SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
QUARTERLY REPORT UNDER SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended Commission File No. 0-23866
September 30, 1997
VARI-L COMPANY, INC.
(Exact name of Registrant as specified in its charter.)
Colorado 06-0679347
- ------------------------ -----------------------------------
(State of Incorporation) (I.R.S. Employer identification No.)
11101 E. 51st Avenue
Denver, Colorado 80239
-----------------------
(Address of principal executive offices)
(303) 371-1560
--------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15 (d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the Registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
Yes [X] No [ ]
The number of shares outstanding of each of the issuer's classes of
common stock, as of September 30, 1997:
Class of Securities Outstanding Securities
------------------- ----------------------
$0.01 par value 5,185,588 shares
Common shares
PART I-FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
VARI-L COMPANY, INC.
BALANCE SHEETS
SEPTEMBER 30, 1997 AND DECEMBER 31, 1996
<TABLE>
<CAPTION>
9/30/97 12/31/96
ASSETS (Unaudited) (Audited
- ------ ----------- ----------
Current Assets:
<S> <C> <C>
Cash and cash equivalents $ 4,816,743 $ 1,224,727
Receivables:
Trade, less $4,000 allowance for
doubtful accounts 4,189,265 2,744,180
Lease acquisition costs advanced 596,254 641,486
Inventories 8,114,414 7,740,976
Prepaid expenses and other 1,359,206 990,130
----------- ----------
Total Current Assets 19,075,882 13,341,499
----------- ----------
Property and Equipment:
Machinery and equipment 14,427,827 11,772,250
Furniture and fixtures 1,060,681 993,822
Leasehold improvements 3,618,570 2,993,081
----------- ----------
19,107,078 15,759,153
Less accumulated depreciation and
amortization (3,144,732) (2,654,405)
----------- ----------
Net Property and Equipment 15,962,346 13,104,748
----------- ----------
Other Assets:
Long-term inventories 332,000 332,000
Covenant not to compete 74,687 99,581
Patents, net of accumulated amortization
of $75,010 and $31,010 368,623 337,963
Other 733,046 899,572
----------- ----------
Total Other Assets 1,508,356 1,669,116
----------- ----------
TOTAL ASSETS $36,546,584 $28,115,363
- ------------ =========== ===========
</TABLE>
(Continued)
SEE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS
VARI-L COMPANY, INC.
BALANCE SHEETS, CONTINUED
SEPTEMBER 30, 1997 AND DECEMBER 31, 1996
<TABLE>
<CAPTION>
9/30/97 12/31/96
LIABILITIES AND STOCKHOLDERS' EQUITY (Unaudited) (Audited
- ------------------------------------ ----------- ----------
Current Liabilities:
<S> <C> <C>
Bank line of credit $ 1,878,409 $ 2,125,409
Current installments of:
Long-term debt 540,799 588,934
Obligations under capital leases 1,966 10,135
Financed insurance premiums 55,363 33,652
Trade accounts payable 1,265,691 1,499,992
Accrued expenses 217,225 584,938
Due to related party 24,552 77,774
Income taxes payable 876,656 0
----------- ----------
Total Current Liabilities 4,860,661 4,920,834
Long-term debt 4,154,416 4,155,121
Obligations under capital leases 0 6,131
Deferred income taxes 965,462 1,036,865
----------- ----------
Total Liabilities 9,980,539 10,118,951
----------- ----------
Stockholders' Equity:
Common stock, $.01 par value,
50,000,000 authorized;
5,185,588 and 3,806,138
shares outstanding, respectively 105,205 40,291
Paid-in capital 19,714,101 12,420,002
Retained earnings 6,765,439 5,554,819
Less:
Loans for purchase of stock (18,700) (18,700)
----------- ----------
Total Stockholders' Equity 26,566,045 17,996,412
----------- ----------
TOTAL LIABILITIES AND
STOCKHOLDERS' EQUITY $36,546,584 $28,115,363
- --------------------- =========== ===========
</TABLE>
SEE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS
VARI-L COMPANY, INC.
STATEMENTS OF INCOME
FOR THE THREE MONTH PERIODS ENDED
SEPTEMBER 30, 1997 AND SEPTEMBER 30, 1996
AND
FOR THE NINE MONTH PERIODS ENDED
SEPTEMBER 30, 1997 AND SEPTEMBER 30, 1996
<TABLE>
<CAPTION>
Three Three Nine Nine
Months Months Months Months
Ended Ended Ended Ended
9/30/97 9/30/96 9/30/97 9/30/96
(Unaudited) (Unaudited) (Unaudited) (Unaudited)
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Net sales $4,530,656 $2,601,196 $11,835,551 $7,782,662
Cost of products sold 2,150,829 1,316,680 5,874,066 3,904,934
---------- ---------- ----------- ----------
Gross profit 2,379,827 1,284,516 5,961,485 3,877,728
---------- ---------- ----------- ----------
Other costs and
expenses:
General and
administrative 486,398 307,057 1,262,097 891,356
Engineering 244,969 149,641 673,389 470,932
Selling 569,415 340,602 1,469,871 1,035,047
Interest expense 148,152 127,110 528,790 335,451
Interest income (52,586) (30,962) (111,952) (129,830)
Other 6,692 59,710 52,014 175,238
---------- ---------- ----------- ----------
1,403,040 953,158 3,874,209 2,778,194
---------- ---------- ----------- ----------
Income before taxes 976,787 331,358 2,087,276 1,099,534
Income taxes 410,251 139,170 876,656 461,804
---------- ---------- ----------- ----------
NET INCOME $ 566,536 $ 192,188 $ 1,210,620 $ 637,730
- ---------- ========== ========== =========== ==========
Primary earnings per
common share and
common share
equivalents $ 0.11 $ 0.05 $ 0.29 $ 0.16
========== ========== =========== ==========
Fully-diluted earnings
per common share and
common share
equivalents $ 0.11 $ 0.05 $ 0.26 $ 0.16
========== ========== =========== ==========
Primary weighted
average shares
outstanding 5,064,287 3,829,771 4,163,945 3,884,011
========== ========== =========== ==========
Fully-diluted weighted
average shares
outstanding 5,348,187 3,829,771 4,717,767 3,884,011
========== ========== =========== ==========
</TABLE>
SEE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS
VARI-L COMPANY, INC.
STATEMENTS OF CASH FLOWS
FOR THE NINE MONTH PERIODS ENDED
SEPTEMBER 30, 1997 AND SEPTEMBER 30, 1996
<TABLE>
<CAPTION>
Nine Nine
Months Months
Ended Ended
9/30/97 9/30/96
(Unaudited) (Unaudited)
------------ -----------
<S> <C> <C>
Net cash used in operating activities
(Note 7) $ (175,875) $(1,070,989)
----------- -----------
Cash flows from investing activities:
Net purchases of property and equipment (3,347,925) (5,348,563)
----------- -----------
Net cash used in investing
activities (3,347,925) (5,348,563)
Cash flows from financing activities:
Lease acquisition costs
reimbursed (advanced) 45,232 (656,485)
Net (repayments) increases in long-
term debt (48,840) 2,671,445
Net repayments of capital lease
obligations (14,300) (18,254)
Repayments of subordinated debentures 0 (112,500)
Net repayments under bank line of credit (247,000) (151,893)
Net proceeds under insurance financing 21,711 71,343
Net proceeds from debenture offering 6,862,500 0
Net proceeds from stock issuances,
net of income tax benefit and
debenture offering costs 496,513 403,563
----------- -----------
Net cash provided by
financing activities 7,115,816 2,207,219
----------- -----------
Net increase (decrease) in cash 3,592,016 (4,212,333)
Beginning cash 1,224,727 5,868,210
----------- -----------
ENDING CASH $ 4,816,743 $ 1,655,877
=========== ===========
Supplemental disclosure of cash flows
information:
Cash paid for interest $ 521,129 $ 293,877
=========== ===========
Cash paid for income taxes $ 0 $ 0
=========== ===========
</TABLE>
SEE ACCOMPANYING NOTES TO FINANCIAL STATEMENTS
VARI-L COMPANY, INC.
NOTES TO FINANCIAL STATEMENTS
Vari-L Company, Inc. (the Company), was founded in 1953 and is a
manufacturer of electronic components used in commercial and military
communications systems where electrical processing of radio frequency
signals is required.
NOTE 1 - FINANCIAL PRESENTATION
These financial statements should be read in conjunction with the audited
financial statements for the year ended December 31, 1996 and notes
thereto.
In the opinion of management, the accompanying interim, unaudited
financial statements contain all the adjustments necessary to present
fairly the financial position of the Company as of September 30, 1997, the
results of its operations for the three-month and nine-month periods ended
September 30, 1997 and September 30, 1996, and its cash flows for the nine-
month periods ended September 30, 1997 and September 30, 1996. All
adjustments made are of a normal recurring nature.
NOTE 2 - INVENTORIES
<TABLE>
<CAPTION>
Inventories consist of the following: 9/30/97 12/31/96
(Unaudited) (Audited
------------ -----------
<S> <C> <C>
Finished goods $1,384,848 $1,353,584
Work in process 3,696,219 3,189,200
Raw materials 2,830,293 2,995,138
Gold bullion 203,054 203,054
---------- ----------
$8,114,414 $7,740,976
========== ==========
Long-term inventories $ 332,000 $ 332,000
========== ==========
</TABLE>
NOTE 3 - INCOME TAXES
Income tax expense reflects effective tax rates of 42%.
NOTE 4 - SUBORDINATED DEBENTURES
Securities Purchase Agreement
- -----------------------------
On March 4, 1997, the Company entered into an agreement to sell up to 75
units of debentures and warrants. The units consisted of an aggregate of
$7,500,000 in 4-year, 7%, subordinated, convertible debentures and 750,000
non-redeemable warrants to purchase common stock at a price of $9.50 per
share, exercisable for a period of three years. Under the agreement, the
unpaid principal balance of the debentures plus accrued interest could be
converted into common stock at the election of the holder thereof at 84%
of the 10-day average closing bid price prior to receipt of written
request for conversion, or at $9.50, whichever is less.
As of September 30, 1997, the Company had sold 75 units for $7,500,000 and
received proceeds of $6,862,599, net of commissions and fees. As required
by the agreement, the common stock issuable upon conversion and/or
exercise of the debentures and warrants have been registered with the
Securities and Exchange Commission.
As of September 30, 1997, notices for conversion of the debentures
pursuant to the agreement had been received totaling $7,500,000, plus
accrued interest. As a result of these conversions, 1,264,778 shares of
$.01 par common stock were issued. All 750,000 warrants were outstanding
as of September 30, 1997.
VARI-L COMPANY, INC.
NOTES TO FINANCIAL STATEMENTS, CONTINUED
NOTE 5 - CREDIT FACILITIES
The Company has credit facilities with two banking institutions. The
first consists of a $3.5 million line of credit agreement. The second
consists of two agreements, a $4.7 million term loan agreement and a $2.5
million revolving equipment term loan ("the equipment loan") agreement.
The line of credit provides for borrowings of up to $3.5 million.
Interest is payable monthly, calculated at prime. The line of credit
matures April 30, 1999. At September 30, 1997, the outstanding balance
due under the line of credit was $1,878,409.
Interest accrues on the outstanding principal balance of the term loan at
8.01% and monthly principal and interest payments of $73,279 are required.
The term loan matures February 13, 2001. At September 30, 1997, the
balance due under the term loan was $4,659,140.
The equipment loan consists of a $2.5 million revolving line with a
conversion feature. Interest accrues on the balance due under the
revolving line at prime plus one-quarter percent and is payable monthly.
The revolving line component of the equipment loan matures August 13,
1998. Borrowings under the revolving line can be converted to term notes
which will bear interest at the 3-year treasury note rate plus 1.95%. Term
loans will require monthly principal and interest payments calculated on a
7-year amortization basis with a 42 month maturity. The equipment loan was
effective as of August 14, 1997 and, as of September 30, 1997, no advances
had been made.
