U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-QSB
(Mark One)
X Quarterly report under Section 13 or 15(d) of the Securities Exchange act
- ---- of 1934
For the quarterly period ended July 31, 1997
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Transition report under Section 13 or 15(d) of the Exchange Act
- ----
For the transition period from to
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Commission file number Securities Act Registration No. 33-75276
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Creative Medical Development, Inc.
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(Exact Name of Small Business Issuer as Specified in its Charter)
Delaware 68-0281098
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification NO.)
975 SE Sandy Blvd. Portland, Oregon 97214
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(Address of Principal Executive Offices)
(503) 230-8034
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(Issuer's Telephone Number, Including Area Code)
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(Former Name, Former Address and Former Fiscal Year,
if Changed Since Last Report)
Check whether the issuer: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes X No
----- -----
APPLICABLE ONLY TO ISSUERS INVOLVED IN
BANKRUPTCY PROCEEDINGS DURING THE
PRECEDING FIVE YEARS
Check whether the registrant filed all documents and reports required to be
filed by Section 12, 13 or 15(d) of the Exchange Act after the distribution of
securities under a plan confirmed by a court.
Yes No
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APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's classes of
common equity, as of the latest practicable date: 5,554,337 Common Shares and
622,065 Series B Preferred Shares all at $.01 par value were outstanding as of
August 31, 1997.
<PAGE>
CREATIVE MEDICAL DEVELOPMENT, INC.
FORM 10-QSB
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1997
INDEX
Page
----
PART I. FINANCIAL
Item 1. Financial Statements
Unaudited Consolidated Balance Sheets.........................1
Unaudited Consolidated Statements of Operations...............2
Unaudited Consolidated Statements of Cash Flows...............3
Notes to Unaudited Consolidated Financial
Statements....................................................4
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations.................7
PART II. OTHER INFORMATION..................................................9
Item 1. Legal Proceedings
Item 2. Changes in Securities
Item 3. Defaults Upon Senior Securities
Item 4. Submission of Matters to a Vote of Security Holders
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
SIGNATURES...................................................................10
<PAGE>
CREATIVE MEDICAL DEVELOPMENT, INC.
UNAUDITED CONSOLIDATED BALANCE SHEETS
ASSETS
------
July 31, 1997 April 30, 1997
(Unaudited)
----------- ------------
Current Assets:
Cash $ 0 $ 139,635
Book overdraft (4,960) 0
Investment Securities 0 755,123
Accounts receivable, net 2,084,493 1,818,109
Inventories, net 2,429,265 2,494,743
Prepaid expenses and deposits 257,946 20,680
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Total current assets 4,766,744 5,228,290
Real estate held for sale 1,500,000 1,500,000
Property, plant and equipment, net 3,988,538 4,286,656
Organization costs, net 208,213 237,955
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$ 10,463,495 $ 11,252,901
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LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
Current Liabilities:
Accounts Payable $ 1,415,815 $ 1,364,079
Accrued Liabilities 674,322 1,150,604
Notes Payable 3,112,598 4,376,723
Current portion of long-term debt 70,746 31,000
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$ 5,273,481 $ 6,922,406
Long-term debt, less current portion $ 3,594,585 $ 2,845,276
Deferred Revenue 79,084 0
Non-current accrued liabilities 265,950 265,950
Commitments and contingencies
Stockholders' equity:
Common Stock $ 55,305 $ 55,543
Preferred stock 6,221 6,221
Additional paid in capital 2,419,842 2,444,606
Retained earnings (deficit) $ (1,230,975) $ (1,287,101)
------------ ------------
Total stockholders' equity $ 1,250,393 $ 1,219,269
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$ 10,463,495 $ 11,252,901
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1
<PAGE>
CREATIVE MEDICAL DEVELOPMENT, INC.
UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS
Quarter Quarter
Ended Ended
July 31 July 31
1997 1996
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Sales $ 3,826,383 $ 3,813,037
Cost of sales 2,837,363 2,768,962
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Gross profit 989,020 1,044,075
Selling expenses 335,801 336,223
Administrative expenses 393,870 368,264
Research and development 1,650 7,471
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731,321 711,958
Earnings from operations 257,699 332,117
Other income (expense):
Interest expense (167,529) (177,126)
Miscellaneous expense (34,042) (22,828)
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Total other expense (201,563) (199,954)
Earnings before income taxes 56,128 132,163
Income taxes 0 49,099
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Net earnings $ 56,128 $ 83,064
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Net earnings per share $ 0.01 $ 0.01
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Weighted average common shares
outstanding $ 5,546,412 $ 5,554,337
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2
<PAGE>
<TABLE>
<CAPTION>
CREATIVE MEDICAL DEVELOPMENT, INC.
CONSOLIDATED STATEMENT OF CASH FLOW
Quarter Quarter
Ended Ended
July 31 July 31
1997 1996
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<S> <C> <C>
Cash Flows from Operating Activities
Net Income $ 56,128 $ 83,096
Adjustments to reconcile net income to
net cash provided (used) by change in assets and liabilities:
Depreciation 66,167 89,473
Amortization 29,744 29,812
Cash provided (used) by current assets and libilities:
Accounts receivable (266,385) (487,622)
Inventories 65,479 112,829
Prepaid expenses and deposits (237,267) (21,147)
Accounts payable (99,610) (96,201)
Accrued liabilities 9,562 242,931
Income taxes payable 0 49,115
Deferred gain 79,084 0
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Net cash provided (used) by operating activities (297,098) 1,754
Cash Flow from Investing Activities
Proceeds from sale of plant, property & equipment 418,757 0
Purchase of plant, property & equipment (186,807) (129,365)
Proceeds from sale of investment securities 755,123 0
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Net cash provided (used) in investing activities 987,073 (129,365)
Cash Flows from Financing Activities
Payments to acquire common stock (25,003) 0
Net payments on notes payable (433,465) (3,766)
Net payments on long term debt (376,103) (239,701)
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Net cash provided (used) by financing activities (834,571) (243,467)
Net increase (decrease) in cash and cash equivalents ($144,596) ($371,078)
Cash and cash equivalents at beginning of period $ 139,636 $ 382,032
Cash and Cash equivalents at end of period (4,960) $ 10,955
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3
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</TABLE>
CREATIVE MEDICAL DEVELOPMENT, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(1) INTERIM FINANCIAL INFORMATION
The accompanying unaudited consolidated financial statements of Creative
Medical Development, Inc. have been prepared by the Company pursuant to the
rules and regulations of the Securities and Exchange Commission. Certain
information and footnote disclosures normally included in consolidated
financial statements prepared in accordance with generally accepted
accounting principles have been omitted pursuant to such rules and
regulations. In the opinion of Management, the consolidated financial
statements include all adjustments necessary in order to make the
consolidated financial statements not misleading. Results for the period
ended July 31, 1997 are not necessarily indicative of the results that may
be expected for the fiscal year ending April 30, 1998. For further
information, refer to the consolidated financial statements and footnotes
thereto, for the fiscal year ended April 30, 1997, included in the
Company's Form 10-KSB.
(2) DESCRIPTION OF THE COMPANY, BASIS OF PRESENTATION AND CHANGE IN REPORTING
ENTITY
Creative Medical Development, Inc. (CMD), incorporated in California on
July 20, 1992, designed, developed, manufactured and marketed propriety
ambulatory infusion therapy products for alternate site patient care. On
September 13, 1995, CMD sold substantially all of its operating assets and
technology and until May 1, 1997, did not have significant operating
results.
Effective April 30, 1997, CMD and OMNI International Rail Products, Inc.
(OMNI), completed an agreement and plan of merger which provided for the
merger of OMNI with and into a wholly-owned subsidiary of CMD
(collectively, the Company). Upon consummation of the merger, OMNI's name
changed to OMNI Products, Inc. Just prior to the closing of the merger,
OMNI completed a recapitalization in which the Board of Directors
authorized the conversion of:
* Series B preferred stock into Series A preferred stock (new Series A
preferred stock);
* 650,000 shares of new Series A preferred stock into 260,000 shares of
common stock;
* $188,812 in accrued dividends into 75,525 shares of common stock.
Also, at the closing of the merger, CMD completed a recapitalization in
which the Board of Directors authorized the conversion of 810,000 shares of
Series A preferred stock into 270,000 shares of Series B preferred stock.
Under the terms of the merger agreement, the shareholders and stock option
holders of OMNI exchanged all of their common stock and common stock
options for common stock and Series B preferred stock and common and
preferred stock options of the Company. OMNI's common stock and common
stock options were converted into CMD common stock and common stock options
at a ratio of 3.091 to 1.0. In addition, OMNI shareholders and stock option
4
<PAGE>
holders received 352,066 shares of Series B preferred stock and 187,934
options to purchase Series B preferred stock, respectively.
Upon the completion of the transaction, former OMNI security holders owned
approximately 67% of the total outstanding shares of the Company on a fully
diluted basis. The initial ownership ratio is subject to adjustment one
year after the closing of the transaction. The final ownership ratio will
reflect any adjustments resulting from differences between the assumed
value of CMD's net assets at the time of the merger and a final
determination to be made as of April 30, 1998. If the final ownership ratio
differs from the initial ownership ratio in favor of OMNI, OMNI's
shareholders will receive additional shares of CMD common and Series B
preferred stock as necessary to reflect the final ownership ratio thus
increasing the OMNI shareholder's relative ownership. If the final
ownership ratio differs from the initial ownership ratio in favor of CMD,
an amount up to 10% of the CMD common stock and Series B preferred stock
issued to an escrow for OMNI's shareholders will be canceled as necessary
to reflect the final ownership ratio, thus decreasing the relative
percentage ownership of OMNI's shareholders. In no case will this
adjustment result in OMNI's shareholders owning less than 64.3% of the
total outstanding shares.
The transaction between CMD and OMNI is considered a reverse acquisition
for financial reporting purposes and has been accounted for under the
purchase method of accounting. As a result, for financial statement
purposes, i) the historical values of OMNI's net assets have been retained;
ii) the net assets of CMD immediately prior to the merger have been
recorded at their fair value on the date of the transaction, iii) the
results of the operations of CMD are included in the results of the Company
beginning on the effective date of the transaction, iv) the dollar balance
of OMNI's accumulated deficit has been retained, and the balance of OMNI's
common stock and additional paid-in capital have been reallocated to be
consistent with the ratio of CMD's preferred and common stock. Assets
acquired consisted of investment securities and a building, while
liabilities assumed consisted of the mortgage associated with the building
acquired. The fair value of assets acquired exceeded the fair value of
liabilities assumed by approximately $1,025,000; such excess was attributed
to the shares issued in the merger. OMNI's costs associated with the
transaction, totaling approximately $185,000, were also attributed to the
shares issued in the merger.
