIPT OF INVOICE.
PROJECT COSTS ACKNOWLEDGED & APPROVED BY: /s/ John P. Hupp
------------------------------------
DATE: 4/8/97
------------------------------------
<PAGE>
EXHIBIT "F"
PARKING PROVISION
This Exhibit is attached to and forms a part of the Office Building
Lease dated March 11, 1997, between McNeil Real Estate Fund XXVII, L.P., as
Landlord, and Developed Technology Resources, Inc., as Tenant, covering the
Leased Premises commonly known as #550, One Corporate Center III, located in
Edina, MN ("the Lease"). The terms used in this Exhibit shall have the same
definitions as set forth in the Lease. The provisions of this Exhibit shall
prevail over any inconsistent or conflicting provisions of the Lease.
1. Landlord hereby grants to Tenant a non-exclusive license to use the
following number and types of parking spaces (the "Spaces") for the following
initial monthly rental fees:
Type Number of Spaces Monthly Rental Fee Per Space
---- ---------------- ----------------------------
Non-Reserved Spaces 5 $ No Charge
The Spaces will be located in the areas designated from time to time by Landlord
for tenant parking. This license is subject to the terms and conditions set
forth below.
2. The Spaces shall be used only for the purpose of parking automobiles
for a term commencing on the Rent Commencement Date set forth in the Lease and
terminating upon the expiration or termination of the Lease for whatever reason.
3. All automobiles (including all contents thereof shall be parked in
the Spaces at the sole risk of Tenant, its employees, agents, invitees and
licensees. Landlord has no duty to insure any automobiles (including the
contents thereof, and Landlord is not responsible for the protection and
security of such automobiles. Landlord shall have no liability whatsoever for
any property damage and/or personal injury which might occur as a result of or
in connection with the parking of said automobiles in any of the Spaces, and
Tenant hereby agrees to indemnify and hold Landlord harmless from and against
any and all liabilities, costs, claims, expenses, and/or causes of action which
Landlord may incur in connection with or arising out of the use of the Spaces by
Tenant or its employees, agents, invitees, or licensees pursuant to this
Exhibit.
4. This Exhibit shall not create a bailment between the parties hereto.
The only relationship created between Landlord and Tenant regarding the Spaces
is that of licensor and licensee, respectively.
5. In its use of the Spaces, Tenant shall follow all of the rules and
regulations of the Building applicable thereto, as the same may be amended from
time to time. Upon the occurrence of any breach of such rules, any failure to
pay when due all monthly rental fees due hereunder or any default by Tenant
under the Lease, Landlord shall be entitled to terminate the license given
hereby, by written notice to Tenant, in which event Tenant's right to utilize
the Spaces shall thereupon automatically cease.
6. Tenant shall be responsible for ensuring that its employees and
agents do not park their cars in visitor parking spaces or in parking spaces or
areas, if any, reserved or designated by Landlord for the use of other tenants
or for other purposes. Tenant agrees to furnish to Landlord the state automobile
license numbers of automobiles of Tenant and its employees who will occupy
Spaces from time to time within five (5) days from its receipt of written notice
from Landlord requesting such information. Landlord shall be entitled to utilize
whatever security device Landlord deems necessary (including but not limited to
the issuance of parking stickers or access cards), to insure that only those
tenants leasing Spaces in the designated parking areas are using such Spaces. In
the event Tenant, its agents or employees wrongfully park in any of the parking
areas designated for the use of others, Landlord shall be entitled and is hereby
authorized to have any such automobile towed away, at Tenant's sole risk and
expense, and Landlord is further authorized to impose upon Tenant an
administrative fee of $25 for each such occurrence. Tenant hereby agrees to pay
all amounts failing hereunder upon demand therefor.
INITIALS:
Landlord:
Tenant:
<PAGE>
ADDENDUM
TO OFFICE BUILDING LEASE
Dated March 11, 1997
between McNeil Real Estate Fund XXVII, L.P., as Landlord
and
Developed Technology Resource, Inc. as Tenant
THIS ADDENDUM is made this llth day of March, 1997, by and between McNeil Real
Estate Fund XXVII, L.P., as Landlord and Developed Technology Resource, Inc. as
Tenant.
WHEREAS, Landlord and Tenant are the parties to the above-described Lease for
the premises commonly known as Suite #550, One Corporate Center III, located in
Edina, Minnesota; and
NOW, THEREFORE, in consideration of the mutual promises and obligations
contained herein, the adequacy and sufficiency of which is hereby acknowledged,
Landlord and Tenant contract and agree as follows:
Delivery of Possession:
So long as Tenant has executed and delivered this Lease to Landlord on or prior
to April 1, 1997, in the event Landlord does not deliver possession of the
Leased Premises to Tenant by April 28, 1997 and any delay in such delivery is
not caused by Tenant, then Tenant shall have the right to immediately terminate
this Lease upon written notice, given to Landlord by April 30, 1997.
Leasehold Improvement Costs:
Once Landlord has obtained bids for the improvements contemplated by the
Leasehold Improvements Agreement, and if the cost of the bid (including permit
fees, architectural, etc.) selected by Landlord exceeds the Allowance, then
Landlord shall notify Tenant in writing of Tenant's obligation to pay the amount
in excess of the Allowance. Tenant shall have two days from the time of such
notice to elect to either (i) terminate the Lease by written notice to Landlord
or, (ii) deposit with Landlord the amount of such excess cost. In the event
Landlord has not received a written notice of termination within the time period
specified in the preceding sentence, then Tenant shall be obligated to pay for
such excess costs.
Security Deposit.
Providing Tenant is not in default, and has never been in default of the terms
and conditions contained herein, the Security Deposit amount as referenced in
Article 1.7 of the Lease Agreement shall be reduced by the amount of $1,681.67
after the first year of the Lease Term.
EXCEPT AS HEREBY AMENDED, all other provisions of said Lease are hereby
confirmed and ratified.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum on the date
first written above.
LANDLORD: TENANT:
McNeil Real Estate Fund XXVII, L.P. Developed Technology Resources, Inc.
by McNeil Real Estate Management, Inc.
its agent
/s/ Dean J. Lontos /s/ John P. Hupp
- -------------------------------------- --------------------------------------
By: Dean J. Lontos By: John P. Hupp
----------------------------------
Its: Vice President Its: President
----------------------------------
EXHIBIT 21.1
SUBSIDIARIES OF DEVELOPED TECHNOLOGY RESOURCE, INC.
MEDICAL BIOPHYSICS INTERNATIONAL
Developed Technology Resource, Inc. is a 50% owner of this Minnesota
partnership.
FOODMASTER INTERNATIONAL LLP
Developed Technology Resource, Inc. is a 40% owner of this Delaware
joint venture.
SXD, INC.
Developed Technology Resource, Inc. owns 100% of the capital stock of
this Minnesota Corporation.
<TABLE> <S> <C>
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<ALLOWANCES> 10,508
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<PP&E> 144,615
<DEPRECIATION> 105,504
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<TOTAL-LIABILITY-AND-EQUITY> 2,632,211
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