NOTE 6 - EARNINGS PER SHARE
Primary and fully-diluted earnings per common share are computed by
dividing net income by the weighted average number of common shares and
dilutive common stock equivalents outstanding for a period. Vested stock
options are considered to be common stock equivalents.
VARI-L COMPANY, INC.
NOTES TO FINANCIAL STATEMENTS, CONTINUED
NOTE 7 - RECONCILIATION OF NET INCOME TO NET CASH USED IN OPERATING
ACTIVITIES
The reconciliation of net income to net cash used in operating activities
for the nine-month periods ended September 30, 1997 and September 30, 1996
is as follows:
<TABLE>
<CAPTION>
Nine months Nine months
Ended Ended
9/30/97 9/30/96
(Unaudited) (Unaudited)
------------ -----------
<S> <C> <C>
Net Income $ 1,210,620 $ 637,730
----------- -----------
Adjustments to reconcile net income
to net cash used in operating
activities:
Depreciation and amortization 490,327 307,018
Amortization of covenant not
to compete 24,894 76,380
Changes in assets and liabilities:
(Increase) decrease in accounts
receivable (1,445,085) 158,735
(Increase) in inventories (373,438) (2,522,015)
(Increase) in prepaid expenses
and other (369,076) (468,500)
Decrease (increase) in patents
and other assets 135,866 (253,120)
(Decrease) increase in accounts
payable (234,301) 714,546
(Decrease) in accrued expenses (367,713) (183,567)
(Decrease) in amounts due to
related parties (53,222) 0
Increase in income taxes payable 805,253 461,804
----------- -----------
Total adjustments (1,386,495) (1,708,719)
----------- -----------
Net Cash Used in Operating Activities $ (175,875) $(1,070,989)
=========== ===========
</TABLE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
Overview
- --------
The Company achieved record financial results in the three-month and nine-
month periods ended September 30, 1997. Net income for the nine-month
period has surpassed 1996 annual net income. The Company received $2.9
million in firm customer orders during the third quarter, up 79% from the
same quarter a year ago, while nine-month orders rose 48% to $9.2 million.
Commercial firm customer orders more than doubled to $2 million in the
quarter and $6.7 million for the year. Military/aerospace orders
rebounded in the quarter, advancing 30% to $934,000, but still trail 1996
year-to-date levels by 16%. International order growth outpaced domestic
order growth 149% to 56% in the third quarter and 87% to 34% in the nine-
month period. The international and domestic order growth trends change
from period to period. For example, the growth in domestic orders
outpaced international orders during the second quarter of 1997. These
trend fluctuations reflect our customers' varying ordering cycles and the
potential for relatively large orders from any given customer. They also
demonstrate that the Company is becoming a global organization with strong
customer relationships resulting in orders from domestic, European and
Scandinavian markets. In addition, excellent potential for growth exists
in the promising, yet largely untapped, Far East markets.
While exploring new markets, the Company has continued to advance its
technology. As announced during the third quarter, the Company has
developed a new 5.8 gigahertz VCO to be used in a variety of applications
for the third ISM license-free frequency-band market, including
intelligent highway vehicle systems and other advanced technologies. This
VCO has state-of-the art phase noise performance and the lowest energy
consumption of any product in its class. This announcement followed two
patent grants during the second quarter and underscores the Company's
commitment to remaining on the leading edge of new product developments.
The Company remains optimistic about the prospects for its manufacturing
joint venture in China. While direct investments in capital and other
resources in China have been limited pending receipt of Chinese patents on
the Company's intellectual property, the Company still hopes to begin
production in during the first quarter of 1998. Because production cannot
begin without the Chinese patents, the Company has taken steps to
minimize the impact that delays would have on shipments of high-volume
commercial products. In particular, the Company is refining its domestic
manufacturing systems and procedures in order to reduce labor costs and
offset the economic advantages of overseas manufacturing.
Construction on the Company's newest U.S. facility, which will house
Sales, Administration, Personnel and Quality Assurance, is nearly
complete. Occupancy of this space is planned for November 1997 at which
time the space currently occupied by those departments will be remodeled
to accommodate all of the manufacturing and engineering functions related
to the Company's Discrete Signal Source Components and wide-band VCO
product lines.
Results of Operations
Three Months Ended
September 30, 1997 and September 30, 1996
and the Nine Months Ended
September 30, 1997 and September 30, 1996
Total Revenues
Sales revenues increased approximately $1,929,000 (74%) in the three
months ended September 30, 1997 as compared with the three months ended
September 30, 1996, from $2,601,196 to $4,530,656. Sales revenues also
increased approximately $4,053,000 (52%) in the nine months ended
September 30, 1997 as compared with the nine months ended September 30
1996, from $7,782,662 to $11,835,551. These increases in sales revenue
reflect the continuing success of the Company in expanding its
international and commercial sales even while increasing domestic sales
and sales opportunities.
The Company currently has five major product lines:
1. Discrete signal processing components for industrial, military and
aerospace.
2. Hybrid signal source components, primarily wide-band VCOs, for
industrial, military and aerospace.
3. Assemblies that combine Discrete signal processing and Hybrid signal
source components.
4. Commercial signal source components including PLLs and narrow-band
VCOs.
5. Optoelectronic components and subassemblies used in magnetic and
electro-optic products for CATV applications.
In the first nine months of 1997, the composition of sales revenues was
12% Discrete, 30% wide-band VCOs, 0% "Combination" sales of wide-band VCO
and Discrete products, 45% narrow-band VCOs, 6% PLLs and 7% Optoelectronic
products, the Company's newest product line. In the first nine months of
1996, the composition of sales revenues was 17% Discrete, 35% wide-band
VCOs, 7% "Combination" sales of wide-band VCO and Discrete products, 36%
narrow-band VCOs, 5% PLLs and 0% Optoelectronic products.
Cost of Goods Sold
Cost of goods sold, as a percent of sales revenues, was 47% in the three
months ended September 30, 1997 and 51% in the three months ended
September 30, 1996. Cost of goods sold, as a percent of sales revenues,
was 50% in the nine months ended September 30, 1997 and 50% in the nine
months ended September 30, 1996. The decreases in the 3-month period ended
September 30, 1997 reflect improvements in production processing that have
increased personnel efficiencies and reduced labor and material costs.
Selling and Engineering Expense
Selling expenses increased approximately $229,000, or 67%, for the three
months ended September 30, 1997 as compared to the three months ended
September 30, 1996. Selling expenses increased approximately $435,000, or
42%, for the nine months ended September 30, 1997 as compared to the nine
months ended September 30, 1996. Selling expenses, such as sales
commissions, are directly related to the amount of product shipped and
sales revenue generated. Revenues increased 74% and 52% in the three- and
nine-month periods ending September 30, 1997, respectively.
Engineering expenses increased approximately $95,000, or 64%, for the
three months ended September 30, 1997 as compared to the three months
ended September 30, 1996. Engineering expenses increased approximately
$202,000, or 43%, for the nine months ended September 30, 1997 as compared
to the nine months ended September 30, 1996. These increases reflect
additional engineering staff, expenses and equipment costs to expand and
support development of the Company's product lines, including high-volume
commercial products, military products, space products and optoelectronic
products.
General and Administrative and Other Expenses
General and administrative expenses increased approximately $179,000 (58%)
in the three months ended September 30, 1997 as compared with the three
months ended September 30, 1996. General and administrative expenses
increased approximately $370,000 (42%) in the nine months ended September
30, 1997 as compared with the nine months ended September 30, 1996.
Increases to G & A primarily reflect additional staffing in the personnel
and accounting departments, in line with the growth of the Company, as
well as increasing shareholder and other expenses related to being a
public company.
Other expenses decreased approximately $53,000 (89%) in the three months
ended September 30, 1997 as compared with the three months ended September
30, 1996. Other expenses decreased approximately $123,000 (70%) in the
nine months ended September 30, 1997 as compared with the nine months
ended September 30, 1996, due to full amortization in 1996 of costs
related to a 1991 covenant not to compete. The decrease was partially
offset by the amortization of a 1996 covenant not to compete.
Interest Income and Expense
The Company manages its credit facility and mutual fund in tandem.
Interest income is earned on the Company's short-term investments in a
U.S. government securities mutual fund purchased with proceeds from the
March 1997 convertible debenture and warrant offering. Interest income
increased approximately $22,000, to approximately $53,000 in the three
months ended September 30, 1997 compared to the three months ended
September 30, 1996. Interest income decreased approximately $18,000 (14%)
for the nine months ended September 30, 1997 as compared to the nine
months ended September 30, 1996, from $129,830 to $111,952. The
increase/decrease reflects varying levels of these mutual funds
investments during the periods reported upon.
Interest expense increased approximately $21,000 (17%) for the three
months ended September 30, 1997 as compared with the three months ended
September 30, 1996. Interest expense increased approximately $193,000
(58%) for the nine months ended September 30, 1997 as compared with the
nine months ended September 30, 1996. Increases in interest expense for
the 1997 periods primarily reflect interest paid on the $5,000,000
convertible debentures prior to their conversion to common stock.
Depreciation and Amortization
Depreciation and amortization increased approximately $183,000 (60%) for
the nine months ended September 30, 1997 as compared with the nine months
ended September 30, 1996, reflecting depreciation on acquisitions since
September 1995 of property, equipment, and leasehold improvements,
including but not limited to the retooling and remodeling of the
commercial products manufacturing facility, test and lab setups for
engineering staffing additions, the addition of high-speed testing
equipment, new phone systems, equipment and software for the management
information systems upgrade, and the acquisition of equipment to perform
machining, packaging and testing that had formerly been purchased outside.
Financial Condition
- -------------------
Liquidity
At September 30, 1997, the Company's working capital was $14.2 million
compared to $8.4 million at December 31, 1996. The Company's current
ratio was 3.9 to 1 as of September 30, 1997 and 2.7 to 1 at December 31,
1996.
Capital Resources
On August 13, 1997, the Company restructured its credit facilities,
renewing its line of credit agreement, which is secured by accounts
receivable, inventory and general intangibles, with its present banking
institution and taking its existing term loan, plus increasing its credit
facility, which is secured by all of the Company's fixed assets, to a
second banking institution.
The line of credit agreement was renewed and provides for borrowings of up
to $3.5 million and matures April 30, 1999. Interest is payable monthly,
calculated at prime. At September 30, 1997, the outstanding balance of the
line of credit was $1,878,409.
The Company now has two separate loans under its term loan agreement. The
first loan is a conventional term loan. Interest accrues on the
outstanding principal balance of the term loan at 8.01 percent and monthly
principal and interest payments of $73,279 are required. Unpaid principal
and accrued interest are due February 13, 2001. The balance on the term
loan at September 30, 1997 was $4,659,140. Proceeds of this loan were
used to pay off the term loan at the first banking institution.
The second loan is a revolving equipment loan which provides for
borrowings up to $2,500,000. Interest accrues on the outstanding
principal balance of the revolving line at prime plus .25% when advances
are made under the revolver. These borrowings can be converted to term
notes at a rate which adjusts to the 3-year treasury note rate plus 1.95%.
When converted, the new term debt will require monthly principal and
interest payments calculated on a seven-year amortization basis with a 42
month maturity. The revolving loan matures on August 13, 1998. As of
September 30, 1997, no advances had been made under this loan.
The Company finances certain of its annual insurance premiums through a
financing company. The amounts due under these loans totaled $55,363 as
of September 30, 1997 and are paid in monthly installments of $8,051 with
an interest rate of 7.24%.
On March 4, 1997, the Company entered into an agreement to sell up to an
aggregate of $7.5 million in four year, 7% convertible debentures together
with 750,000 non-redeemable common stock purchase warrants exercisable at
$9.50 per share for a period of three years. The unpaid principal balance
and accrued interest of the debentures could be converted into shares of
the Company's common stock at the election of the holder thereof at $9.50
per share or 84% of the 10-day average closing bid price prior to the date
of receipt by the Company of the holder's written request, whichever was
less. As of September 30, 1997 the Company had sold $7,500,000 of
debentures and 750,000 of related warrants, and had converted the
$7,500,000 in debentures plus accrued interest into 1,264,778 shares of
$.01 par value common stock. All 750,000 warrants remained outstanding as
of September 30, 1997.