(3) DEBT
On September 19, 1997 the Company executed an agreement with Finova Capital
Corporation (Finova) regarding a term loan payable and a capital
expenditure loan payable. The prinicpal balances outstanding on the two
loans as of July 31, 1997 were $1,083,982 and $600,090. Under the terms of
the agreement, the maturity date for both loans is extended to August 31,
1999. Accordingly, the Company has classified the non-current portion of
these two loans of $956,573 as long-term debt, less current portion, in the
July 31, 1997 balance sheet.
(4) PUT AGREEMENT
The Company has a stock put agreement with four individuals, three of whom
are board members. Under the agreement, holders of the put could require
the Company to purchase 111,741 shares valued at $134,285 in June 1997. In
June 1997, the Company repurchased 23,774 shares at a value of $28,571. The
Company is required under the stock put agreement to repurchase 87,967
shares at a value of $120,962 on October 3, 1997.
5
<PAGE>
(5) LEGAL SETTLEMENT
On July 24, 1997, the Company entered into a settlement agreement arising
from disputed royalty payments. The terms of the settlement agreement
required the Company pay $50,000 within sixty days of the agreement date
and $20,000 per quarter for five years thereafter. Management has reserved
the discounted present value of the settlement.
(6) SALE - LEASEBACK
On May 21, 1997, under a sale and leaseback agreement, the Company sold its
manufacturing facility in Portland, Oregon for $560,000 and leased it back
under a five-year lease agreement. The transaction produced a gain of
approximately $83,000 which will be deferred and amortized ratably over the
life of the lease. A portion of the proceeds from the sale were used to
retire $423,773 in debt and accrued interest.
(7) NET (LOSS) EARNINGS PER SHARE
Net (loss) earnings per share is computed using the weighted average number
of common and dilutive common equivalent shares assumed to be outstanding
during the period (using the treasury stock method for dilutive common
equivalent shares). Common equivalent shares consist of convertible
preferred stock, options and warrants to purchase common stock, which have
been excluded from the computation of primary net (loss) earnings per share
due to their anti-dilutive effect.
6
<PAGE>
Item 2 Management's Discussion and Analysis of Financial Condition and
Results of Operations
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Background
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Creative Medical Development, Inc. (the "Company") was incorporated in the
state of California on July 20, 1992 and reincorporated in the state of
Delaware on June 1, 1993. The Company designed, developed, manufactured and
marketed ambulatory infusion therapy products under the "EZ Flow" trade
name.
On September 13, 1995, the Company entered into an Asset Purchase Agreement
with Gish Biomedical, Inc. ("Gish") for sale of the EZ Flow Pump technology
and product line. Under its terms, substantially all of the Company's
manufacturing related assets (with a net book value of $680,957) were sold
for $600,000 cash and $2,000,000 of Gish Stock (240,240 shares). Pursuant
to the terms of the agreement, operation of the EZ Flow business was
transferred to Gish as of September 13, 1995 and the sale closed April 17,
1996.
On April 17, 1997, the Company entered into an agreement for merger and
reorganization with OMNI International Rail Products, Inc., ("OMNI") a
privately held company in the business of manufacturing and distributing
premium rail crossing surface products in the United States and
internationally. The agreement provided for the merger of OMNI with a
wholly owned subsidiary of the Company formed for the purposes of the
transaction. Subject to certain adjustments, the Company was valued at
$2,000,000 and OMNI was valued at $4,000,000.
OMNI was an Oregon corporation formed in 1994 to acquire the OMNI premium
crossing business from Reidel Environmental Technologies, Inc. That
business was operated by OMNI until the merger with the Company and its
operations continue under the Company's wholly owned subsidiary corporation
OMNI Products, Inc. At the time of the merger, the OMNI executive officers
became the executive officers of the Company and the subsidiary and all but
one of the OMNI directors became the directors of the Company and the
subsidiary.
The Company's transaction with OMNI closed April 30, 1997. Subsequently,
the Company changed its fiscal year to April 30, 1997 consistent with
OMNI's fiscal year to facilitate accounting and reporting financial
results.
Results of Operations
---------------------
The following Selected Financial Data for the periods ended July 31, 1997
and 1996 have been derived from the unaudited financial statements of the
Company. This Selected Financial Data should be read in conjunction with,
and is qualified in its entirety by reference to, the financial statements
and related notes thereto included elsewhere in this Report.
Except for the historical information contained herein, the matters set
forth in this Report include forward-looking statements within the meaning
of the "safe harbor" provisions of the Private Securities Litigation Reform
Act of 1995. These forward-looking statments are subject to risks and
uncertainties that may cause actual results to differ materially. These
risks and uncertainties are detailed throughout this Report and are
discussed from time to time in the Company's periodic reports filed with
the Securities and Exchange Commission. The forward-looking statements
included in this Report speak only as of the date hereof.
7
<PAGE>
The Company, on April 30, 1997, completed an agreement and plan of merger
with OMNI International Rail Products, Inc. (OMNI). For financial reporting
purposes, the transaction is considered a reverse acquisition and has been
accounted for under the purchase method of accounting. Thus, the operating
results presented and discussed herein reflect only the activity of OMNI.
Results of Operations--Quarter ended July 31, 1997
Compared with the Quarter ended July 31, 1996
As of and for the Quarters Ended
July 31
----------------------------------------
(In thousands except per share data)
1997 1996
------- ------
Revenue 3826 3813
Gross Profit 25.8% 27.4%
Earnings from Operations 6.7% 8.7%
Net earnings 1.5% 2.2%
Net earnings per share $0.01 $0.01
REVENUE
The Company derives its revenues from the sale of premium-grade rail crossings
to railroads, general contractors and municipalities. Revenues for the quarter
ended July 31, 1997 were $3,826,383 as compared to $3,813,037 for the quarter
ended July 31, 1996 representing an increase of 0.3%.
COST OF SALES
Cost of sales increased from $2,768,962 in the quarter ended July 31, 1996 to
$2,837,363 in the quarter ended July 31, 1997. As a percentage of sales, cost of
sales increased from 72.7% to 74.2%. This increase was due largely to the fact
that production of certain products are temporarily being out-sourced, resulting
in a higher unit manufacturing cost.
SELLING EXPENSES
Selling expenses for the quarter ended July 31, 1997 were $335,801 compared to
$336,223 for the quarter ended July 31, 1996.
GENERAL AND ADMINISTRATIVE EXPENSES
General and administrative expenses for the quarter ended July 31, 1997
increased to $393,870 which was a 7% increase over the quarter ended July 31,
1996. General and administrative expenses for the quarter ended July 31, 1997
included the cost of a Chief Financial Officer and a Customer Service
Specialist, as well as substantial costs for accounting and other outside
services.
INTEREST EXPENSE
Interest expense in the quarter ended July 31, 1997 was $167,529 as compared to
$177,126 in the quarter ended July 31, 1996. The decrease reflects the Company's
continuing amortization of long-term debt.
8
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
At July 31, 1997 the Company had a net overdraft in its cash account of $4,960.
Cash generated from operations during the quarter was $146,722.
Net working capital at July 31, 1997 amounted to ($506,737) because current debt
maturities and other short-term commitments exceeded the Company's liquid assets
available to pay such obligations.
On July 30, 1997 the Company entered into a letter of intent for an equity
investment and the Company's acquisition of certain assets in exchange for
common stock of the Company. If that transaction closes as planned, management
believes that it will provide adequate capital to fund the Company's working
capital and capital expenditure needs. Otherwise, depending upon the Company's
results of operations, its future capital needs and available marketing
opportunities, the Company may use various financing sources to raise equity
capital. Such sources could include mergers or private equity placements. There
can be no assurance that the proposed transaction covered by the letter of
intent will close or that such funds will be available on a favorable basis, if
at all. In the event that the Company is unable to obtain such additional equity
capital, its operations may be significantly reduced.
The Company's capital expenditures during the quarter ended July 31, 1997 were
$186,807. Expenditures were incurred primarily for equipment to expand
production capacity.
The Company's stock is traded on the OTC Electronic Bulletin Board.
OTHER INFORMATION - PART II
Item 1. Legal Proceedings
Not applicable.
Item 2. Changes in Securities
Not applicable
Item 3. Defaults on Senior Securities
Not applicable
Item 4. Submission of Matters to a Vote of Security Holders
Not applicable
Item 5. Other Information
Not applicable
9
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
- ----------------------------------------
(a) Exhibits
--------
27.05 Financial Data Schedule July 31, 1997.
10.09 Lease of Portland facility pursuant to sale and leaseback
agreement.
(b) Reports on Form 8-K
-------------------
A report on Form 8-K was filed May 3, 1997, covering the merger
transaction with Omni.
A report on Form 8-K was filed July 30, 1997, covering the Company's
change of accountant's and change of fiscal year end, as well as the
financial information related to the merger transaction with Omni.
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
Creative Medical Development, Inc.
- ----------------------------------
Registrant
September 19, 1997 /s/ Michael L. DeBonny
- ------------------ --------------------------------------
Date Michael L. DeBonny
Chief Executive Officer
September 19 , 1997 /s/ Jeff Edwards
- ------------------- --------------------------------------
Date Jeff Edwards
CFO
10
LEASE
THIS LEASE is dated as of May 21, 1997, and is by and between AG
PROPERTIES, LLC an Oregon limited liability company ("Landlord") and OMNI
PRODUCTS, INC. an Oregon corporation ("Tenant").
RECITALS
Landlord is the owner of that certain parcel of real property (the "Real
Property") located at 2320 and 2330 N. E. Columbia Boulevard, City of Portland,
County of Multnomah, State of Oregon, 97211 also known as assessor's parcel
number R94114- 0950, map 2332. The Real Property is more particularly described
on Exhibit A attached hereto and incorporated herein.
The Real Property is improved with two industrial buildings, one a tilt-up
concrete warehouse constructed in 1982 containing approximately 10,800 square
feet (including approximately 1200 square feet of finished office space) and the
other a metal-clad butler building constructed in 1949 containing approximately
5000 square feet ("Buildings"). The Buildings contain two cranes more
particularly described on Exhibit B attached hereto and incorporated herein and
electrical service panels which are part of the Buildings. Tenant has been the
owner and sole occupant of the Buildings for approximately ten years prior to
the conveyance of the Real Property to the Landlord coincidentally with the date
of this Lease.
Tenant desires to lease from Landlord and Landlord desires to lease to
Tenant the Real Property, the Buildings and any other improvements now or
hereafter located on the Real Property.
ARTICLE 1 - PREMISES; TERM
Section 1.01. Premises. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, for the term and subject to the agreements, conditions and
provisions hereinafter set forth, to each and all of which Landlord and Tenant
hereby mutually agree, the Real Property, the Buildings and any other
improvements now or hereafter located on the Real Property (collectively, the
"Premises").
Section 1.02. Lease Term . The term of this Lease (the "Lease Term ") shall
commence on May 21, 1997 (the "Commencement Date") and, unless sooner terminated
or extended as hereinafter provided, shall expire on May 20, 2002.
Lease - 1
<PAGE>
Section 1.03. Renewal Term. Provided that Tenant is not in default, Tenant
shall have the option to renew this Lease for one successive term of five (5)
years on the following terms and conditions:
(a) The option granted to Tenant in this Lease is personal to the
original Tenant and cannot be voluntarily or involuntarily assigned or
exercised by any person or entity other than the original Tenant while the
original Tenant is in full and actual possession of the Premises and
without the intention of thereafter assigning or subletting. The option
granted to Tenant is not assignable, either as a part of an assignment of
this Lease or separately or apart therefrom and no option may be separated
from this Lease in any manner by reservation or otherwise except as
permitted under the provisions of Section 16.1;
(b) The Renewal Term shall commence on May 21, 2002 and unless sooner
terminated as hereinafter provided shall expire on May 21, 2007; and
(c) The option may be exercised by notice from Tenant to Landlord
given not earlier than November 1, 2001. Tenant may give such notice
thereafter during the Lease Term unless Landlord gives Tenant notice before
November 1, 2001 that Tenant's notice of its exercise of the option must be
given between November 1, 2001 and December 31, 2001, whereupon Tenant's
notice under this Section 1.03(c) may be given only during such period.
The giving of such notice shall be sufficient to make this Lease binding
for the Renewal Term and Landlord and Tenant shall be bound to take steps
required in connection with the determination of rent.
The terms and conditions of this Lease for the Renewal Term shall be
identical with the Lease Term except for rent. Rent for the Renewal Term shall
be the greater of the rent during the Lease Term and the fair market rent for
the Renewal Term. If Landlord and Tenant do not agree upon rent by March 1,
2002, the rent shall be determined as follows: By March 15, 2002, Landlord and
Tenant shall retain one qualified independent real property appraiser familiar
with commercial rental values in the area of the Premises. If the parties do not
retain an appraiser by March 15, 2002, then Landlord and Tenant shall each
choose an independent, qualified real property appraiser familiar with
commercial rental values in the area of the Premises. If the parties jointly
select an appraiser, the value determined by that appraiser shall be the fair
market rent for the Renewal Term. In the event two appraisers are utilized, the
fair market rent for the Renewal Term shall be the average of the determinations
by the two appraisers, unless the difference between the two appraisers is
greater than 10%. In such an event, a third appraiser shall be selected by the
two appraisers. The two closest appraisals of the three appraisals shall be
averaged and that amount shall be the fair market rent for the Renewal Term. If
one appraiser is jointly selected, the appraisal costs shall be shared equally
Lease - 2
<PAGE>
by Landlord and Tenant. If two appraisers or three appraisers are utilized,
Landlord and Tenant shall pay the costs of the appraiser they selected, and the
cost of the third appraiser shall be paid by the party whose appraiser's value
was not averaged. If the parties do not jointly retain a single appraiser by
March 15, 2002 and thereafter Landlord or Tenant shall fail to name an appraiser
by March 25, 2002, the fair market rent for the Renewal Term shall be determined
by the appraiser who has been selected. An appraiser shall be directed to
determine the fair market rent for the Renewal Term within 30 days after
appointment and the decision of the single appraiser or the average of the two
appraisers, as the case may be, shall be final and binding upon both parties.
ARTICLE 2 - CONDITION OF THE PREMISES AND SIGNAGE
Section 2.01. Condition. Tenant hereby accepts possession of the Premises
in an "as is" condition, subject to Section 2.02. Tenant acknowledges that
Landlord makes no warranty as to the condition of the Premises or its
suitability for any particular use.
Section 2.02. Change of Condition. In connection with the sale of the
Premises by Tenant to Landlord, the parties have agreed that during the Lease
Term certain repairs and improvements will be made in accordance with an
"Abbreviated Form of Agreement Between Owner and Contractor" wherein JMC
Construction, Inc. is the Contractor and Landlord is the Owner, a copy of which
is marked Exhibit C attached hereto and incorporated herein ("Construction
Contract"). The damages to be repaired are those identified in Grubb & Ellis'
Property Condition Report dated February 12, 1997, together with any other
damage discovered during the making of repairs. The repairs ("Repairs") are
those set forth on page 2 of Attachment A of the Construction Contract together
with any additional repairs required by law, rule, regulation or ordinance. The
improvements ("Improvements") are those set forth on page 1 of Attachment A of
the Construction Contract. Landlord covenants to cause the Repairs and
Improvements to be timely performed or constructed in accordance with the
Construction Contract, as it may be amended or replaced as provided in this
Section. No change orders or other modifications to the Construction Contract
shall be made without the prior written consent of Tenant. Landlord and its
agent shall keep Tenant informed of, and consult with Tenant on all matters
related to the Repairs and Improvements. If Tenant, in good faith and with
sufficient cause under Section 20.02 of the Construction Contract, becomes
unsatisfied with the performance of the Contractor, Tenant may send a written
request to terminate Contractor to Landlord, with a copy to Jim Edwards. If
Tenant and contractor are unable to resolve their differences within ten (10)
days of such notice, Landlord will terminate the Construction Contract in
accordance with its terms and promptly thereafter enter into a new construction
contract with a contractor reasonably mutually acceptable to Landlord and
Tenant.
Section 2.03. Signage. All signs shall be installed by Tenant, at Tenant's
expense, in accordance with applicable sign codes. All signs installed after the
execution of this Lease shall be done without permanent damage to the Buildings.
Lease - 3
<PAGE>
ARTICLE 3 - RENT AND SECURITY DEPOSIT
Section 3.01. Rent Commencement Date. The rental payments under this Lease
shall begin to accrue (the "Rent Commencement Date") on the Commencement Date.
Section 3.02. Basic Rent. For the Lease Term Tenant shall pay to Landlord,
without deduction or setoff of any kind, the sum of FIVE THOUSAND EIGHTY THREE
AND 33/100 DOLLARS ($5,083.33) per month as the Basic Rental for the Premises,
in advance, on the first day of each and every month during the Lease Term,
commencing on the Rent Commencement Date and ending on the expiration or earlier
termination of the Lease Term. If the Rent Commencement Date is a day other than
the first day of a month, then the first monthly installment of Basic Rental for
the period from the Rent Commencement Date until the first day of the month next
following shall be prorated.
Section 3.03. Additional Rent. As Additional Rental, Tenant shall pay to
Landlord, without deduction or set off of any kind, One Hundred Thousand Dollars
($100,000) amortized over the Lease Term at 10% per annum payable monthly in the
amount of $2,124.70 with the Basic Rental.
Section 3.04. Payment. All rent and other sums due Landlord hereunder shall
be mailed to:
AG Properties, LLC
c/o Giustina Land & Timber Co.
PO Box 989
Eugene, Oregon 97440
or to such other payee or address as Landlord may designate in writing to
Tenant. No rent or other sums due hereunder shall be deemed paid by Tenant until
actually received by Landlord. Tenant shall deposit all payments in the United
States mail, postage prepaid, a sufficient number of days prior to the due date
so as to ensure timely receipt of such payment by Landlord.
Section 3.05. Late Charges. All payments (including taxes) to Landlord from
Tenant which are not paid within 5 days of the due date shall bear a late charge
of 7.5% of the amount due. Further, Tenant shall be responsible for any
attorney's fees or related charges incurred by Landlord for collection of rent
or any obligation of this Lease that is not fulfilled by Tenant.
Section 3.06. Security Deposit. As partial consideration for the execution
of this Lease, the Tenant has paid the Landlord a Security Deposit of $10,000.
The deposit shall be held by Landlord, without obligation of Landlord for
interest, as security for performance of the Tenant's covenants and obligations
under this Lease; however, the parties agree that this Security Deposit is not
an advance rental deposit nor a measure of Landlord's damages in case of default
by Tenant. Landlord may, at its option, and without prejudice to any other right
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or remedy hereunder or at law or equity, use the deposit to the extent necessary
to make good any arrears of rent or other payment due Landlord under this Lease,
and any other damage, injury, expense or liability caused by an event of default
as defined in Article 15; and, Tenant shall pay to Landlord on demand the
amounts so applied in order to restore the Security Deposit to $10,000. At the
expiration or termination of the Lease Term or Renewal Term, Landlord shall
account for the Security Deposit, and , if Tenant is not in default under this
Lease, return the entire remaining balance of the Security Deposit to the
Tenant. Landlord may commingle the Security Deposit with Landlord's other funds.
Section 3.07 Additional Charges. This Lease is a net lease. The Landlord
shall receive the rent set forth in this Article 3 free and clear of any and all
impositions, taxes, real estate taxes, liens, charges or expenses of any nature
whatsoever in connection with the ownership and operation of the Premises. In
addition to the rent reserved by this Article, Tenant shall pay to the parties
entitled thereto all impositions, insurance premiums, operating charges, utility
and service charges, maintenance charges, construction costs, and any other
charges, costs and expenses which arise or may be contemplated under the
provisions of this Lease during the Lease term or Renewal term ("Additional
Charges"). Upon the failure of the Tenant to pay Additional Charges, Landlord
shall have the same rights and remedies as otherwise provided in this Lease for
the failure of the Tenant to pay rent.
ARTICLE 4 - TAXES
Section 4.01. Real Property Taxes. Tenant shall be liable for and shall pay
all taxes, levies, assessments and charges, general and special, and penalties
and interest thereon levied, assessed or imposed during the Lease Term or
Renewal Term against the Premises as modified from time to time. Tenant, as the
owner of the Premises prior to its sale to the Landlord, has previously paid
such taxes for the current fiscal year.
Section 4.02. Copy of Statement. Landlord shall promptly upon receipt
provide to Tenant copy of each annual real property tax statement showing all
land taxes, improvement taxes, levies, assessments and charges made against
Landlord or the Premises by the Multnomah County Assessor or other taxing
authority.
Section 4.03. Payment of Taxes. All taxes payable by Tenant accruing during
the Lease Term or Renewal Term shall be paid by Tenant to Landlord within
fifteen (15) days from the date the tax statement is provided to Tenant by
Landlord. Tenant shall only be responsible to pay taxes based on the discounted
amount as offered by the State of Oregon for payment in full of real property
taxes and shall not be liable for any late payment penalty due any taxing
authority. For the years in which this Lease commences and terminates, the
provisions of this Article shall apply, and Tenant's liability for taxes,
assessments and charges for any such year shall be subject to a pro rata
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adjustment based on the number of days of any such year during which this Lease
is in effect. Landlord's and Tenant's obligations under this Article 4 shall
survive the expiration of the Lease Term or Renewal Term.