The Company believes that it has sufficient financial resources available
to meet its short-term working capital needs through cash flows generated
by operating activities and through the management of its sources of
financing. The Company also believes that, as the result of its recent
sales of the convertible debentures, the Company has adequate capital
resources to continue its growth plans.
Backlog
Total backlog of unfilled firm customer orders ("backlog") at September
30, 1997 was $11.8 million compared with $13.7 million at September 30,
1996. Backlog at December 31, 1996 was $14.4 million.
Forward looking statements
Some of the statements contained in this document are forward-looking
statements. The accuracy of these statements cannot be guaranteed as they
are subject to a variety of risks including, but not limited to the
success of the products into which the Company's products are integrated,
governmental action relating to wireless communications licensing and
regulation, internal projections as to the demand for certain types of
technological innovation, competitive products and pricing, the success of
new product development efforts, the timely release for production and the
delivery of products under existing contracts, future economic conditions
generally, as well as other factors.
VARI-L COMPANY, INC.
PART II--OTHER INFORMATION
Item 1 Legal Proceedings
-----------------
None
Item 2 Changes in Securities
---------------------
None
Item 3 Defaults Upon Senior Securities
-------------------------------
None
Item 4 Submission of Matters to a Vote of Security Holders
---------------------------------------------------
None
Item 5 Other Information
-----------------
None
Item 6 Exhibits and Reports on Form 8-K
--------------------------------
(a) Exhibits
Exhibit 10 Lease agreement dated March 12, 1997 between
the Company and Five K Investments for the facility located
at 11900 E. 49th Avenue, Denver, Colorado.
Exhibit 27 Financial Data Schedule
(b) Reports on Form 8-K
None
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Company has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
VARI-L COMPANY, INC.
Date: November 7, 1997 By: /s/ Jon L. Clark
-----------------------------
Jon L. Clark, V.P. Finance
and Principal Accounting
Officer
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM VARI-L'S
UNAUDITED FINANCIAL STATEMENTS PREPARED AS OF SEPTEMBER 30, 1997 AND FOR THE
NINE-MONTH PERIOD THEN ENDED, INCLUDED WITH ITS 10-QSB FILING WITH THE
SECURITIES AND EXCHANGE COMMISSION FOR THE QUARTER ENDED SEPTEMBER 30, 1997, AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
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<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 4,817
<SECURITIES> 0
<RECEIVABLES> 4,789
<ALLOWANCES> 4
<INVENTORY> 8,114
<CURRENT-ASSETS> 19,076
<PP&E> 19,107
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<TOTAL-ASSETS> 36,457
<CURRENT-LIABILITIES> 4,861
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0
0
<COMMON> 105
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<TOTAL-LIABILITY-AND-EQUITY> 36,547
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<TOTAL-REVENUES> 11,948
<CGS> 5,874
<TOTAL-COSTS> 5,874
<OTHER-EXPENSES> 3,457
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 529
<INCOME-PRETAX> 2,087
<INCOME-TAX> 877
<INCOME-CONTINUING> 1,210
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<NET-INCOME> 1,210
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</TABLE>
LEASE AGREEMENT
THIS LEASE AGREEMENT executed this 12th day of March, 1997, by and between
FIVE K INVESTMENTS, A COLORADO GENERAL PARTNERSHIP (hereinafter called
"Lessor"), and VARI-L COMPANY, INC., A COLORADO CORPORATION (hereinafter
called ("Lessee"),
W I T N E S S E T H:
ARTICLE I.
GRANT OF DEMISED PREMISES AND
DESCRIPTION OF CONDITION THEREOF
Section 1.01 Lessor, for and in consideration of the rents and
additional rents hereinafter reserved and to be paid by Lessee and in
further consideration of the satisfactory performance of the covenants and
agreements hereinafter set forth to be kept and performed by Lessee, has
granted, demised and leased and by these presents does GRANT, DEMISE AND
LEASE unto the Lessee those certain premises situated in the City and
County of Denver, State of Colorado, and more particularly described on
Exhibit "A," attached hereto and incorporated herein by reference;
TOGETHER WITH:
A. All and singular appurtenances, rights, privileges and
easements in any wise now or hereafter appertaining thereto;
B. Any and all buildings, structures, improvements, fixtures
and equipment presently constructed, erected and standing or which are
hereafter constructed or erected on, above, or below the above-described
property;
C. All landscaping improvements now or hereafter appertaining
thereto;
D. All right, title and interest of Lessor in and to the land
lying in the streets and roads in front of and adjoining the above-
described property.
Said property being hereinafter sometimes referred to as the
"Demised Premises."
Section 1.02 The foregoing demise is made subject to the following:
A. All restrictions, regulations and statutes, and amendments
and additions thereto, of any and all federal, state, county, city and
township authorities having jurisdiction over the Demised Premises or any
portion thereof;
B. All covenants, restrictions, easements, reservations and
agreements now recorded affecting the Demised Premises or any portion
thereof;
C. Building restrictions and regulations, zoning ordinances
and regulations and any amendments thereto now in force and effect
affecting the Demised Premises or any portion thereof; and
D. All licenses, easements and rights, if any, acquired by any
public service or public utility corporation or agency to maintain and
operate lines, wires, cables, poles, pipes, valves and distribution boxes,
in, over and upon the Demised Premises.
ARTICLE II.
TERM
Section 2.01 The term of this Lease shall be for a period of sixteen
(16) years ("Basic Term"), commencing on the first to occur of: (a) the
date upon which Lessee takes occupancy of the Demised Premises for the
purpose of conducting its business, or (b) ten (10) days following the
date on which the Demised Premises are Ready for Occupancy, but in no
event prior to September 1, 1997. "Ready for Occupancy," as used herein,
shall mean the date that Lessor shall have completed Landlord's Work
described in the Work Agreement, or, if Landlord's Work remains to be
completed, that such work is dependent upon the progress and completion of
Lessee's work, if any. The issuance of a Certificate of Occupancy by
appropriate building departments by Lessor's architect shall control
conclusively the date on which the Demised Premises are Ready for
Occupancy. Within ten (10) days after the term has commenced, Lessee
shall execute, if requested by Lessor in writing, and deliver to Lessor a
written certificate in recordable form setting forth the commencement and
expiration dates of the term and acknowledging that Lessor has completed
all work required of it in the Work Agreement, or if not so completed,
listing all exceptions then known by Lessee. Failure of Lessee to execute
and deliver such certificate shall constitute an acceptance of the Demised
Premises and an acknowledgment by Lessee that Lessor has fully satisfied
its obligations set forth in the Work Agreement.
Section 2.02 If, prior to commencement of the term of the Lease,
Lessee uses or occupies the Demised Premises or any part thereof with
Lessor's prior written consent for the purpose of completing alterations
to the Demised Premises, Lessee agrees to observe and perform all the
provisions of this Lease except those which require payment of Rent;
provided, however, if Lessee commences business in any part of the Demised
Premises prior to commencement of the term, Lessee shall pay Lessor an
Occupation Rent for each day prior to commencement of the term, calculated
on the basis of the per diem rental and all other sums which would be due
to Lessor from Lessee if the term had then commenced.
Section 2.03 Lessee shall have the option to renew and extend the
term of this Lease for two (2) additional periods of five (5) years each,
the first period ("First Renewal Term") commencing on the expiration of
the Basic Term, and the second period ("Second Renewal Term") commencing
on the expiration of the First Renewal Term. The option for the First
Renewal Term may be exercised only by delivery of written notice thereof
to Lessor not less than twelve (12) months prior to the expiration of the
Basic Term, and the option for the Second Renewal Term may be exercised
only by providing such written notice within an identical period prior to
the expiration of the First Renewal Term; provided, however, if at any
time subsequent to delivery of such written notice with respect to either
the First or Second Renewal Term, but prior to commencement of the renewal
term to which such notice applies, Lessee shall be in default under this
Lease, Lessor may, in its sole discretion, revoke and cancel Lessee's
right to renew and extend the term of this Lease. Exercise of the option
to renew for the first five (5) year period shall be a condition precedent
to exercise of the option of the second five (5) year period. Throughout
the renewal terms, all terms and conditions of this Lease shall remain in
full force and effect, except that (a) there shall be no additional right
to extend the term beyond the Second Renewal Term, and (b) Lessor shall
provide no tenant finish work or credits in lieu thereof and Lessee shall
accept the Demised Premises in their AS IS condition at the expiration of
the Basic Term or First Renewal Term, as appropriate.
ARTICLE III.
CONSTRUCTION OF BUILDING
Section 3.01 The obligation of Lessor to perform the work and supply
materials and labor to prepare the Demised Premises for occupancy are set
forth in detail in the Work Agreement attached hereto as Exhibit *----.
Lessor shall expend the funds and do all acts required of it in the Work
Agreement ("Landlord's Work").
Section 3.02 At such time as Lessor has commenced construction of
Landlord's Work, Lessor shall provide Lessee with written notice of
commencement. If the written notice of commencement is not given by April
15, 1997 Lessee may at its option terminate this Lease by giving written
notice of termination to Lessor at any time prior to the date on which
Lessor commences construction. If the Demised Premises are not ready for
occupancy by September 1, 1997, subject to extensions on account of delays
due to weather, strike, or other matters outside the control of Lessor or
acts of God, delays due to obtaining necessary permanent and construction
financing (not to exceed sixty (60) days from September 1, 1997), but not
including any delay which could be avoided by the payment of money and
delays attributable to Lessee, Lessee may terminate this Lease by
providing written notice of termination to Lessor within ten (10) days
thereafter. Lessee's option to terminate shall constitute its sole remedy
for Lessor's failure to commence or substantially complete construction
within the times specified.
ARTICLE IV.
RENT
Section 4.01 Lessee agrees to pay to Lessor, promptly when due,
without notice or demand and without deduction or set off of any amount
for any reason whatsoever, as Minimum Rent for the Demised Premises the
sum of Four Hundred Ninety-Four Thousand Four Hundred Forty-Two and No/100
Dollars ($494,442.00) per annum in equal installments of Forty-One
Thousand Two Hundred Three and 50/100ths Dollars ($41,203.50) for each and
every month during the term. Said Minimum Rent shall be payable in
advance on the first day of each calendar month during the term.
Section 4.02 In the event the term of this Lease commences on a day
other than the first day of a calendar month, Lessee shall pay to Lessor
on the first day of the term a sum determined by multiplying one-thirtieth
(1/30th) of the monthly installment of Minimum Rent by the number of days
in the first calendar month which are included in the term. The
installment of Minimum Rent due for the last partial month of the term
shall be similarly prorated.
Section 4.03 Commencing on the sixth (6th) annual anniversary of the
commencement date of this Lease and on every annual anniversary thereafter
during the Basic Term and each Renewal Term ("Review Date"), the amount of
the annual Minimum Rent shall be revised and recalculated to reflect the
greater of (a) the annual Minimum Rent payable for the twelve (12) month
period immediately preceding the subject Review Date or (b) the product
obtained by multiplying the Annual Minimum Rent payable for the first
twelve (12) month period of the term by a fraction, the numerator of which
is the CPI-W for the month preceding the subject Review Date, and the
denominator of which is the CPI-W for the month in which the commencement
date occurred. For purposes of the section, the "CPI-W" shall mean the
Consumer Price Index for Urban Wage Earners and Clerical Workers, All
Items Index (1982- 84=100), U.S. City Average, as established by the
United States Department of Labor, Bureau of Labor Statistics. If the CPI-
W is not published for the specified months, but is published for the next
preceding month, the CPI-W for the next preceding month shall be
substituted. If at any time the CPI-W shall cease publication, or if in
Lessor's reasonable opinion, it shall no longer reflect the increase in
consumer prices, the Lessor and Lessee shall agree upon a substitute
official index published by the Bureau of Labor Statistics, or successor
or similar governmental agency, as may then be in existence, and shall be
most nearly equivalent thereto. If the parties are unable to agree upon a
successor index, they shall refer the choice of a successor index to
arbitration in accordance with the rules of the American Arbitration
Association.