Section 4.04. Taxes on Rent. If at any time during the Lease Term or
Renewal Term, under the laws of the State of Oregon or of any political
subdivision thereof or any agency having the power to levy taxes or assessments,
a tax or excise on rents, or other tax or assessment however described, is
levied or assessed by the State of Oregon, or by any such political subdivision
or agency against Landlord on account of the Basic and Additional Rental, or any
other rentals accruing under this Lease, or with respect to Landlord's
development of income by this Lease (but excluding any net income taxes), or by
reason of Landlord's ownership or operation of the Premises, as a substitute in
whole or in part, or any addition, to real property taxes on the Premises, or
any part thereof, or the land and/or the improvements described in this Article
4, then such tax, assessment or other levy or excise on rents shall, to the
extent of the amount thereof which is lawfully assessed or imposed upon Landlord
and which was so assessed or imposed as a result of Landlord's ownership of the
Premises, of this Lease, of the rentals accruing under this Lease or Landlord's
ownership of the land and/or improvements described or referred to in this
Article 4, be deemed to be a real property tax or assessment levied or assessed
against the Premises for the purposes of this Article 4. It is the intention of
the parties hereto that Landlord shall have no obligation for taxes and
assessments and all present taxes, assessments, levies and charges or
substitutions for or additions to present taxes, assessments, levies and charges
shall be paid by Tenant.
Section 4.05. Additional Contest of Taxes. Tenant shall have the right to
employ, at its sole cost, a property tax consultant and/or to contest any
assessment, tax or charge against the Premises or seek a reduction in the
assessed valuation of the Premises for the purpose of reducing any such tax
assessment. Landlord agrees to cooperate with Tenant in its contest of any
assessment, tax or charge; provided that any expense incurred by Landlord in
connection therewith shall be promptly reimbursed by Tenant. Under no
circumstances shall Tenant have the right to withhold any payments to Landlord
pursuant to this Article 4 or any other Article of this Lease. If Tenant pays an
amount in excess of the appropriate amount of taxes, assessments and charges for
any year as a result of a subsequent reduction in total taxes, assessments and
charges for such year, Landlord shall refund such excess to Tenant after receipt
by Landlord of all refunds from the taxing authority with respect to such year.
Section 4.06. Tenant's Taxes. Tenant shall pay before delinquency all
taxes, assessments, license fees and public charges levied, assessed or imposed
upon its business operation in the Premises or use or occupancy of the Premises
as well as upon its trade fixtures, tenant improvements, merchandise and other
personal property in, on or upon the Premises. No taxes, assessments, fees or
charges referred to in this paragraph shall be considered as land taxes or
improvement taxes under the provisions of this Article.
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ARTICLE 5 - USE
Section 5.01. General. The Premises shall be used for the manufacture of
rubber and concrete railroad crossings and for no other purpose without the
prior written consent of Landlord which shall not be unreasonably withheld
unless the proposed use creates additional environmental risks or risks to the
Premises.
Section 5.02. Obstructions, Nuisances, Etc. Tenant shall not: (a) do, or
permit to be done, anything in or about the Premises which will create a safety
hazard or which will in any way injure the reputation of the Premises; (b)
cause, maintain or permit any nuisance in, on or about the Premises including
the escape from the Premises of any objectionable noise, fluid or odor; (c)
commit, or suffer the commission of, any waste in, on or about the Premises; (d)
use the Premises for any objectionable or immoral purposes; or (e) keep or use
or permit to be kept or used on the Premises any inflammable fluids or
explosives or toxic or hazardous materials in violation of any environmental
law.
Section 5.03. Compliance With Law. Tenant shall not use the Premises, or
permit anything to be done in or about the Premises, which will in any way
conflict with any governmental law, ordinance, rule, regulation or requirement
affecting the Premises, whether now in force or hereafter enacted or
promulgated. Tenant shall, at its sole cost and expense, promptly comply with
all such laws, ordinances, rules, regulations and requirements now or hereafter
in force, including but not limited to the Americans with Disabilities Act and
the Clean Air Act and with the requirements of any board of fire underwriters or
other similar body now or hereafter constituted, relating to or affecting the
condition, use or occupancy of the Premises. The judgment of any court of
competent jurisdiction, or the admission of Tenant in an action against Tenant
(whether Landlord be a party thereto or not), that Tenant has violated any such
law, ordinance, rule, regulation or requirement shall be conclusive of such
violation, as between Landlord and Tenant.
Section 5.04. Activities Affecting Insurance Rates. Tenant shall refrain
from any activity which would make it impossible to insure the Premises against
casualty. Tenant shall provide fire extinguishers in accordance with reasonable
instructions from Landlord's property casualty insurance carrier, or in
accordance with applicable building codes.
Section 5.05. Structural Integrity. Tenant shall refrain from loading the
floors in the Buildings or otherwise use the Buildings in a manner considered
unsafe by a competent engineer or architect selected by Landlord.
ARTICLE 6 - SERVICES AND UTILITIES
Section 6.01. Services and Utilities. Tenant shall make all arrangements
for, and shall pay all charges, surcharges, license or permit fees, liens,
assessments, installation or other expense for water, gas, heat, electricity,
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telephone service, garbage, sewer service charged or attributable to the
Premises, and all other services or utilities used in, upon or about the
Premises by Tenant during the Lease Term or Renewal Term, and the cost of
connecting, metering, and maintaining the services and utilities.
Section 6.02. Interruptions in Services. Landlord shall not be in default
hereunder, or be liable for any damages directly or indirectly resulting from,
nor shall any amounts due hereunder be abated by reason of: (a) the
installation, use or interruption of use of any equipment in connection with the
furnishing of any of the services described in Section 6.01 above; (b) the
failure to furnish, or a delay in furnishing, any such services; or (c) the
limitation, curtailment, rationing or restriction on use of water, electricity,
gas or any other form of energy or any other service or utility whatsoever
serving the Premises. If any governmental entity promulgates or revises any
statute, ordinance or building, fire or other code, or imposes mandatory or
voluntary controls or guidelines on Landlord or the Premises or any part
thereof, relating to the use or conservation of energy, water, light or
electricity or the provision of any other utility or service provided with
respect to this Lease, or if Landlord is required or elects to make alterations
to the Premises in order to comply with such mandatory or voluntary controls or
guidelines, Landlord may, in its sole discretion, comply with such mandatory or
voluntary controls or guidelines, or make such alterations to the Premises. Such
compliance activities or alterations shall be performed at mutually agreeable
times, and in a manner that will minimize interference with Tenant's business
operations. Tenant agrees to cooperate in good faith to accomplish that end.
ARTICLE 7 - ALTERATIONS
Section 7.01. General Conditions. Tenant shall make no alterations to any
structural or mechanical portions of the Buildings without Landlord's prior
written consent and Tenant shall make no other alterations to the Premises,
other than cosmetic alterations to the interior of the Buildings, without
Landlord's prior written consent, which consent shall not be unreasonably
withheld or delayed. All alterations done by the Tenant or done by the Landlord
on behalf of Tenant, which includes any changes or modifications to the
electrical system and fixtures of whatever type and kind (except movable trade
fixtures) shall become and remain part of the Premises and the property of the
Landlord upon installation. In seeking Landlord's consent for, and in making,
any alteration to the Premises requiring Landlord's consent, Tenant shall comply
with the following:
(a) Tenant shall submit to Landlord not less than fifteen (15) days
before the date on which it plans to commence the alteration, reasonably
detailed plans and specifications for the proposed alteration and the name
of its contractor. Landlord shall, within fifteen (15) days after receipt
of such plans and specifications, either consent to such alteration or
provide Tenant with a reasonably detailed explanation of why it will not
consent to such alteration. Failure by Landlord to respond within such
fifteen (15) day period shall be deemed approval by Landlord of the making
of such alteration in accordance with such plans and specifications
submitted to Landlord.
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(b) The alteration shall not be commenced until five (5) days after
Landlord has received notice from Tenant stating the date on which
construction of the alteration is to commence, so that Landlord can post
and record an appropriate notice of non-responsibility (if Landlord deems
that to be necessary).
(c) The alteration shall be approved by all appropriate government
authorities, and all applicable permits and authorizations shall be
obtained, and copies thereof (if requested by Landlord) shall be supplied
to Landlord, all before commencement of the alteration.
(d) The alteration shall be completed in a good and workmanlike
manner, with due diligence, in compliance with the plans and specifications
therefor submitted to and approved by Landlord and in compliance with all
applicable governmental laws, ordinances, rules, regulations and
requirements.
(e) Before commencing the alteration, and at all times during
construction thereof, Tenant's contractor shall maintain public liability
and property damage insurance, and fire and extended coverage insurance, in
amounts, and with insurance companies, all reasonably acceptable to
Landlord.
(f) Tenant shall indemnify Landlord against any and all loss, cost,
damage, injury and expense including, without limitation, actual expenses
incurred by Landlord and all reasonable attorneys' fees and court costs
incurred if an action is filed arising out of or in any way related to
claims for work or labor performed, or materials or supplies furnished, to
or at the request of Tenant or in connection with performance of any work
done for the account of Tenant in the Premises, whether or not Tenant
obtained Landlord's permission to have such work done, labor performed or
materials or supplies furnished.
(g) All of the provisions of this Section 7.01 and Section 7.02 shall
apply to Tenant's work.
Notwithstanding the foregoing, Tenant may install or erect such partitions,
shelves, bins, machinery, and trade fixtures as may be necessary or appropriate
for any permitted uses; provided, however, that such installation or erection
shall not alter the basic character of the Premises or otherwise damage the
Premises.
Section 7.02. Costs and Liens. Tenant shall pay all costs for construction
on the Premises performed by it, or on its behalf, and Tenant shall keep the
Premises free and clear of all construction and other liens resulting from
construction done by or on behalf of Tenant. Tenant shall have the right to
contest the correctness or the validity of any such lien if, immediately
following demand therefor by Landlord, Tenant procures and records a lien
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release bond, issued by a corporation authorized to issue surety bonds in
Oregon, in an amount equal to one and one-half (1-1/2) times the amount of the
claim of lien, and provides for the payment of any sum that the claimant may
recover on the claim (including, without limitation, costs of suit, if the
claimant should recover those in the action).
Section 7.03. Improvements. Concurrently with the execution of this Lease,
Landlord has deposited $100,000 (the "Improvement Fund") in an escrow account
under a separate agreement among Landlord, Tenant, and TICOR Title Insurance
Company, 1000 SW Broadway, Suite 1555, Portland, OR 97205 ("Escrow Agent") for
payment of the Improvements, one-half of the fees for the administration of the
escrow account and for the administration of the Construction Contract for the
Improvements. Landlord shall pay the other one-half of the fees for the
administration of the escrow account. The Landlord shall retain Jim Edwards to
supervise and administer the construction of the Improvements for a fee equal to
5% of the actual amounts paid to JMC Construction, Inc. under the Construction
Contract. Any amount in the Improvement Fund not expended on the Improvements
and for fees shall be disbursed to the Tenant upon issuance of appropriate lien
releases by JMC Construction, Inc., its subcontractors, and Jim Edwards. Any
cost of the Improvements in excess of the Improvement Fund shall be paid by the
Tenant to the Escrow Agent before payment is due Contractor for the excess cost.
Tenant shall repay Landlord the Improvement Fund as Additional Rent under
Section 3.03 hereof. The Improvements shall become part of the Premises and the
property of Landlord as completed and installed.
ARTICLE 8 - REPAIRS AND MAINTENANCE
Section 8.01. Landlord Obligations. Except Landlord's obligations under
Section 8.04, Landlord shall have no duty to make repairs or perform maintenance
during the Lease Term or Renewal Term.
Section 8.02. Tenant's Obligations. Tenant shall, at its expense, keep all
parts of the Premises, including the improvements, landscaping, walkways in good
order and repair, and in a clean, sanitary and safe condition. Tenant's
obligations shall include, but not be limited to, the following:
(a) Structural repairs and maintenance, and repairs necessitated by
acts of the Tenant or by any person who may be on the Premises.
(b) Repair and cleaning of sidewalks, driveways, service areas, curbs
and parking areas.
(c) Repair and maintenance of the exterior walls; roof repair and
maintenance; repair and maintenance of all exterior services including
water, sewage, gas and electrical to the street curb; cleaning of gutters
and down spouts on a timely basis so as to prevent water damage to the
Buildings or their contents.
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(d) Repair and maintenance of the interior of the Buildings, including
all windows, walls, ceiling, doors, floors and floor covering, plumbing and
lighting fixtures, in good condition.
(e) Repair of the heating, ventilating and air conditioning system,
and their ordinary maintenance.
(f) Replacement of all broken glass.
(g) All repairs and restoration made necessary by fire or other peril
which could be covered by an all risk fire insurance policy or by reason of
war, or by earthquake or other natural casualty.
(h) Remedial action or cleanup pertaining to or involving any
hazardous substance.
(i) Maintenance of pressure vessels and automatic fire extinguishing
systems (including fire alarm and//or smoke detection).
(j) Repair or maintenance for compliance with all laws, rules,
regulations and ordinances governing the Premises and Tenant's use thereof.
A Tenant shall be obligated to repair regardless of whether the need for
such repair occurs as a result of the Tenant's use of the Premises, the prior
use of the Premises, the elements, or the age of the Buildings or Improvements.
Section 8.03. Reimbursement for Repairs Assumed. If Tenant fails or refuses
to make repairs which are required to be made by Tenant under the terms of this
Lease, Landlord may make such repairs and charge the actual costs of repairs to
the Tenant. Expenditures by Landlord, for the account of Tenant, shall be
reimbursed by Tenant upon demand, together with interest at the rate of ten
percent (10%) per annum from the date of expenditure by Landlord to the date of
payment by Tenant.
Section 8.04. Agreed Repairs. Concurrently with the execution of this
Lease, Tenant has deposited $113,690 (the "Repair Fund") in the escrow account
provided in Section 7.03 for payment of the Repairs, one-half of the fees for
the administration of the escrow account, and for the administration of the
Construction Contract for the Repairs. Landlord shall pay the other one-half of
the fees for the administration of the escrow account. The Landlord shall retain
Jim Edwards to supervise and administer the construction of the Repairs for a
fee equal to 5% of the actual amounts paid to JMC Construction, Inc. under the
Construction Contract for the Repairs. Any amount in the Repair Fund not
expended on the Repairs and for fees shall be disbursed to the Tenant upon
issuance of appropriate lien releases by JMC Construction, Inc., its
subcontractors, and Jim Edwards. Any cost of the Repairs in excess of the Repair
Fund shall be paid by the Tenant in accordance with Section 8.03
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ARTICLE 9 - PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE
Section 9.01. General. Tenant, at its sole cost, shall maintain
comprehensive public liability insurance, with a minimum combined single limit
of bodily injury, personal injury and property damage coverage of ONE MILLION
DOLLARS ($1,000,000), insuring against all liability of Tenant and its
employees, agents and invitees arising out of or in connection with the use or
occupancy of the Premises. All such public liability and property damage
insurance shall, to the fullest extent possible, explicitly insure performance
by Tenant of the indemnity provisions of Article 12 of this Lease. Landlord
shall be named as additional insured and the policy shall contain
cross-liability endorsements. Upon request by Landlord, Tenant shall add, as
additional insureds, any lender designated by Landlord. Such policy shall
provide that it is primary insurance and not "excess over" or contributory with
any other valid, existing and applicable insurance in force for or on behalf of
Landlord.
Landlord may from time to time reasonably require that the minimum amount
of comprehensive public liability insurance be increased so that the amount
reasonably protects Landlord's and Tenant's interests.
Section 9.02. Worker Compensation. Tenant shall, at its sole cost, maintain
worker's compensation coverage from the State Accident Insurance Fund or from a
responsible private carrier covering all employees of Tenant unless Tenant is
certified as a self-insured employer pursuant to ORS 656.403, et seq. Private
insurance shall provide the schedule of employee benefits required by law and
shall provide employer's liability coverage with limits as required by law.
ARTICLE 10 - FIRE AND CASUALTY INSURANCE
Section 10.01. Tenants Personal Property and Trade Fixtures. Tenant, at its
sole cost, shall maintain on all its personal property (including pressure
vessels) and trade fixtures in, on or about the Premises, a policy of standard
fire and extended coverage insurance, with vandalism and malicious mischief
endorsements.
Section 10.02. Improvements. A policy of "All Risk" fire and extended
coverage insurance, with vandalism and malicious mischief endorsements, to the
full replacement value, (but in no event more than a commercially reasonable and
available insurance value thereof if, by reason of the unique nature or age of
the improvements involved, such latter amount is less than the full replacement
value) shall be maintained by Landlord on the Buildings and other improvements
that are a part of the Premises. Such policy shall not cover the personal
property or trade fixtures of Tenant, but shall cover alterations, improvements
and non-trade fixtures within the Buildings. This insurance shall be for the
sole benefit of Landlord and under its sole control. Tenant shall reimburse
Landlord for Landlord's cost of maintaining such insurance within 15 days from
the date the premium statement is provided to Tenant by Landlord.
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Section 10.03. Releases and Waivers of Subrogation. Anything to the
contrary in this Lease notwithstanding, the parties hereby release each other,
and their respective members, officers, directors, employees, agents, and
invitees, and any other entity designated by either party hereto, from any
claims for injury or damage to any person, to the Premises or to the fixtures,
personal property, tenant improvements or alterations of either Landlord or
Tenant in or on the Premises that are caused by, or result from, risks insured
against under any of the insurance policies carried by the parties which are in
force at the time of any such damage. Each party shall use its best efforts to
cause each insurance policy obtained by it to provide that the insurance company
waives all right of recovery by way of subrogation against either party in
connection with any damage covered by any policy. Neither party shall be liable
to the other for any damage or injury to the Premises, to any persons, or to any
other property which is caused by fire or by any of the other risks insured
against under any insurance policy required by this Lease to the extent of
insurance proceeds received.
Section 10.04. Mortgage Restrictions. Notwithstanding anything herein to
the contrary in the event the holder of any indebtedness secured by a mortgage
or deed of trust covering the Premises restricts or prohibits the use as
contemplated hereunder, of the proceeds of any insurance covering the Buildings,
then the Landlord shall have the right to terminate this Lease within fifteen
(15) days after such restrictions or prohibition is enforced by any such holder
whereupon all rights and obligations hereunder shall cease and terminate.
ARTICLE 11 - OTHER INSURANCE MATTERS
Section 11.01. General. Any provision herein to the contrary
notwithstanding, each insurance policy required of Tenant under this Lease
shall:
(a) Be issued by an insurance company authorized to do business in the
State of Oregon.
(b) Be issued as a primary policy, or be part of a blanket policy if
the blanket policy specifically provides that the amount of insurance
required by this Lease shall be in no way prejudiced by other losses
covered by the policy.
(c) Contain an endorsement requiring thirty (30) days' written notice
from the insurance company to both parties before cancellation of, or
change in the coverage, scope or amount of, the policy.
A certificate of each policy required of Tenant under this Lease, together with
evidence of payment of premiums, shall be deposited with Landlord before the
Commencement Date and, not less than twenty (20) days before expiration of the
term of the policy, a renewal or replacement policy, or a certificate of the
existence thereof or binder therefor, shall be deposited with Landlord.
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ARTICLE 12 - INDEMNIFICATION
Section 12.01. Indemnification. To the fullest extent permitted by law,
Tenant will indemnify and hold harmless Landlord, its members, agents,
employees, and mortgagees from and against any and all claims arising from or in
connection with
(a) the conduct or management of the Premises or of any business
therein, or any work or thing whatsoever done, or any condition created,
(even if due to Landlord's negligence or breach of this Lease, to the
extent insurable hereunder), in or about the Premises during the Lease Term
or Renewal Term;
(b) any act, omission or negligence of Tenant or any of its directors,
officers, agents, employees, invitees or contractors;
(c) any accident, injury or damage whatever (even if caused by
Landlord's negligence, to the extent insurable hereunder) occurring in, at
or upon the Premises; and
(d) any breach or default by Tenant in the full and prompt payment and
performance of Tenant's obligations under this Lease; together will all
costs, expenses and liabilities incurred or in connection with each such
claim or action or proceeding brought thereon, including, without
limitation, all attorneys fees and expenses.
In case any action or proceeding is brought against Landlord and/or any
mortgagee and/or Landlord's members, agents, or employees and such claim is a
claim from which Tenant is obligated to indemnify Landlord pursuant to this
Article 12, Tenant upon notice from Landlord shall resist and defend such action
or proceeding (by counsel reasonably satisfactory to Landlord).
The provisions of this Article 12 shall survive the expiration or
termination of this Lease.
ARTICLE 13 - DESTRUCTION OR DAMAGE
Section 13.01. General. Tenant shall notify Landlord in writing immediately
upon the occurrence of any damage to the Premises. As used herein with respect
to the Premises, the term "partial damage" shall mean damage or destruction
which does not result in the loss of either: (a) thirty percent (30%) or more of
the total number of rentable square feet in the Premises; or (b) thirty percent
(30%) or more of the value of the Premises.