Section 4.04 All rental amounts payable hereunder, as well as all
other amounts payable by Lessee to Lessor under the terms of this Lease,
shall be paid at the office of Lessor set forth herein, or at such other
place as Lessor may from time to time designate, in lawful money of the
United States.
Section 4.05 Lessee hereby acknowledges that late payment by Lessee
to Lessor of rent and other sums due hereunder will cause Lessor to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited
to, processing and accounting charges and late charges which may be
imposed on Lessor by the terms of any mortgage or trust deed covering the
Demised Premises. Accordingly, if any Rent or any other sum due from
Lessee shall not be received by Lessor or Lessor's designee within ten
(10) days after said amount is due, Lessee shall pay to Lessor a late
charge equal to five percent (5%) of such overdue amount. The parties
hereby agree that such late charge represents a fair and reasonable
estimate of the cost Lessor will incur by reason of late payment by
Lessee. Acceptance of such late charge by Lessor shall in no event
constitute a waiver of Lessee's default with respect to such overdue
amount nor prevent Lessor from exercising any of the other rights and
remedies granted hereunder.
ARTICLE V.
SECURITY DEPOSIT
Section 5.01 Concurrently with Lessee's execution of this Lease,
Lessee shall deposit with Lessor the sum of Eighty-One Thousand Two
Hundred Three and No/100ths Dollars ($81,203.00), to be held by Lessor as
security for the faithful performance of every provision of this Lease to
be performed by Lessee. If Lessee defaults with respect to any provision
of this Lease, including, but not limited to, the provisions relating to
the payment of rent, Lessor may (but shall not be required to) use, apply
or retain all or any part of this Security Deposit for the payment of rent
or any other sum in default, or for the payment of any amount which Lessor
may spend or become obligated to spend by reason of Lessee's default or to
compensate Lessor of any other loss or damage which Lessor may suffer by
reason of Lessee's default. If any portion of said deposit is so used or
applied, Lessee shall, within ten (10) days after written demand therefor,
deposit cash with Lessor in an amount sufficient to restore the Security
Deposit to its original amount, and Lessee's failure to do so shall be
deemed a material breach of this Lease. Lessor shall not be required to
keep the Security Deposit separate from its general funds and Lessee shall
not be entitled to interest on said deposit. If Lessee shall fully and
faithfully perform every provision of this Lease to be performed by it,
the Security Deposit or any balance thereof shall be returned to Lessee
(or Lessee's assignee) at the expiration of the term and after Lessee has
vacated the Demised Premises; however, in no event shall Lessor be under
any obligation to return said deposit earlier than sixty (60) days after
the expiration of the term.
ARTICLE VI.
USE OF DEMISED PREMISES
Section 6.01 Except as may otherwise be permitted by the prior
written consent of Lessor, Lessee shall use the Demised Premises and any
buildings, structures, improvements, fixtures, or equipment now or
hereafter constructed, erected or installed below or above the Demised
Premises only as a light manufacturing facility and/or a warehouse and
office which shall include the sale of all goods, wares and merchandise
and the performance of such services as are incidental to such business
and for no other purpose except related incidental uses and shall not
under any circumstances use or occupy, nor permit or suffer the Demised
Premises or buildings, structures, improvements, fixtures or equipment now
or hereafter constructed, erected or installed on, below or above the
Demised Premises or any part thereof to be used or occupied for any
unlawful or illegal business, use or purpose, nor for any business, use or
purpose which may be considered extra hazardous unless insurance covering
any such hazard, satisfactory to Lessor and for the benefit of Lessor, is
first provided and upon written consent of Lessor, nor in any such manner
to constitute a nuisance of any kind, nor for any purpose or in any way in
violation of any certificate of occupancy or the equivalent thereof, if
any, or of any present or future governmental laws, ordinances,
requirements, orders, directions, rules or regulations. No storage of any
material outside of the buildings on the Demised Premises shall be allowed
unless first approved by Lessor in writing, and then only in such areas as
are designated by Lessor. Lessee shall indemnify and save harmless Lessor
against and from all costs, expenses, liabilities, losses, damages,
injunctions, suits, fines, penalties, claims and demands, including
reasonable counsel fees, arising out of, by reason of, or on account of,
any violation of or default in the covenants of this article. No auction,
fire or bankruptcy sales may be conducted on the Demised Premises without
the prior written approval and consent of Lessor.
ARTICLE VII.
TAXES AND OTHER CHARGES
Section 7.01 Subject to Section 7.03, Lessee agrees that it will pay
directly to the taxing authority all real estate taxes, personal property
taxes, privilege taxes, excise taxes, business and occupation taxes, gross
sales taxes, occupational license taxes, assessments (including, but not
limited to, assessments for public improvements or benefits) and all other
governmental impositions and charges of every kind and nature whatsoever,
which shall be imposed with respect to the Demised Premises, any personal
property or fixtures located thereon and the ownership, leasing and
operation thereof, which are attributable to the period included in the
Demised Term. On or before the first day of each February after
commencement of this Lease, Lessor shall advise Lessee of the amount of
such real property taxes and Lessee shall make such tax payment at least
fifteen (15) days prior to the date such taxes become delinquent and
Lessee shall provide Lessor with evidence of payment prior to the date of
delinquency.
Section 7.02 Nothing in this Lease contained shall require the
Lessee to pay any franchise, estate, inheritance, succession or transfer
tax of the Lessor, or any income, excess profits or revenue tax or any
other tax, assessment, charge or levy upon the rent payable by the Lessee
under this Lease; provided, however, that if at any time during the
Demised Term the methods of taxation prevailing at the commencement of the
term hereof shall be altered so that in lieu of any tax described in this
article there shall be levied, assessed and imposed, a tax, assessment,
levy, imposition or charge, wholly or partially as a capital levy or
otherwise, on the rents received herefrom, or a license fee measured by
the rent payable by Lessee under this Lease, then all such taxes,
assessments, levies, impositions or charges, or the part thereof so
measured or based, shall be deemed to be included within the term "tax"
for the purposes hereof, to the extent that such tax would be payable if
the Demised Premises were the only property of Lessor subject to such tax,
and Lessee shall pay and discharge the same as herein provided in respect
to the payment of taxes.
Section 7.03 At Lessor's option and upon notice to Lessee, Lessee
shall pay the taxes described above directly to Lessor's mortgagee in
monthly installments determined by Lessor's mortgagee to be sufficient to
pay the full amount of taxes when due.
ARTICLE VIII.
INSURANCE
Section 8.01 Lessee shall at all times during the term hereof, and
at its own cost and expense, procure and continue in force the following
insurance coverage:
A. Fire and extended coverage insurance covering the Demised
Premises and all of Lessee's property against loss or damage by fire and
against loss or damage by other risks now or hereafter embraced by
"Extended Coverage," vandalism, malicious mischief, special extended
perils (all risk) and sprinkler leakage, together with an endorsement
reflecting that loss rental insurance is in force, in an amount equal to
full replacement value, to be readjusted annually. Lessor shall be named
as an insured in all such policies.
B. Comprehensive public liability insurance, including
property damage and Workmen's Compensation insurance, insuring Lessor and
Lessee against liability for accident, injury or casualty to persons or
property occurring in, about, or adjacent to the Demised Premises or
arising out of the ownership, maintenance, use or occupancy thereof, which
policy shall be written on an "Occurrence Basis" with limits of not less
than Two Million Dollars ($2,000,000.00) liability coverage and One
Million Dollars ($1,000,000.00) property damage coverages or such greater
amount as Lessor's mortgagee may require.
C. If the Lessee uses in the Demised Premises any kind of
steam or other high pressure boiler or other apparatus which presents any
possibility of damage to the Demised Premises or the improvements of which
the Demised Premises are a part or the life or limb of persons within such
Demises Premises, Lessee agrees to carry appropriate boiler insurance in
an amount satisfactory to Lessor to indemnify against any loss resulting
from any explosion or other damage or liability.
D. Any other form or forms of insurance as Lessor or its
mortgagee may reasonably require from time to time in amounts and insuring
against such risks as a prudent landlord would require.
Section 8.02 All insurance required by virtue of this article shall
be written with an insurance company licensed to do business within the
State of Colorado and with an insurance company approved by the Lessor
(which approval shall not be unreasonably withheld). Any deductible
amount shall be subject to Lessor's prior written consent. The Lessee
shall provide the Lessor with the original insurance policies or a
Certificate of Insurance (with proof of payment of premium therefor),
which shall provide that the insurance company shall give notice in
writing to the Lessor thirty (30) days prior to cancellation, expiration
or modification of such insurance for any reason whatsoever. Any policies
(except liability insurance) shall provide by endorsement that any loss
shall be payable to Lessor and Lessee, as their respective interests may
appear, and shall name Lessor' mortgagee under a standard mortgagee
endorsement. Liability policies shall name Lessor as an additional
insured.
Section 8.03 The Lessor and Lessee mutually release each other and
waive all claims from any and all liability or responsibility (to the
other or anyone claiming through or under them by way of subrogation or
otherwise) for any loss or damage to property caused by fire or any of the
extended coverage or supplementary contract casualties, even if such fire
or other casualty shall have been caused by the fault or negligence of the
other party or anyone for whom such party may be responsible, to the
extent such loss or damage is covered by insurance policies required to be
carried hereunder. Parties agree that all applicable insurance policies
shall include such a clause or endorsement, waiving rights of subrogation.
Section 8.04 At Lessor's option and upon notice to Lessee, Lessee
shall pay the insurance premium described above directly to Lessor's
mortgagee in monthly installments determined by Lessor's mortgagee to be
sufficient to pay the full amount of said premium when due.
ARTICLE IX.
APPLICABLE LAWS AND REGULATIONS
Section 9.01 Throughout the Demised Term, Lessee shall, at the cost
and expense of Lessee, observe and comply with all laws, requirements,
rules, orders, ordinances and regulations of the city, county, state and
federal governments, and of each and every department, bureau and duly
authorized official thereof, and of the local Board of Fire Underwriters
having jurisdiction, and of any successor or future governmental
authority, department, bureau and duly authorized official thereof,
corporation or other body or organization possessing similar authority and
exercising similar functions, which laws, requirements, rules, orders,
ordinances and regulations are now operative, or which at any time during
the Demised Term may be operative, and in force and effect and applicable
to the Demised Premises. Lessee shall, at its expense, make all capital
improvements and alterations necessary to conform the Demised Premises to
any changes in applicable laws which become effective subsequent to the
Commencement Date of this Lease.
ARTICLE X.
REPAIRS AND MAINTENANCE
Section 10.01 Throughout the Demised Term, Lessee shall, without any
cost or expense to Lessor, take good care of and keep in good order and
repair, or cause the same to be done, inside and out the Demised Premises,
including all buildings and structures which are now or shall hereafter be
constructed on, below, above or appurtenant to the Demised Premises, and
all alterations, additions and improvements therein or thereto, and the
roofs and foundations thereof, and all fixtures and appurtenances therein
and thereto, and all equipment thereof, including but not limited to, all
boilers, elevators, machinery, pipes, plumbing, wiring, gas, steam and
electrical fittings, sidewalks, vaults, water, sewer and gas connections,
heating equipment, air-conditioning equipment and machinery, and all other
fixtures, machinery and equipment installed and owned by Lessee now or
hereafter belonging to or connected with the Demised Premises or used in
their operation; make all repairs inside and outside, ordinary and
extraordinary, structural or otherwise, necessary to preserve the Demised
Premises and the said buildings and improvements in good order and
condition, which repairs shall be in quality and class at least equal to
the original work; promptly pay or cause the payment of the expense of
such repairs; suffer no waste or injury; keep the sidewalk, driveways,
entrances and exits, curb and parking areas in good repair and reasonably
free from snow, ice, dirt and rubbish; maintain and replace all
landscaping, parking and other outside areas comprising the Demised
Premises; give prompt notice to Lessor of any fire that may occur; make
repairs and improvements to such buildings and structures and to restore
the same after damage or destruction by fire or other casualty and risk or
by partial condemnation; comply with all orders and requirements of any
governmental authority applicable to such buildings and structures and
outside areas and to any occupation thereof; and repair at or before the
end of the Demised Term, all injury done by the installation or removal of
furniture, trade fixtures and property. Lessee further agrees to return
the Demised Premises to the Lessor, at the end of the Demised Term, in
substantially as good condition as when received, except for usual and
ordinary wear and tear. However, in no event will Lessee be responsible
for the replacement of the roof after the Demised Term.