Section 13.02. Partial Damage to Premises. If the Premises are partially
damaged, then this Lease shall remain in effect, and Landlord shall repair the
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damage as soon as reasonably possible; provided, however, that if the insurance
proceeds are not sufficient to pay the entire cost of repair, or if the cause of
the damage is not covered by insurance policies and Landlord fails to repair the
damage as soon as reasonably possible, then either party may elect to terminate
this Lease, as of the date the damage occurred, by notifying the other party
within thirty (30) days after the occurrence of such damage. In any event, if
the damage was due to a negligent act or omission of Tenant, Tenant shall pay
Landlord the difference between the cost of repair plus the cost of compliance
with applicable building codes and regulations and any insurance proceeds
received by Landlord (whether or not the Premises are in fact repaired). All
proceeds of insurance shall in any event be payable and paid to Landlord. If
Tenant makes required repairs, Landlord shall pay over to Tenant insurance
proceeds up to, but not exceeding, the actual cost of repairs within ten days of
Tenant completing the repairs (if proceeds have already been received by
Landlord) or within three days of receipt of proceeds by Landlord, if received
thereafter.
Section 13.03. Substantial Damage to Premises. If the Premises are
substantially damaged, then Landlord or Tenant may terminate this Lease, as of
the date the damage occurred, whether or not Landlord receives any insurance
proceeds from the insurance policies maintained by Landlord with respect to such
damage, by notifying the other party of such termination within thirty (30) days
after the occurrence of such damage. If neither party terminates this Lease,
Landlord shall repair all such damage, and this Lease shall remain in full force
and effect. If the damage was caused by Tenant, then, in any event, Tenant shall
pay Landlord the difference between the actual cost of repair and any insurance
proceeds received by Landlord (whether or not the Premises are in fact
repaired).
Section 13.04. Abatement of Rent. If the Premises are damaged, and Landlord
repairs the damage pursuant to the provisions of this Article 13, Basic and
Additional Rental payable during the period of such damage, repair and/or
restoration shall be reduced according to the degree, if any, to which Tenant's
use of the Premises is impaired. Except for such possible reduction in Basic and
Additional Rental, Tenant shall not be entitled to any compensation, reduction
or reimbursement from Landlord as a result of any damage, destruction, repair or
restoration of or to the Premises.
Section 13.05. Compliance With Lease Terms. Landlord's obligations
hereunder are subject to and conditioned upon Tenant's full performance of all
obligations under this Lease.
ARTICLE 14 - ENTRY BY LANDLORD
Section 14.01. Entry by Landlord. Landlord may enter the Premises at times
reasonably convenient to the Tenant to: (a) inspect the same; (b) exhibit the
same to prospective tenants - but only during the last six months of the Lease
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Term or Renewal Term, or to prospective purchasers or to prospective lenders;
(c) determine whether Tenant is complying with all its obligations hereunder;
(d) post notices of non- responsibility; or (e) make repairs required of Tenant
under the terms hereof if Tenant shall fail to do so; provided, however, that
all such work or entry shall be done as promptly as reasonably practicable and
so as to cause as little interference to Tenant as is reasonably practicable.
Except in the case of emergency, Landlord shall not enter the Premises without
reasonable prior notice.
ARTICLE 15 - DEFAULT
Section 15.01. Tenant's Default. Each of the following events shall be a
default by Tenant and a breach of this Lease:
(a) Failure to Pay Rent. Failure by Tenant to make any payment of
Basic or Additional Rental (defined terms in Section 3.02 and Section 3.03)
within ten (10) days after it is due, or to pay Additional Charges and any
other sum due under this Lease when and as the same becomes due and payable
when such failure shall continue more than ten (10) days after written
notice thereof from Landlord. However, Landlord may not elect any remedy to
which it is entitled under this Lease for the failure of Tenant to make any
payment of Basic or Additional Rental within ten days after such payment is
due without having given Tenant notice thereof three times during any
calendar year, unless failure to make a payment continues 10 days after
such notice.
(b) Other Performance Failures. Failure of Tenant to observe or
perform any other term, condition or covenant of the Lease within thirty
(30) days after receipt of written notice from Landlord specifying the
nature of the failure with reasonable particularity. If the failure is of
such a nature that it cannot be completely remedied within the 30 day
period, the failure shall not be a default if Tenant begins correction of
the failure within the 30 day period and thereafter proceeds with
reasonable diligence and in good faith to correct the failure as soon as
practicable.
(c) Attachment. Attachment, execution, levy or other seizure by legal
process of any right or interest of Tenant under this Lease if not released
within thirty (30) days.
(d) Bankruptcy. An assignment by Tenant for the benefit of creditors,
the filing of Tenant of a voluntary petition in bankruptcy, the filing of
an involuntary petition in bankruptcy and the failure of Tenant to secure a
dismissal of the petition within thirty (30) days after filing, the
appointment of a receiver to take possession of the Premises or
improvements or the leasehold estate or of Tenant's operations on the
Premises for any reason.
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Section 15.02. Landlord's Remedies. Upon default Landlord may elect any one
or more of the following remedies:
(a) Landlord may by notice to Tenant and to any qualifying mortgagee
terminate this Lease as of the date of the notice. All of Tenant's rights
in the Premises shall terminate as of the date of termination. Promptly
after such notice, Tenant shall surrender and vacate the Premises broom
clean and in good condition reasonable wear and tear excepted. Landlord may
re-enter and take possession of the Premises and of all improvements and
eject some or all parties in possession except any sublessee approved by
Landlord or qualifying under any non-disturbance agreement by Landlord.
Termination under this subsection shall not relieve Tenant from the payment
of any sum then due to Landlord or from any claim for damage previously
accrued or then accruing against Tenant.
(b) Landlord may elect to re-enter the Premises without terminating
this Lease and from time to time re-let the Premises including any
improvements or parts of improvements on the Premises for the account and
in the name of Tenant or otherwise. After re-entry, Landlord may put the
Premises in reasonably good order and condition and make alterations and
repairs reasonably required for reletting, all at Tenant's expense,
together with 10% interest per annum thereon from the date of expenditure
by Landlord. Landlord may elect to eject some or all persons then in
possession except any subtenant qualifying under a non-disturbance
agreement by Landlord. Any reletting may be for the remainder of the Lease
Term or Renewal Term or for a longer or shorter period and Landlord may
execute any leases made under this provision either in Landlord's name or
in Tenant's name. Landlord shall apply all rents from the reletting first
to the costs of re-entry and reletting including the costs of putting the
Premises in good order and condition and reasonable attorney fees, and then
to rents and other amounts payable by Tenant under this Lease, including,
without limitation, any amounts which became payable prior to the
reletting. Tenant shall nevertheless pay to Landlord on the due dates
specified in this Lease all sums payable by Tenant under this Lease, plus
Landlord's expenses of retaking, altering, repairing and reletting,
including any attorney fees, less amounts received by Landlord from the
reletting, if any. If Tenant shall not reimburse Landlord for such expenses
within ten (10) days after demand, Tenant shall pay interest at 10% per
annum from the date of incurrence of such expenses by Landlord until the
entire amount of principal and interest is paid. No act by or on behalf of
Landlord under this subsection shall constitute a termination of this Lease
unless Landlord gives Tenant and any qualifying mortgagee a notice of
termination.
(c) In the event of termination, Landlord shall be entitled to damages
in the following amounts:
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(1) Any excess of the rental obligation of Tenant under this
Lease from the date of default to the last day of the Lease Term or
Renewal Term in which termination occurs over the reasonable rental
value of the Premises, including improvements, for such period of time
(the net result to be discounted to the date of default at the rate of
5% per annum);
(2) The loss of reasonable rental value from the date of default
until a new lease has been, or with the exercise of reasonable efforts
could have been secured; and
(3) The reasonable cost of re-entry and reletting, including the
cost of any cleanup, broker's or finder's fees and attorney fees.
(d) In the event of termination on default and re-entry, Landlord
shall use reasonable diligence in reletting the Premises to a new tenant.
In no event shall Landlord be required to substantially alter any of the
covenants, terms and conditions of this Lease, or to re-let to any tenant
the Landlord reasonably considers unqualified, or at a rent which is less
than fair market value of the Premises.
(e) Landlord shall be entitled to an injunction against Tenant or any
person claiming under, by or through Tenant enjoining any default or any
threatened or attempted default.
Section 15.03. Remedies-Cumulative and Non-exclusive. The remedies set
forth in Section 15.02 shall be in addition to and not exclusive of any other
rights or remedies available to Landlord under this Lease or at law or equity.
Landlord's election to pursue any right or remedy under this Lease or at law or
equity for any breach or any attempted or threatened breach of this Lease shall
not preclude Landlord from pursuing at the same time or at any other time any
other right or remedy under this Lease or at law or equity for the same breach
or any right or remedy under this Lease or at law or equity for any other
breach.
Section 15.04. Landlord's Performance of Tenant's Obligations. If Tenant
shall default in the observance or performance of any covenant, term or
condition contained herein to be observed or performed by Tenant, then Landlord
may, at its option, and without prejudice to any of Landlord's rights or
remedies hereunder or at law or equity or such default, perform the same for the
account of the Tenant and the Tenant shall reimburse the Landlord for all costs
and expenses incurred by Landlord in such performance forthwith upon demand,
together with interest at 10% per annum from the date of incurrence of the
expense by Landlord until the entire amount, principal plus interest is paid.
Section 15.05. Liability of Landlord. Tenant acknowledges and agrees that
the liability of Landlord under this Lease shall be limited to the reasonable
value of the Premises. Any judgment rendered against Landlord shall not give
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rise to any right of execution or levy against Landlord's assets except to the
extent herein provided. The foregoing provisions are not designed to relieve
Landlord from the performance of any of Landlord's obligations under this Lease,
but only to limit the personal liability of Landlord in case of recovery of a
judgment against Landlord, nor shall the foregoing recovery of a judgment
against Landlord be deemed to limit Tenant's rights to obtain injunctive relief
or specific performance or to avail itself of any other right or remedy which
may be awarded Tenant by law or under this Lease. Notwithstanding the foregoing,
Landlord shall be fully liable to Tenant for damages suffered by Tenant as a
result of Landlord's intentional acts and intentional omissions in connection
with this Lease.
ARTICLE 16 - ASSIGNMENT AND ENCUMBRANCES
Section 16.01. By Tenant. Tenant shall keep the Premises and Tenant's
Leasehold interest therein free and clear of, and shall indemnify and hold
harmless Landlord against all liens, charges, mortgages, and encumbrances which
may result from any act or neglect of Tenant, including but not limited to liens
for utility charges and mechanic's and materialmen's liens, and all expenses in
connection therewith, including attorneys fees. Further, Tenant shall not
sublet, transfer, assign or change ownership of this Lease or Tenant's interest
in and to the Premises without first obtaining the written consent of Landlord,
which consent may be withheld or conditioned for any reasonable factor including
but not limited to credit worthiness, business experience and general
reputation, and environmental risks. Any attempted subletting, license or
concession agreement, mortgage, encumbrance or hypothecation without Landlord's
written consent shall be voidable, and at Landlord's election shall constitute a
default. The prohibitions of this Article 16 shall be construed to refer to any
acts or events referred to when they occur by operation of law, legal process,
receivership, bankruptcy or otherwise. Any dissolution, merger, consolidation,
or other reorganization of the Tenant, or the sale or other transfer of a
controlling percentage of the capital stock of the Tenant, or the sale of more
than one-half the value of the assets of the Tenant shall be deemed a voluntary
assignment; and Landlord shall consent to such voluntary assignment providing:
(1) Landlord is given a new Guaranty of Lease from Omni International Rail
Products, Inc. ("Guarantor") in the form attached hereto as Exhibit D and
incorporated herein and (2) in Landlord's reasonable judgment the credit
worthiness of the assignee and of the Guarantor to a material extent are equal
to or greater than the credit worthiness of the Tenant and the Guarantor on
April 30, 1996.