Section 10.02 Lessee shall be responsible for the total operating
costs incurred in operating the improvements on the Demised Premises and
the costs of all maintenance and repairs, including, but not limited to,
the costs and expenses incurred for maintenance, repairs, janitorial
services, utilities, removal of snow, trash, rubbish, garbage and other
refuse, supplies, depreciation on the machinery and equipment used in such
maintenance and repairs, the cost of personnel to implement such services,
maintenance and repairs, to direct parking and to police the Demised
Premises.
Section 10.03 When used in this Lease, the term "repairs" as applied
to buildings, improvements, structures or equipment shall include
replacements, restoration and/or renewals when necessary, as well as
painting and decorating.
Section 10.04 Lessee shall indemnify and save Lessor harmless
against and from all costs, expenses, liabilities, losses, damages, suits,
fines, penalties, claims and demands, including reasonable counsel fees,
resulting from Lessee's failure to comply with the foregoing section and
Lessee shall not call upon Lessor for any disbursement or outlay
whatsoever in connection therewith and hereby expressly releases and
discharges Lessor of and from any liability therefor.
Section 10.05 Lessee shall permit Lessor and Lessor's authorized
representatives to enter the Demised Premises and the buildings and
improvements on or above the Demised Premises at all reasonable times
during usual business hours for the purpose of inspecting the same and of
making any necessary repairs to the Demised Premises and to such buildings
and improvements and of performing any work therein that may be necessary
to comply with any laws, ordinances, rules, regulations or requirements of
any public authority, or that may be necessary to prevent waste or
deterioration in connection with the Demised Premises, which Lessee is
obligated, but has failed, to make, perform or prevent, as the case may
be. Nothing in this Lease shall imply any duty or obligation upon the
part of Lessor to do any such work or to make any alterations, repairs
(including, but not limited to, repairs and other restoration work made
necessary due to any fire, other casualty or partial condemnation,
irrespective of the sufficiency or availability of any fire or other
insurance proceeds or any award in condemnation, which may be payable in
respect thereof), additions or improvements to the Demised Premises or to
the buildings and improvements on or above the Demised Premises of any
kind whatsoever. The performance thereof by Lessor shall not constitute a
waiver of Lessee's default in failing to perform the same.
ARTICLE XI.
PUBLIC UTILITIES AND SERVICES
Section 11.01 Lessee agrees to pay or cause to be paid all charges
for gas, water, sewer, electricity, light, heat, power, steam, air-
conditioning, telephone or other communication service or other utility or
service used, rendered or supplied to, upon or in connection with the
Demised Premises or the buildings and improvements on or above or below
the Demised Premises throughout the Demised Term and to indemnify Lessor
and save it harmless against any liability or damages on such account.
Section 11.02 Lessor shall not be liable for any damage, loss or
expense incurred by Lessee by reason of any interruption or failure of the
utilities and services provided to the Demised Premises unless caused by
the willful misconduct or gross negligence of Lessor. Lessor may, with
notice to Lessee, or without notice in case of emergency, cut off and
discontinue utilities and services when such discontinuance is necessary
in order to make repairs or alterations. No such action shall be
construed as an eviction or disturbance of possession by Lessor, provided
Lessor acts with due diligence in making such repairs and alterations. No
discontinuance should be construed as a constructive or actual eviction
nor should it cause an abatement of rent or operate to release Lessee from
any of Lessee's obligations.
ARTICLE XII.
LIABILITY FOR OVERLOAD
Section 12.01 Lessee shall be liable to Lessor for any damage to the
Demised Premises from the movement of heavy articles. Lessee shall not
unduly load or overload the floors or any part of the Demised Premises.
ARTICLE XIII.
GLASS AND DOORS
Section 13.01 All glass and doors on the Demised Premises shall be
the responsibility of the Lessee. Any replacement or repair shall be
promptly completed at the expense of Lessee.
ARTICLE XIV.
HAZARDOUS MATERIALS
Section 14.01 During the term of this Lease, Lessee shall comply
with all Environmental Laws and Environmental Permits applicable to the
operation or use of the Demised Premises, shall cause all other persons
occupying or using the Demised Premises to comply with all such
Environmental Laws and Environmental Permits, shall immediately pay all
costs and expenses incurred by reason of such compliance, and shall obtain
and renew all Environmental Permits required for operation or use of the
Demised Premises. Lessee shall not generate, use, treat, store, handle,
release or dispose of, or permit the generation, use, treatment, storage,
handling, release or disposal, of Hazardous Materials on the Demised
Premises, or transport or permit the transportation of Hazardous Materials
to or from the Demised Premises, except for limited quantities used or
stored at the Demised Premises and required in connection with the routine
operation and maintenance of Lessee's business in the Demised Premises,
and then only in compliance with all applicable Environmental Laws and
Environmental Permits.
Section 14.02 Lessee will immediately advise Lessor in writing of
any of the following: any pending or threatened Environmental Claim
against Tenant relating to the Demised Premises; any condition or
occurrence on the Demised Premises, of which Lessor has knowledge that
results in noncompliance by Lessee with any applicable Environmental Law,
or could reasonably be anticipated to form the basis of an Environmental
Claim against Lessor and/or Lessor or the Demised Premises; and the
actual or anticipated taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on the Demised
Premises. All such notices shall describe in reasonable detail the nature
of the claim, investigation, condition, occurrence or removal or remedial
action and Lessee's response thereto. In addition, Lessee will provide
Lessor with copies of all communications regarding the Demised Premises
with any government or governmental agency relating to Environmental Laws,
all such communications with any person relating to Environmental Claims,
and such detailed reports of any such Environmental Claim as may
reasonably be requested by Lessor. At any time and from time to time
during the term of this Lease, and at Lessee's sole cost and expense,
Lessor or its agents may perform an environmental inspection of the
Demised Premises, and Lessee hereby grants to Lessor and is agents access
to the Demised Premises to undertake such an inspection upon reasonable
notice.
Section 14.03 Lessee agrees to defend, indemnify and hold harmless
the Lessor, its officers, Managers, owners and agents ("Indemnitees") from
and against all obligations (including removal and remedial actions),
losses, claims, suits, judgments, liabilities, penalties (including, by
way of illustration and not by way of limitation, civil fines), damages
(including consequential and punitive damages), costs and expenses
(including attorneys' fees and consultants' fees and expenses) of any kind
or nature whatsoever that may at any time be incurred by, imposed on or
asserted against such Indemnitees directly or indirectly based on, or
arising or resulting from the actual or alleged presence of Hazardous
Materials on the Demised Premises, which is caused or permitted by Lessee
and/or any Environmental Claim relating in any way to Lessee's operation
or use of the Demised Premises. The provisions of this Section shall
survive the expiration or sooner termination of this Lease.
Notwithstanding the above, Lessee shall not be liable for Environmental
Claims caused by materials used by Lessor in the original construction of
the Demised Premises to the extent that such materials were Hazardous
Materials at the time of the commencement of the Term.
Section 14.04 Lessor agrees to defend, indemnify and hold harmless
the Lessee, its officers, Managers, owners and agents ("Indemnitees") from
and against all obligations (including removal and remedial actions),
losses, claims, suits, judgments, liabilities, penalties (including, by
way of illustration and not by way of limitation, civil fines), damages
(including consequential and punitive damages), costs and expenses
(including attorneys' fees and consultants' fees and expenses) of any kind
or nature whatsoever that may at any time be incurred by, imposed on or
asserted against such Indemnitees directly or indirectly based on, or
arising or resulting from the actual or alleged presence of Hazardous
Materials on the Demised Premises, which is caused or permitted by Lessor
and/or any Environmental Claim relating in any way to Lessor's operation
or use of the Demised Premises prior to the commencement of the Term. The
provisions of this Section shall survive the expiration or sooner
termination of this Lease.
Section 14.05 (1) "HAZARDOUS MATERIALS" means (a) petroleum or
petroleum products, natural or synthetic gas, asbestos in any form, urea
formaldehyde foam insulation, and radon gas; (b) any substances defined as
or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous wastes, "restricted
hazardous wastes," toxic substances," "toxic pollutants," "contaminants"
or "pollutants," or words of similar import, under any applicable
Environmental Law; and (c) any other substance exposure which is regulated
by any governmental authority; (2) "ENVIRONMENTAL LAW" means any federal,
state or local statute, law, rule, regulation, ordinance, code, policy or
rule of common law now or hereafter in effect and in each case as amended,
and any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment, relating to
the environment, health, safety or Hazardous Materials; (3) "ENVIRONMENTAL
CLAIMS" means any and all administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of non-compliance
or violation, investigations, proceedings, consent orders or consent
agreements relating in any way to any Environmental Law or any
Environmental Permit, including without limitation (a) any and all
Environmental Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Law and/or (b) any and
all Environmental Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief
resulting from Hazardous Materials or arising from alleged injury or
threat of injury to health, safety or the environment; and (4)
"ENVIRONMENTAL PERMITS" means all permits, approvals, identification
numbers, licenses and other authorizations required under any applicable
Environmental Law.
ARTICLE XV.
ALTERATIONS, ADDITIONS AND NEW BUILDINGS
Section 15.01 Lessee agrees that it will not make any alterations
which would change the character of the buildings, structures and
improvements on the Demised Premises, or which would weaken or impair the
structural integrity or lessen the value of said buildings, structures and
improvements nor make any other alteration, addition, enlargement or
improvement thereof where the estimated cost of such alteration, addition,
enlargement or improvement is in excess of Ten Thousand Dollars ($10,000)
without the prior written consent of Lessor.
Section 15.02 Subject to the limitation contained in the foregoing
section, Lessee may, at any time during the term of this Lease, at
Lessee's own cost and expense, make or permit to be made any alteration,
change or addition, of, in or to the Demised Premises, or any part
thereof, subject, however, to the following conditions, each of which must
be fully observed and performed by Lessee before the commencement of any
work whatsoever, viz:
A. That there is no existing and unremedied default under this
Lease on the part of Lessee and of which Lessee has received notice of
default under any of the terms, covenants and conditions herein on the
part of the Lessee to be observed and performed.
B. That the same shall be performed with diligence and in a
first class, workmanlike manner.
C. That Lessee shall have delivered to Lessor detailed plans
and specifications for any alteration, change or addition whose estimated
cost exceeds Ten Thousand Dollars ($10,000) and shall have obtained
Lessor's written approval thereof, which approval shall not be
unreasonably withheld, and the approval of any and all governmental
authorities and departments having jurisdiction. If Lessor shall not have
signified its disapproval and the specific reasons for such disapproval
within thirty (30) days after delivery, the plans and specifications shall
be deemed to have been approved by Lessor.
D. That neither the Lessor nor the Demised Premises nor any
building or improvement on or above the Demised Premises shall be subject
to any mechanics' or materialman's charge, liability, claim or lien of
whatsoever kind or nature by reason thereof.
E. Lessee or Lessee's contractor shall and will provide and
maintain, at their own cost and expense, full workmen's compensation
insurance in respect to such work as well as any other insurance as may
then be required by law, and certificates of any such policies shall be
delivered to Lessor on demand.
F. During such construction, Lessor may inspect the excavation
and the building in the course of its construction and on its completion
and all work and materials thereof, and Lessee will permit Lessor to
examine the plans, especially drawings and specifications relating thereto
or, in the alternative, shall furnish Lessor with copies of same. Lessor
shall have the right to object to any deviation from such plans and
specifications as so approved, and upon receipt of any such notice, Lessee
shall take such steps as shall be necessary to correct such deviation.
G. Lessee shall procure all necessary permits for the
construction of new improvements.
Section 15.03 Any alterations, additions or improvements made by
Lessee upon, above or below the Demised Premises, except, equipment, trade
fixtures and machinery which may be removed by the Lessee without damaging
the buildings, structures and improvements situated on the Demised
Premises, shall at once when made become the property of the Lessor and
shall remain upon and be surrendered with the Demised Premises upon
termination of this Lease.
ARTICLE XVI.
SIGNS
Section 16.01 Lessee must obtain Lessor's prior written approval,
which approval shall not be unreasonably withheld, prior to placing any
signs in or on the Demised Premises, regardless of the size or value of
such sign(s).
ARTICLE XVII.
LIENS
Section 17.01 Lessee shall have no power to perform any act or to
make any contract which may create or be the foundation for any lien,
mortgage or other encumbrance upon the reversion or other estate of Lessor
or of any interest of Lessor in the Demised Premises or in the buildings
and improvements on, below or above the Demised Premises or fixtures and
machinery therein contained.
Section 17.02 Lessee shall not suffer or permit any liens to stand
against the Demised Premises or any buildings, structures and improvements
on, below or above the Demised Premises or any part thereof by reason of
any work, labor, services or materials done for or supplied to, or claimed
to have been done for, or supplied to, Lessee or anyone holding the
Demised Premises or the said buildings, structures and improvements or any
part thereof through or under Lessee. If any such lien shall at any time
be filed against the Demised Premises or the said buildings, structures
and improvements, Lessor may, by written notice to Lessee, require Lessee
to cause the same to be discharged of record within thirty (30) days after
the date of such notice, by either payment, deposit or bond. If Lessee
shall fail to discharge any such lien within such period and such failure
shall continue for a period of fifteen (15) days after notice by Lessor,
then, in addition to any other right or remedy of Lessor, Lessor may, but
shall not be obligated to, procure the discharge of the same either by
paying the amount claimed to be due in court or bonding and/or Lessor
shall be entitled, if Lessor so elects, to compel the prosecution of an
action for the foreclosure of such lien by the lienor and to pay the
amount of the judgment, if any, in favor of the lienor with interest,
costs and allowances. Any amount paid or deposited by Lessor for any of
the aforesaid purposes, and all legal and other expenses of Lessor,
including counsel fees, in defending any such action or in or about
procuring the discharge of such lien, with all necessary disbursements in
connection therewith, together with interest thereon at the rate of
eighteen (18%) percent per annum from the date of payment or deposit,
shall become due and payable forthwith by Lessee to Lessor, or, at the
option of the Lessor, shall be payable by Lessee to Lessor as additional
rent in accordance with the provisions of this Lease.
Section 17.03 Nothing in this Lease shall be deemed to be, or
construed in any way as constituting, the consent or request of Lessor,
expressed or implied, by inference or otherwise, to any person, firm or
corporation for the performance of any labor or the furnishing of any
materials for any construction, rebuilding, alteration or repair of or to
the Demised Premises or to the buildings and improvements on and above the
Demised Premises or any part thereof, nor as giving Lessee any right,
power or authority to contract for or permit the rendering of any services
or the furnishing of any materials which might in any way give rise to the
right to file any lien against Lessor's interest in the Demised Premises
or in the buildings and improvements on or above the Demised Premises.
Lessor shall have the right to post and keep posted at all reasonable
times on the Demised Premises and on the buildings and improvements on or
above the Demised Premises any notices which Lessor shall be required so
to post for the protection of Lessor and of the Demised Premises and of
such buildings, structures and improvements thereon from any such lien.
ARTICLE XVIII.
EXCULPATORY AND INDEMNITY
Section 18.01 Lessee is and shall be in exclusive control and
possession of the Demised Premises and of the buildings, structures and
improvements on or above the Demised Premises as provided herein, and
Lessor shall not in any event whatsoever be liable for any injury or
damage to any property or to any person happening on, in or about the
Demised Premises or the appurtenances thereto, including the buildings and
improvements, nor for any injury or damage to the Demised Premises or the
said buildings and improvements, nor to any property, whether belonging to
Lessee or any other person, caused by fire, breakage, leakage, defect or
bad condition in any part or portion of the Demised Premises or of the
buildings, structures and improvements on or above the Demised Premises,
or from steam, gas, electricity, water, rain or snow that may leak into,
issue or flow from any part of the said Demised Premises from the drains,
pipes or plumbing work of the same, or from street, subsurface or any
other place, or due to the use, misuse or abuse of all or any of the
elevators, hatches, openings, installations, stairways or hallways of any
kind whatsoever which may exist or hereafter be erected or constructed on
or above the Demised Premises, or from any kind of injury which may arise
from any other cause whatsoever on the said Demised Premises, including
defects in construction of any building, latent or otherwise. The
provisions hereof permitting Lessor to enter and inspect the Demised
Premises and the buildings, structures and improvements on, below or above
the Demised Premises are made for the purpose of enabling Lessor to become
informed as to whether Lessee is complying with the agreements, terms,
covenants and conditions hereof, and to do such acts as Lessee shall fail
to do.
Section 18.02 The parties shall indemnify and hold each other
harmless from and against all liability, judgments, claims, demands,
suits, actions, losses, penalties, fines, damages, costs and expenses
including attorneys' fees of any kind of nature whatsoever, due to or
arising out of or from:
A. Any breach, violation or non-performance of any covenant,
condition, provision or agreement in this Lease set forth and contained on
the part of Lessee to be fulfilled, kept, observed and performed, and
B. Claims of every kind or nature, arising out of the use and
occupation of the Demised Premises or of the buildings, structures and
improvements below, on or above the Demised Premises by Lessee, including,
without limitation, any damage to property occasioned or arising out of
the use and occupation thereof by Lessee or by any sublessee, subtenant or
assignee of Lessee, any injury to any person or persons, including death
resulting at any time therefrom, occurring in or about the Demised
Premises or the buildings, structures and improvements on, below or above
the Demised Premises or the sidewalks in front of the same or adjacent
thereto.
Section 18.03 Nothing contained in this article shall be deemed to
exculpate Lessor and Lessor's employees from damages arising out of their
own negligent conduct.
ARTICLE XIX.
LESSOR'S RIGHT OF INSPECTION
Section 19.01 Lessee has inspected the Demised Premises and accepts
the condition of same as it exists as of the date of move-in, subject to
repairs and replacements of which Lessee shall notify Lessor within thirty
(30) days thereafter and subject to latent defects. Lessor hereby assigns
Lessee all construction warranties with respect to the Demised Premises
and all causes of action for defects in workmanship.
Section 19.02 Lessee shall permit Lessor or its or their agents to
enter the Demised Premises and the buildings, structures and improvements
on, below or above the Demised Premises upon twenty-four hours written
notice for the purpose of inspection thereof, or of making repairs that
Lessee has neglected or refused to make in accordance with the agreements,
terms, covenants and conditions hereof, and also for the purpose of
showing the same to persons wishing to purchase or make a mortgage loan
thereon, and at any time within six (6) months prior to the expiration of
the Demised Term or any Extension to persons wishing to rent the whole or
part of the Demised Premises. Lessor shall make reasonable efforts to
avoid interference with Lessee's business activities on the Demised
Premises during such inspections.
ARTICLE XX.
DAMAGE AND DESTRUCTION
Section 20.01 Lessee shall notify the Lessor of the exact cause,
nature and extent of any damage immediately upon the occurrence of such
damage to any part of the Demised Premises. Lessee shall further notify
Lessor within twenty (20) days of the occurrence of such damage if it
desires not to repair, replace or rebuild the Demised Premises as
necessary to restore the same to their condition prior to such damage.
Upon receipt of such notice, Lessor may elect to either terminate the
Lease and retain all insurance proceeds or require Lessee to repair,
replace or rebuild. Unless Lessor elects to terminate the Lease within
forty-five (45) days of Lessor's receipt of Lessee's notice regarding the
occurrence of damage, Lessee shall promptly repair, replace and rebuild
the Demised Premises to the condition prior to such damage. If Lessee
repairs, replaces or rebuilds the Demised Premises, Lessee shall be
entitled to the net insurance proceeds, if any, received by Lessor with
respect to such damage (other than rent insurance) and Lessee shall pay
any costs in excess of the net insurance proceeds which are incurred to
restore the Demised Premises to their condition prior to such damage. If
the Lessor elects to terminate the Lease, the Lease shall be deemed to
have expired on the date of notice of loss, and all insurance proceeds,
plus the amount of any deductible under the insurance policies, shall be
paid to and retained by the Lessor. There shall be no abatement of Rent
unless and to the extent that Lessor receives rent insurance proceeds from
the insurance purchased by Lessee. In no event shall Lessor be required
to make any repairs, replacements, or rebuild any portion of the Demised
Premises.
ARTICLE XXI.
CONDEMNATION
Section 21.01 If all or any substantial part of the Demised Premises
or of the buildings constructed thereon, the absence of which materially
prevents Lessee's use of the Demised Premises shall be lawfully taken or
condemned (or conveyed under threat of such taking or condemnation) for
any public or quasi-public use or purpose, this Lease shall end upon, and
not before, the date of the taking of possession by the condemning
authority, and without apportionment of the award. Lessee hereby assigns
to Lessor Lessee's interest, if any, in the award except that Lessee shall
be entitled to receive compensation for its personalty, the unamortized
value of its improvements, moving expenses and the loss of the leasehold
interest. Rent shall be apportioned as of the date of termination. If any
part of the Demised Premises, not constituting a substantial part thereof
and the taking of which does not materially prevent Lessee's use of the
Demised Premises, shall be so taken or condemned (or conveyed under threat
of such taking or condemnation), Lessee shall make such repairs and
reconstruction as is necessary to return the Demised Premises, as early as
possible, to their condition prior to the taking or conveyance, such that
Lessee may continue to use the Demised Premises. Lessee shall be
reimbursed for any repair and restoration expenses to the extent that
Lessor receives an award and Lessor's mortgagee consents to release the
funds. Rent shall be recomputed equitably to reflect Lessee's loss of use
of any portion of the buildings on the Demised Premises.
Section 21.02 No money or other consideration shall be payable by
Lessor to Lessee for the termination and, except as set forth above,
Lessor shall have no right to share in any condemnation award, or in any
judgment for damages, or in any proceeds of any sale made under any threat
of condemnation of taking. Nothing in this Section shall prevent Lessee
from making and pursuing a claim against the condemning authority in its
own right in the event of a total taking of the Demised Premises, provided
that such award does not diminish Lessor's award.
ARTICLE XXII.
NO ABATEMENT OF RENT
Section 22.01 Except as otherwise specifically provided in this
Lease, no abatement, setoff diminution or reduction of rent, charges or
other compensation shall be claimed by or allowed to Lessee, or any person
claiming under it, under any circumstances, whether for inconvenience,
discomfort, interruption of business, or otherwise, arising from the
making of alterations, changes, additions, improvements or repairs to any
buildings or improvements now on or above or which may hereafter be
erected on or above the Demised Premises, by virtue or because of any
present or future governmental laws or ordinances.
Section 22.02 If any adjoining building or structure encroaches upon
the Demised Premises, no claim or demand or objection of any kind shall be
made by Lessee against Lessor by reason of such encroachments; and no
claim for abatement of rent and of other charges which may become due
under this Lease shall be made by reason of such encroachments or acts of
or in connection with the removal thereof, and the rights, liabilities and
obligations of the parties hereto shall be the same as if there were no
encroachments and in any legal proceedings relating thereto the Demised
Premises may properly and without prejudice be described according to the
description hereinbefore contained without reference to any such
encroachments. Lessor agrees to cooperate with Lessee in any proceedings
brought by Lessee to prevent or remove such encroachments, provided such
cooperation shall not cause Lessor to incur any expense therein.