Section 16.02. No Consent. The consent by Landlord to any transfer,
assignment, subletting, or change of ownership shall not constitute a waiver of
the necessity for such consent to any subsequent attempted transfer, assignment,
subletting, or change of ownership.
Section 16.03. Assignment Instruments. Each transfer, assignment,
subletting, or change of ownership to which there has been consent shall be by
instrument in writing, in form satisfactory to Landlord, and shall be executed
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by the transferor, assignor or sublessor. The transferee, assignee, or sublessee
shall agree in the instrument for the benefit of Landlord to assume, to be bound
by, and to perform the terms, covenants and conditions of this Lease to be done,
kept and performed by Tenant. One (1) executed copy of such written instrument
shall be delivered to Landlord within ten (10) days of the date of execution.
Section 16.04. Notice and Procedure. If Tenant intends to assign this
Lease, or to sublet all or any portion of the Premises, then and so often as
each such event shall occur, Tenant shall give prior written notice of such
intent, specifying therein the proposed assignee or sublessee and providing such
information with respect thereto including, without limitation, information
concerning the principals thereof and such credit, financial and business
experience information relating to the proposed assignee or sublessee as
Landlord requires. Landlord shall, within thirty (30) days after receipt of such
notice and such information, notify Tenant in writing that Landlord consents to
the proposed transfer or does not consent to such transfer in accordance with
the provisions of this Article 16. If Tenant assigns this Lease or sublets all
or any portion of the Premises for an amount in excess of the rents called for
in this Lease, such excess shall be paid to the Landlord promptly as it is
received by the Tenant.
Section 16.05. Attorneys' Fees. Tenant shall reimburse Landlord for
Landlord's reasonable attorney's fees incurred in connection with the reviewing,
processing and documentation of any requested transfer, assignment, subletting,
or change of ownership of this Lease or Tenant's interest in and to the
Premises.
Section 16.06. No Release of Liability. Regardless of Landlord's consent,
no subletting or assignment shall release Tenant's obligation or alter the
primary liability of Tenant to pay the rental and to perform all other
obligations to be performed by Tenant hereunder. The acceptance of rental by
Landlord from any other person shall not be deemed to be a waiver by Landlord of
any provision hereof. If any assignee of Tenant or any successor of Tenant
defaults in the performance of any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of exhausting remedies against
such assignee or successor. Landlord may consent to subsequent assignments or
subletting of this Lease or amendments or modifications to this Lease with
assignees of Tenant, without notifying Tenant, or any successor of Tenant, and
without obtaining its or their consent thereto, and such action shall not
relieve Tenant of its liability under this Lease.
Section 16.07. Subordination. Landlord shall have the absolute right to
sell, transfer, assign, and encumber its interest in this Lease and its estate
in the Premises, or any part thereof, delegate all or any portion of the
obligations hereunder from time to time as it sees fit without obtaining
approval from the Tenant. This Lease shall be subject to and subordinate to any
encumbrances and to any extensions or renewals thereof which are now, or may
hereafter may be placed by Landlord upon the whole or any part of the Premises,
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provided that any person or entity purchasing or otherwise acquiring the
Premises at any sale or other proceeding under any encumbrance shall (provided
that Tenant is not then in default under this Lease) continue this Lease in full
force and effect in the same manner and with the same effect as if such person
or entity had been named as Landlord herein, and in such event, this Lease shall
continue in full force and effect and Tenant shall attorn to such person or
entity. From time to time Tenant shall execute and deliver any instrument which
may be reasonably required by the Landlord in confirmation of such subordination
promptly upon Landlord's request, without expense to the Landlord; and if the
Tenant shall fail at any time to execute and deliver such subordination, then
Landlord, in addition to any other remedy available to it in consequence
thereof, may execute and deliver such instrument as the attorney in fact of the
Tenant for such purpose; and the Tenant appoints the Landlord as attorney in
fact for such purpose, provided however, that so long as the Tenant is not in
default in the payment of rent or the performance of any of the covenants, terms
and conditions of the Lease, Tenant's possession of the Premises and the
Tenant's rights and privileges under this Lease or any renewal thereof shall not
be diminished or interfered with by the secured party under such encumbrance.
In the event Landlord sells or assigns its interest or estate absolutely,
Tenant shall be bound to the purchaser or assignee under all of the covenants,
terms and conditions of this Lease for the balance of the Lease Term or Renewal
Term with the same force and effect as if such purchaser or assignee was the
Landlord under the Lease. Tenant hereby attorns to such purchaser or assignee as
its Landlord, such attornment to be effective and self-operative without the
execution or any further instrument on the part of either of the parties hereto
immediately upon such purchaser or assignee succeeding to the interest or estate
of the Landlord. Further, upon such purchaser or assignee succeeding to the
interest or estate of the Landlord and assuming or agreeing to perform and
observe all obligations of the Landlord (including the return of any security
deposit) Landlord shall be and hereby is relieved and freed of all obligations
of Landlord for this Lease accruing after the transfer.
In the event that Landlord assigns and encumbers its interest or estate for
security purposes and such assignment or encumbrance is foreclosed for any
reason and Landlord's interest or estate is sold as upon execution in any manner
provided by law or Landlord's interest or estate is sold at public or private
sale by a secured party. Tenant shall be bound to the purchaser at such sale
under all of the covenants, terms and conditions of this Lease for the balance
of the term hereof remaining with the same force and effect as if such purchaser
was the Landlord under this Lease; and, the Tenant hereby attorns to such
purchaser as its Landlord, such attornment to be effective and self-operative
without the execution of any further instrument on the part of either of the
parties hereto immediately upon such purchaser's succeeding to the interest of
the Landlord. If during the pendency of foreclosure proceedings or otherwise,
there is appointed by the court a receiver for the Premises, Tenant hereby
attorns to the receiver as its Landlord during the pendency of such foreclosure
proceeding, such attornment to be effective and self-operative without the
execution of any instrument on the part of either party.
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ARTICLE 17 - ATTORNEYS' FEES
Section 17.01. Attorneys' Fees. If any action or proceeding is brought by
either party against the other for enforcement of this Lease, recovery of
possession of the Premises, or because an alleged dispute, breach, default or
misrepresentation in connection with any of the covenants, conditions or
provisions of this Lease, the prevailing party shall be entitled to recover from
the losing party, costs, and the reasonable attorneys fees of the prevailing
party's attorneys in such action or proceeding (whether incurred at the trial,
appellate or administrative levels), in addition to any other relief which the
prevailing party may be entitled.
ARTICLE 18 - HOLDING OVER
Section 18.01. Holding Over. If with the written consent of the Landlord
Tenant shall remain in possession of the Premises after the expiration or sooner
termination of this Lease, all the terms, conditions, covenants and agreements
hereof shall continue to apply and shall bind Tenant, for so long as Tenant
shall remain in possession, insofar as the same are applicable. If Tenant
remains in possession without Landlord's written consent, the Basic and
Additional Rental shall be One Hundred Thirty Percent (130%) of the Basic and
Additional Rental payable for the last month of the Lease Term or Renewal Term,
and Tenant shall continue to pay all expenses then payable by Tenant, prorated
on a daily basis, for each day that Tenant remains in possession, or Landlord
may eject Tenant from the Premises and recover damages caused by wrongful
holdout. If Tenant remains in possession with Landlord's written consent, such
tenancy shall be from month to month, terminable by either party on not less
than thirty (30) days' prior written notice.
ARTICLE 19 - WAIVER
Section 19.01. No Waiver. The failure of either party to exercise its
rights in connection with any breach or violation of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition, or of any subsequent breach of the same or any other
term, covenant or condition herein contained. The subsequent acceptance by
Landlord of money due hereunder shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant or condition of this Lease,
other than the failure of Tenant to pay the particular amount so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such amount.
ARTICLE 20 - EMINENT DOMAIN
Section 20.01. Terms Defined. As used in this Article 20, the following
words and phrases shall have the following meaning:
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(a) "Condemnation" shall mean: (i) the exercise of any governmental
power, whether by legal proceedings or otherwise, by a condemnor; and (ii)
a voluntary sale or transfer by Landlord to any condemnor, either under
threat of condemnation or while legal proceedings for condemnation are
pending.
(b) "Date of taking" shall mean the date the condemnor has the right
to possession of the property being condemned.
(c) "Award" shall mean all compensation, sums or anything of value
awarded, paid or received on a total or partial condemnation.
(d) "Condemnor" shall mean any public or quasi-public authority, or
private corporation or individual, having the power of condemnation.
Section 20.02. General. If, during the Lease Term or the Renewal Term there
is any taking by condemnation of all or any part of the Premises, or any
interest in this Lease, the rights and obligations of the parties shall be
determined pursuant to this Article 20.
Section 20.03. Total Taking of Premises. In the event the Premises or a
substantial part thereof rendering the balance unusable, in Tenant's reasonable
judgment, shall be taken by condemnation, then the estate and interest of the
Tenant in the Premises shall upon such taking cease and Tenant shall have no
further rights or obligations under this Lease.
Section 20.04. Taking of Less Than All of the Premises. Landlord or Tenant
may elect to terminate this Lease due to a condemnation which takes part of the
Premises only in the event of a taking of twenty percent (20%) or more of the
total number of rentable square feet in the Buildings. This Lease shall
otherwise remain in effect. Landlord or Tenant shall exercise its rights to
terminate this Lease pursuant to this Section 20.04 (if at all) by giving notice
of such exercise to the other party within thirty (30) days after the nature and
extent of the taking have been finally determined and Tenant has been notified
of such determination by Landlord. If Landlord or Tenant elects to terminate
this Lease as provided in this Section 20.04, then Tenant shall also notify
Landlord of the date of termination, which date shall not be earlier than thirty
(30) days, nor later than ninety (90) days, after a party has notified the other
party of its election to terminate; provided, however, that this Lease shall
terminate on the date of taking, if the date of taking falls on a date before
the date of termination so designated by such party. If Landlord or Tenant does
not terminate this Lease by notice provided within such thirty (30) day period,
then this Lease shall continue in full force and effect, except that all sums
payable by Tenant, if not reduced pursuant to other provisions of this Lease,
shall be reduced as hereinafter provided.