Section 22.03 Notwithstanding any other provision of this Lease
Agreement, the obligation of Lessee to pay rent hereunder shall cease upon
termination; except that in the event of termination for cause by Lessor,
the obligation of Lessee to pay rent shall continue according to the terms
hereof, and Lessor shall have the obligation to mitigate Lessee's said
obligation by making reasonable efforts to release.
ARTICLE XXIII.
ASSIGNMENT AND SUBLETTING
Section 23.01 The Lessee shall not, without the prior written
consent of the Lessor, which consent shall not be unreasonably withheld,
sell, assign, convey, exchange, or in any manner transfer this Lease, or
any interest therein, or the term or estate of the Lessee hereunder, in
whole or in part, or rent, sublet, sublease or under-let the Demised
Premises or the buildings or improvements thereon or any portion thereof.
Section 23.02 If the Demised Premises or any part thereof be sublet
or occupied by anyone other than Lessee, Lessor may, after default by
Lessee, collect rent from the purchaser, assignee, subtenant or occupant
and apply the net amount collected to the rent herein reserved, but no
such subletting, occupancy or collection shall be deemed a waiver of this
covenant, or acceptance of the purchaser, assignee, subtenant or occupant
as tenant, or a release of Lessee from the further performance by Lessee
of the terms, covenants and conditions of this Lease on the part of Lessee
to be performed.
Section 23.03 Notwithstanding the foregoing, Lessee may assign and
sublet the Demised Premises, or any portion thereof, without Lessor's
consent to any entity which controls, is controlled by or is under common
control with Lessee, or any corporation resulting from the merger or
consolidation of Lessee, or, subject to Lessor's consent which consent
will not be unreasonably withheld, to any person or entity which acquires
all of the assets of Lessee as a going concern of the business that is
being conducted on the Demised Premises provided said assignee assumes, in
full, the obligations of Lessee under this Lease. Any such assignment
shall not, in any way, affect, release, or limit the liability of Lessee
under the terms of this Lease.
ARTICLE XXIV.
LESSOR'S LIEN
Section 24.01 This Lease and the rights of Lessee shall be and are
hereby made subject and subordinate to the lien of any mortgages, deeds of
trust, assignments of rents, and security interests now or hereafter
existing against the Demised Premises, and to all renewals, modifications,
consolidations, replacements and extensions thereof and to all advances
made now or in the future Although the subordination shall be self-
operating, Lessee or its successors-in- interest, shall upon Lessor's
request, execute and delivery any and all instruments reasonably desired
by Lessor, subordinating, in the manner reasonably requested by Lessor,
this Lease to any mortgage or deed of trust; provided Lessor
simultaneously provides a nondisturbance agreement executed by any such
lender in a form reasonably acceptable to Lessee. If Lessee unreasonably
fails to execute such instruments within fifteen (15) business days of
Lessor's delivery of such instruments and nondisturbance agreement to
Lessee, then Lessee shall be deemed to be in default pursuant to this
Lease.
Section 24.02 Should any mortgage or deed of trust affecting the
Demised Premises be foreclosed, then (i) the liability of the mortgagee,
beneficiary or purchaser at the foreclosure sale to Lessee shall exist
only so long as the mortgagee beneficiary, or purchaser is the owner of
the Demised Premises and the liability shall not continue or survive after
further transfer of ownership; and (ii) Lessee shall be deemed to have
attorned, as Lessee under this Lease, to the purchaser at any foreclosure
sale and this Lease shall continue in force and effect as a direct lease
between and binding upon Lessee and the purchaser and any foreclosure
sale. As used herein, "mortgagee" and "beneficiary" shall include
successors and assigns of any such party, whether immediate or remote, the
purchaser of any mortgage or deed of trust, whether at foreclosure or
otherwise, and the successors, assigns and mortgagees and beneficiaries of
such purchaser, whether immediate or remote.
Section 24.03 In the event of any act or omission by Lessor under
this Lease which would give Lessee the right to terminate this Lease or to
claim a partial or total eviction, Lessee will not exercise any such right
until:
A. it has given thirty (30) days written notice (by United
States certified or registered mail, postage prepaid) of such act or
omission to Lessor and to the holder of any mortgage or deed trust on the
Property (whose names and addresses Lessor agrees will be furnished to
Lessee on request) and Lessor has failed to cure such act or omission
within such thirty (30) day period; and
B. any holder of any mortgage or deed of trust on the Demised
Premises shall, following the giving of such notice, have failed with
reasonable diligence to commence and to pursue reasonable action to remedy
the act or omission.
ARTICLE XXV.
DEFAULTS
Section 25.01 Any one or more of the following events shall
constitute events of default hereunder:
A. If Lessee shall totally desert or completely abandon the
Demised Premises or the buildings, structures and improvements above the
Demised Premises and such desertion or abandonment shall continue for a
period of thirty (30) days; or
B. If Lessee shall default in making payment to Lessor of any
rent, adjusted rent, additional rent or any money advanced by Lessor and
collectible as additional rent, as and when the same shall become due and
payable, after being given written notice thereof, and such default in
payment shall continue for a period of five (5) days after receipt of such
notice; or
C. If Lessee shall fail to pay any charge, rent, governmental
imposition, or any other charge or lien against the Demised Premises or
the buildings and improvements above the Demised Premises which Lessee is
required to pay at least ten (10) days prior to the expiration of any
grace period allowed by law or by the governmental authority imposing the
same and such default shall continue for a period of ten (10) days after
notice by Lessor; or
D. If Lessee shall default in complying with any other
agreement, term, covenant or condition of this Lease and such default in
compliance shall continue for a period of twenty-five (25) days after
notice by Lessor specifying the claimed default, and Lessee shall not, in
good faith, have commenced, within said twenty-five (25) day period, to
remedy such default and diligently and continuously proceed therewith; or
E. If this Lease or the estate of Lessee hereunder shall be
transferred, assigned or subleased in its entirety to any person or party
and Lessee shall fail to remedy or correct same within ten (10) days after
notice by Lessor; or
F. If Lessee shall be adjudicated a bankrupt, or if a petition
or complaint in bankruptcy, either voluntarily or involuntarily be filed
by or with respect to Lessee, under any state or federal bankruptcy or
creditors act, and such proceeding has not been dismissed within sixty
(60) days after the institution thereof, or if the Lessee shall make an
assignment for the benefit of its creditors, or if a trustee, receiver,
conservator, or creditors committee should be formed to administer,
conserve, operate or merge the assets of Lessee or any portion thereof and
such trustee, receiver, conservator or creditor committee is not
dismissed, discharged or disbanded within sixty (60) days after the
appointment or formation thereof.
ARTICLE XXVI.
LESSOR'S REMEDIES
Section 26.01 Upon the occurrence of any one or more of the events
of default, as defined in the preceding article, and at any time during
the continuance of such event of default, Lessor shall serve a written ten
(10) day notice of cancellation and termination of this Lease, and, if the
default is not cured, upon the expiration of said ten (10) days, this
Lease and the term hereunder shall end and expire as fully and completely
as if the date of expiration of such ten (10) day period were the day
herein definitely fixed for the end and expiration of this Lease and the
Demised Term, and Lessee shall then quit and surrender to Lessor the
Demised Premises and the buildings and improvements on or above the
Demised Premises and each and every part thereof, and Lessor may enter
into or possess the Demised Premises and such buildings and improvements
and each and every part thereof in accordance with applicable law.
In the event this Lease is terminated pursuant to the foregoing, all
of the right, title and estate and interest of the Lessee in and to the
Demised Premises shall automatically pass to, vest in and belong to the
Lessor, upon compliance with applicable law and without cost or charge to
Lessor, free of any claim thereto by Lessee.
Section 26.02 Upon the occurrence of any one or more of the events
of default as defined in the preceding article, and at any time during the
continuance of such events of default, Lessor may, but shall not be
obligated to, upon a written five (5) day notice to Lessee, or without
notice if in Lessor's opinion an emergency exists, and without terminating
this Lease, do and perform such acts and make such payments as may be
necessary to cure such default, all for the account and at the expense of
Lessee. If Lessor shall incur any expense, including reasonable
attorneys' fees, in instituting, prosecuting, or defending any action or
proceeding instituted by reason of any default by Lessee, Lessee shall
reimburse Lessor for the amount of such expense. Should Lessee, pursuant
to this Lease, become obligated to reimburse or otherwise pay Lessor one
or more sums of money in addition to the specific rent, the amount thereof
shall be deemed further additional rental and may, at the option of the
Lessor, be added to any subsequent installment of the specific rent due
and payable under this Lease, in which event Lessor shall have the
additional remedies for default in the payment thereof provided by this
article. The provisions of this section shall survive the termination of
this Lease.
Section 26.03 Upon the occurrence of any one or more of the events
of default, as defined in the preceding article, and at any time during
the continuance of such events of default, and upon compliance with all
applicable laws, Lessor shall have the right of injunction to restrain the
same and the right to invoke any remedy allowed by law or in equity, as if
specific remedies, indemnity or reimbursement were not herein provided.
Section 26.04 In the event of any termination of this Lease, whether
by expiration, forfeiture, cancellation, surrender or by operation of law
or by issuance of a final court order, and upon full compliance with
applicable law, Lessor may re-enter the Demised Premises and enter the
buildings and improvements on or above the Demised Premises and remove
therefrom Lessee, its agents, employees, licensees and any sublessees,
persons, firms or corporations and all of their respective property, using
such force for that purpose as may be necessary without being liable for
prosecution or damages therefor, and thereupon Lessor shall be entitled to
retain possession of the Demised Premises and the buildings and
improvements on or above the Demised Premises with all additions,
alterations and improvements thereon, fixtures and appurtenances thereto,
free from any estate or interest of Lessee therein.
Section 26.05 No receipt of moneys by Lessor from Lessee after the
termination hereof in any lawful manner shall reinstate, continue or
extend the term, or affect any notice theretofore given to Lessee, or
operate as a waiver of the right of Lessor to enforce the payment of any
rent and additional rent then due or thereafter falling due, or operate as
a waiver of the right of Lessor to recover possession of the Demised
Premises by proper suit, action, proceedings or other remedy; it being
agreed that after the service of notice of termination as herein provided
and the expiration of the time therein specified, after the commencement
of any suit, action, proceedings or other remedy, or after a final order
or judgment for possession of the Demised Premises, Lessor may demand,
receive and collect any moneys due, or thereafter falling due, without in
any manner affecting such notice, suit, action, proceedings, order or
judgment; and any and all such moneys so collected shall be deemed to be
payments on account of the use and occupation of the Demised Premises, or,
at the election of Lessor, on account of Lessee's liability hereunder.
Section 26.06 In case of any such termination, re-entry, or
dispossession by summary proceedings or otherwise, the rent, and all other
charges required to be paid by Lessee hereunder, shall thereupon become
due and payable up to the time of such termination, reentry or
dispossession and Lessee shall also pay to Lessor all expenses which
Lessor may then or thereafter incur for legal expenses, reasonable
attorneys' fees, brokerage commissions, and all other costs paid or
incurred by Lessor for restoring the Demised Premises and the buildings,
structures and improvements thereon to good order and condition and for
altering and otherwise preparing the same for reletting. Lessor may, at
any time and from time to time, relet the Demised Premises, in whole or in
part, either in its own name or as agent of Lessee, for a term or terms
which, at Lessor's option, may be for the remainder of the then current
term of this Lease, or for any longer or shorter period, and (unless the
statute or rule of law which governs or shall govern the proceeding in
which such damages are to be proved, limits or shall limit the amount of
such claim capable of being so proved and allowed, in which case Lessor
shall be entitled to prove as and for liquidated damages and have allowed
an amount equal to the maximum allowed by or under any such statute or
rule of law), and Lessee shall be obligated to and shall pay to Lessor as
damages, upon demand, and Lessor shall be entitled to recover of and from
Lessee, at the election of Lessor, either:
A. Damages in an amount which, at the time of such
termination, reentry or dispossession by Lessor, as the case may be, is
equal to the excess, if any, of the then present value of the installments
of rent, reserved hereunder, for the period which would otherwise have
constituted the unexpired portion of the Demised Term, over the then
present value of the net rental value of the Demised Premises for such
unexpired portion of the Demised Term.
B. Damages (payable in monthly installments, in advance, on
the first day of each calendar month following such termination, reentry
or dispossession, and continuing until the date originally fixed herein
for the expiration of the Demised Term) in an amount or amounts equal to
the excess, if any, of the sum of the aggregate expenses paid by Lessor
during the month immediately preceding such calendar month for all such
items as by the terms of this Lease are required to be paid by Lessee,
plus an amount equal to the amount of the installments of rent which would
have been payable by Lessee hereunder in respect of such calendar month,
had this Lease and the Demised Term not been so terminated, or had Lessor
not so reentered, in excess of the rents, if any, collected by or accruing
to Lessor in respect of such calendar month pursuant to either such
reletting or from any existing subleases; and any suit or action brought
to collect the amount of the deficiency for any calendar month shall not
prejudice in any way the rights of Lessor to collect the deficiency for
any subsequent month by a similar proceeding.
Section 26.07 In the event of any termination of this Lease, whether
by expiration, forfeiture, cancellation, surrender, or by operation of law
or any issuance of a final court order, Lessor, at its option, may make
such alterations, repairs and/or decorations in the Demised Premises as in
its reasonable judgment Lessor considers advisable and necessary, and the
making of such alterations, repairs and/or decorations shall not operate
or be construed to release Lessee from liability hereunder. Costs for
reletting and remodeling shall be deemed to be an expense of reletting and
shall be charged to Lessee. Suit or suits for the recovery of such
damages, or any installments thereof, may be brought by Lessor from time
to time at its election, and nothing herein contained shall be deemed to
require Lessor to postpone suit until the date when the term of this Lease
would have expired if it had not been terminated under the provisions of
this Lease, or under any provision of law, or had Lessor not reentered
into or upon the Demised Premises.
Section 26.08 The rights and remedies given to Lessor in this Lease
are distinct, separate and cumulative, and no one of them, whether or not
exercised by Lessor, shall be deemed to be in exclusion of any of the
others herein or by law or in equity; provided, and nothing herein
contained shall, however, limit or prejudice the right of Lessor to prove
for and obtain as liquidated damages by reason of such termination, an
amount equal to the maximum allowed by any other statute or rule of law in
effect at the time when, and governing the proceedings in which such
damages are to be proved, whether or not such amount be greater, equal to
or less than the amount of the difference referred to above.
ARTICLE XXVII.
NO WAIVER
Section 27.01 Waiver by Lessor of any breach by Lessee of any
covenant or condition herein contained or failure by the Lessor to
exercise any right or remedy in respect of any such breach shall not
constitute a waiver or relinquishment for the future of any such covenant
or condition or of any subsequent breach of any such covenant or condition
nor bar any right or remedy of Lessor in respect of any such subsequent
breach, nor shall the receipt of any rent (regardless of any endorsement
on any check or any statement in any letter accompanying any payment of
rent) by Lessor, or of any portion thereof, operate as an accord and
satisfaction or a waiver of the right of Lessor to enforce the payment of
rent due or as a bar to the termination of this Lease and the recovery of
the Demised Premises because of default in the payment of said rents
previously due, by any appropriate remedy Lessor may select.
ARTICLE XXVIII.
NOTICES
Section 28.01 Whenever it is provided herein that notice, demand,
request or other communication shall or may be given to, or served upon,
either of the parties by the other, and whenever either of the parties
shall desire to give or serve upon the other any notice, demand, request
or other communication with respect hereto or the Demised Premises, each
such notice, demand, request or other communication shall be in writing
and, any law or statute to the contrary notwithstanding, shall not be
effective for any purpose unless the same shall be given or served by
personal delivery or by mailing the same by registered or certified mail,
postage prepaid, return receipt requested, addressed to the receiving
party at the address set forth below, or at such other address as the
receiving party may from time to time designate by notice given to the
sending party as herein provided.
To Lessor: Five K Investments
11445 W. I70 Frontage Road North
Wheat Ridge, Colorado 80033
To Lessee: Vari-L Company, Inc.
11900 E. 49th Ave.
Denver, Colorado 80239
Every such notice, demand, request or other communication hereunder
shall be deemed to have been given or served for all purposes hereunder
upon receipt if personally delivered or five (5) days after receipt or
refusal if served by mail.
ARTICLE XXIX.
QUIET ENJOYMENT AND OTHER COVENANTS OF LESSOR
Section 29.01 Lessor covenants that it holds title to the Demised
Premises, that it has the right to lease the Demised Premises, that
Lessee, on paying the rent reserved and on performing all the terms,
covenants and conditions hereof on the part of Lessee to be performed and
not being in default under any of the terms of this Lease, shall at all
times during the Demised Term peacefully and quietly have, hold and enjoy
the Demised Premises.
ARTICLE XXX.
ATTORNMENT AND NON-DISTURBANCE
Section 30.01 Lessee accepts this Lease subject and subordinate to
any mortgage(s) and/or deed(s) of trust now or at any time hereafter
constituting a lien or charge upon the Demised Premises and the buildings
and improvements situated thereon. Lessee shall at any time hereafter, on
demand, execute any instruments, releases or other documents which may be
required by any mortgagee for the purpose of subjecting and subordinating
this Lease to the lien of any such mortgage. However, Lessor shall obtain
from the holder of any such mortgage a non-disturbance agreement by the
terms of which said mortgage holder or its successors or assigns shall
recognize the rights of Lessee, provided that Lessee is not in default at
such time, and Lessee agrees to attorn to said mortgage holder.
ARTICLE XXXI.
COVENANT TO YIELD POSSESSION
Section 31.01 Except as herein otherwise provided, Lessee shall on
the last day of the term, or upon the sooner termination of the term,
peaceably and quietly surrender and deliver up to Lessor the Demised
Premises and the buildings, structures and improvements on or above the
Demised Premises, broom-clean and free of Lessee's property, in as good
condition as they were on the first day of the term, ordinary wear and
tear excepted. Provided Lessee is not in default, it shall have the right
to remove all of its trade fixtures, equipment, machinery and other
personal property, if such removal can be accomplished without damage to
the Demised Premises and the buildings and improvements situated thereon.
In the event the Lessee does not remove any of its own fixtures, equipment
or personal property prior to the last day of the term of this Lease, the
Lessor may, at its option, require the Lessee to remove any such fixtures
and equipment and restore the Demised Premises to the condition as existed
at the commencement of the Lease, or retain the same. Lessee hereby
waives any notice now or hereafter required by law with respect to
vacating the Demised Premises at any such termination date.
ARTICLE XXXII.
ESTOPPEL CERTIFICATES
Section 32.01 Lessee shall, without charge, at any time and from
time to time, within ten (10) days after request by Lessor, deliver a
written instrument to Lessor or any other person, firm or corporation
specified by Lessor, duly executed and acknowledged, certifying:
A. That the Lease is unmodified and in full force and effect,
or if there has been a modification, that the same is in full force and
effect as so modified, and identifying any such modification;
B. Whether or not there are then existing any setoffs or
defenses in favor of Lessee against the enforcement of any of the terms,
covenants and conditions of this Lease by Lessor, and if so, specifying
the same, and also whether or not Lessor has observed and performed all of
the terms, covenants and conditions on the part of Lessor to be observed
and performed, and if not, specifying same; and
C. The dates to which annual rent, participation rental,
additional rental and all other charges hereunder have been paid.
Section 32.02 Lessor shall, without charge, and at any time and from
time to time, within ten (10) days after request by Lessee, deliver a
written instrument to Lessee or any other person, firm or corporation
specified by Lessee, duly executed and acknowledged, certifying:
A. As to the same facts as set forth in this article as may be
requested by Lessee; and
B. Whether or not there are then any existing setoffs or
defenses in favor of Lessor against the enforcement of any of the terms,
covenants and conditions of this Lease by Lessee, and if so, specifying
the same, and also whether or not Lessee has observed and performed all of
the terms, covenants and conditions on the part of Lessee to be observed
and performed, and if not, specifying same.
ARTICLE XXXIII.
PARTIAL INVALIDITY
Section 33.01 If any term or provision of this Lease or the
application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application
of such term or provision to persons or circumstances other than those as
to which it is invalid or unenforceable, shall not be affected thereby,
and each term and provision of this Lease shall be valid and be enforced
to the fullest extent permitted by law.
ARTICLE XXXIV.
CONTROLLING LAW
Section 34.01 This Lease shall be governed by and construed in
accordance with the local laws of the State of Colorado.
ARTICLE XXXV.
CAPTIONS
Section 35.01 The captions and headings in this Lease are inserted
only as a matter of convenience and for reference, and they in no way
define, limit or describe the scope of this Lease or the intent of any
provision thereof.
ARTICLE XXXVI.
SHORT FORM LEASE AND COUNTERPARTS
Section 36.01 The parties hereto may, subsequent to the execution
and delivery hereof, execute, acknowledge and deliver a short form
memorandum of lease for the purpose of recording, but the parties further
agree that the terms, covenants and conditions of this Lease shall
control.
Section 36.02 The parties hereto have simultaneously executed,
acknowledged and delivered this Lease in duplicate counterparts. Each of
such counterparts is in all respects similar and is to be deemed complete
in itself and any one of which may be introduced in evidence or used for
any purpose without the introduction of any counterparts thereof.
ARTICLE XXXVII.
SUCCESSORS AND ASSIGNS
Section 37.01 All of the terms, covenants and conditions herein
contained shall inure to the benefit of and be binding upon the Lessor,
its successors and assigns, and the Lessee, its successors and assigns,
and those who at any time shall be the owners of the land or of the
leasehold estate hereby created, respectively, or of the buildings and
improvements on, below or above the Demised Premises; provided, however,
that no transfer by or through the Lessee of any interest under this
Lease, whether by act of Lessee, operation of law or otherwise in
violation of any of the provisions hereof shall confer any rights upon
such transferee.
ARTICLE XXXVIII.
ATTORNEYS' FEES
Section 38.01 In the event any litigation or arbitration between the
Lessor and Lessee to enforce any provision of this Lease, the successful
party shall be entitled to an award of its reasonable attorneys' fees from
the unsuccessful party.
ARTICLE XXXIX
MODIFICATIONS OR EXTENSIONS
Section 39.01 No modification or extension of this Lease shall be
binding unless in writing and signed by the parties hereto and endorsed
hereon and attached hereto.
ARTICLE XL
CONSENTS AND APPROVALS
Wherever in this Lease the consent or approval of Lessor or Lessee is
required to be obtained, such consent or approval shall not be
unreasonably withheld or delayed, and if such consent is denied, the party
withholding consent shall simultaneously notify the other party of the
reasons for the denial and alternative actions, if any, which may be
undertaken to secure the required consent.
ARTICLE XLI
MEMORANDUM OF LEASE - RECORDING
The parties hereto agree this Lease shall not be recorded unless
required by a lender.
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be executed in duplicate as of the date and year first above written.
LESSOR:
By:/s/Harold Kunz
General Partner
LESSEE:
By: /s/ David Sherman
David Sherman, President
ATTEST:
/s/Jon L. Clark
Secretary
ACKNOWLEDGMENTS
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 12th day of
March, 1997, by David Sherman, as President, and Jon L. Clark, as
Secretary of Vari-L Company, Inc., Lessee.
Witness my hand and official seal.
My commission expires:.6/20/98
/s/Colleen Conger
Notary Public
( S E A L )
ACKNOWLEDGMENTS
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 13th day of
March, 1997, by Harold Kunz as General Partner of Five K Investments,
Lessor.
Witness my hand and official seal.
My commission expires:.12/9/97
/s/D.J. Hayes
Notary Public