Section 20.05. Reduction in Rent. If any portion of the Premises is taken
by condemnation, and this Lease remains thereafter in full force and effect,
then, on the date of taking, the Basic and Additional Rental and any other sum
payable by Tenant hereunder shall, if not reduced pursuant to other provisions
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of this Lease, be reduced by that amount which is determined by multiplying the
Basic and Additional Rental or such other sum (as applicable) by a fraction, the
numerator of which shall be the total number of Rentable Square Feet in the
Buildings so taken, and the denominator of which shall be the total number of
Rentable Square Feet in the Buildings immediately before the date of taking.
Section 20.06. Restoration. If there is a partial taking of the Premises,
and this Lease remains thereafter in full force and effect, then Landlord, at
its sole cost, shall accomplish all necessary restoration. Basic and Additional
Rental and any other sum payable by Tenant hereunder shall, if not reduced
pursuant to other provisions of this Lease, be abated or reduced during the
period from the date of taking, until the completion of restoration, but all
other obligations of Tenant under this Lease shall remain in full force and
effect. The abatement or reduction of Basic and Additional Rental or such other
sum shall be based on the extent to which the restoration interferes with
Tenant's use of the Premises.
In the event the amount received by reason of said partial taking is not
enough to accomplish the necessary restoration, then the amount of the short
fall shall be amortized at 10% per annum on a monthly basis and Tenant shall pay
Landlord this monthly amount as Additional Rental for a 5 year term, but in any
event not longer than the expiration of the Lease Term or the Renewal Term.
Section 20.07. Award. In the event of the exercise of the right of eminent
domain or condemnation, the entire award shall belong to the Landlord except
that Tenant may be entitled to receive any award for moving expenses.
Section 20.08. Temporary Taking. If there is a total or partial taking of
the Premises for a period which is less than the remaining term of this Lease,
then all of the provisions of this Lease shall remain in full force and effect,
except that Basic and Additional Rental and any other sum payable by Tenant
hereunder shall, if not reduced pursuant to other provisions of this Lease, be
abated during such period of taking, based upon the extent to which the taking
interferes with Tenant's use of the Premises, and the Landlord shall be entitled
to whatever Award may be paid for the taking of the Premises for the period
involved; provided, however, that if there is a total taking of the Premises for
a temporary period of more than thirty (30) days, either party may elect to
terminate this Lease by giving notice to the other party within thirty (30) days
after the nature and the extent of the taking have been finally determined. If
this Lease terminates as provided in this Section 20.08, the award shall be paid
to Landlord and Tenant as set forth in Section 20.07.
ARTICLE 21 - NO MERGER
Section 21.01. No Merger. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not work a merger and shall, at
the option of Landlord, either terminate all or any existing subleases or
subtenancies or operate as an assignment to Landlord of any or all of such
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ARTICLE 22 - SURRENDER OF PREMISES
Section 22.01. Surrender. At the end of the Lease Term, or Renewal Term (if
the Tenant has exercised its option for a Renewal Term) or upon the sooner
termination of this Lease, Tenant shall peaceably deliver up to Landlord
possession of the Premises, together with all improvements or additions thereto
by whomsoever made, broom clean and in the same condition as received or first
installed, excepting only ordinary wear and tear and damage by fire, earthquake
or other catastrophes not the fault of Tenant . Any trade fixtures, machinery,
signs, and other personal property of Tenant not permanently affixed to the
Premises shall remain the property of the Tenant and Tenant shall remove them
from the Premises by the end of the Lease Term or Renewal Term. Any such
property not so removed shall be deemed abandoned by Tenant, and at Landlord's
election by notice to Tenant, title to the same shall thereupon pass to
Landlord. If Landlord does not elect by notice to Tenant to take title to the
abandoned property of the Tenant, Landlord may dispose of the abandoned property
without accountability and Tenant shall be liable to Landlord for and shall pay
to Landlord forthwith on demand the costs of removal and storage with interest
and the rate of 10% per annum on all expenses from the date of expenditure by
Landlord. Finally, before delivering possession of the Premises to the Landlord
hereunder, the Tenant shall have: 1) removed all of the residue from the
Tenant's manufacturing processes (including soot and rubber shavings) to the
extent reasonably practical, 2) steam cleaned the Buildings in a commercially
reasonable manner, and 3) repainted the Buildings. Tenant shall make any repairs
required under this section 22.01 and surrender all keys to the Premises.
ARTICLE 23 - ABANDONMENT
Section 23.01. Abandonment. Tenant shall not abandon the Premises (as
evidenced by Tenant's failure to pay all Basic and Additional Rental and
Additional Charges due under this Lease for more than two (2) consecutive weeks,
at any time during the Lease Term or Renewal Term). However, if Tenant does
abandon or surrender the Premises, or be dispossessed by process of law, or
otherwise, any personal property belonging to Tenant and left on the Premises
shall be deemed to be abandoned, and be subject to the applicable provision of
Section 22.02.
ARTICLE 24 - ESTOPPEL CERTIFICATE
Section 24.01. Estoppel Certificate. At any time, and from time to time,
but not less than twenty (20) days after prior written notice from Landlord, or
such longer period of time as allowed by a prospective lender, Tenant shall
execute, acknowledge and deliver to Landlord, promptly upon request, a
certificate certifying:
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(a) That Tenant has accepted the Premises;
(b) The commencement and expiration dates of this Lease;
(c) Whether there are then existing any defaults by Landlord in the
performance of its obligations under this Lease (and, if so, specifying the
same);
(d) That this Lease is unmodified and in full force and effect (or, if
there have been modifications, that this Lease is in full force and effect,
as modified, and stating the date and nature of each modification);
(e) The capacity of the person executing such certificate, and that
such person is duly authorized to execute the same on behalf of Tenant;
(f) The date to which Basic and Additional Rental and other sums
payable hereunder have been paid;
(g) That no notice has been received by Tenant of any default which
has not been cured, except as to defaults specified in the certificate;
(h) Such other matters as may be reasonably requested by Landlord.
Any such certificate may be relied upon by any prospective purchaser,
mortgagee or beneficiary under any deed of trust affecting the Premises, or any
part thereof.
ARTICLE 25 - NO LIGHT, ACCESS AND/OR AIR EASEMENT
Section 25.01. No Light, Access and/or Air Easement. Nothing herein
contained shall be construed to grant to or create in Tenant any easements of
light, air or access, Tenant's rights being limited to the use and occupancy of
the Premises, subject to the terms, covenants, conditions and provisions of this
Lease. Any diminution or shutting off of light or air by any structure which may
be erected on lands near or adjacent to the Premises shall in no way affect this
Lease or impose any liability on Landlord.
ARTICLE 26 - NOTICES
Section 26.01. Notices. Whenever in this Lease it shall be required or
permitted that notice or demand be given or served by Landlord or Tenant to or
on the other, such notice or demand shall be in writing and served by mail or by
facsimile transmission with receipt acknowledged. The notice or demand served by
mail shall be deemed to be given or served at the time of the signing of the
receipt or refusal to accept the certified or registered mail, postage prepaid,
if to Landlord, addressed to Landlord at the address at which the last rental
payment was made or required to be made, if to Tenant, addressed to Tenant at
such address as was last specified, by Tenant. Either party may change such
address by a written notice by certified or registered mail to the other, which
notice shall be effective upon actual receipt by the other party. Until notified
to the contrary notices shall be provided to the parties as follows:
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<PAGE>
Landlord: AG PROPERTIES, LLC
c/o Giustina Land & Timber Co.
PO Box 989
Eugene, Oregon 97440
Fax: (541) 345-2305
Tenant: OMNI PRODUCTS, INC.
P. O. Box 15319
Portland, Oregon 97293
Fax: (503) 230-9002
with a copy to: ATER WYNNE HEWITT DODSON & SKERRITT, LLP
Christopher T. Matthews
222 SW Columbia Suite 800
Portland, OR 97201
Notices given by legal counsel for a party on behalf of that party shall be
deemed notice given by such party.
ARTICLE 27 - SUCCESSORS
Section 27.01. Successors. All of the terms, covenants and conditions
hereof shall be binding upon, and inure to the benefit of, the heirs, executors,
administrators, successors and assigns of the parties hereto, provided that
nothing in this Section shall be deemed to permit any assignment, subletting,
occupancy or use by Tenant contrary to the provisions of this Lease.
ARTICLE 28 - REPRESENTATIONS
Section 28.01. No Representations. It is understood and agreed by Tenant
that Landlord and Landlord's agents have made no representations or promises
with respect to the Premises or the making or entry into this Lease, except as
in this Lease expressly set forth, and that no claim or liability, or cause for
termination, shall be asserted by Tenant against Landlord for, and Landlord
shall not be liable by reason of, the breach of any representations or promises
not expressly stated in this Lease.
ARTICLE 29- RELATIONSHIP OF PARTIES
Section 29.01. Relationship of Parties. The parties hereto agree that it is
their intention hereby to create only the relationship of Landlord and Tenant,
and no provision hereof, or act of either party hereunder, shall ever be
construed as creating the relationship or principal and agent, or a partnership,
or a joint venture or enterprise between the parties hereto.
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<PAGE>
ARTICLE 30 - COVENANT OF TITLE
Section 30.01. Covenant of Title. Landlord covenants that it has full
right, power and authority to enter into this Lease, and that Tenant or any
permitted assignee or sublessee of Tenant, upon the payment of the rentals and
performance of the covenants upon Tenant's part to be performed hereunder, shall
and may peaceably and quietly have, hold and enjoy exclusively the Premises and
improvements thereon during the Lease Term or Renewal Term without hindrance or
molestation from Landlord or anyone claiming by or through or under Landlord,
subject to all of the terms and conditions contained herein.
ARTICLE 31 - FORCE MAJEURE
Section 31.01. Force Majeure. If either party hereto shall be delayed or
hindered in or prevented from the performance of any act or work required under
the terms of this Lease by reason of strikes, lockouts, labor troubles,
inability to procure materials, failure of power, restrictive governmental laws
or regulations, riots, insurrection, war or other reason of a like nature not
the fault of either party, then performance of such act or work shall be excused
for the period of delay, hindrance or prevention and the period of the
performance of any such act or work shall be extended for an equivalent period.
The provisions of this Article 31 shall not operate to excuse Tenant from the
prompt payment of Basic or Additional Rental or any other payments required by
the terms of this Lease.
ARTICLE 32 - CONSTRUCTION OF LEASE
Section 32.01. Construction of Lease. Tenant declares that it has read and
understands all parts of this Lease. It is agreed that in the construction and
interpretation of the terms of this Lease, the rule of construction that a
document is to be construed most strictly against the party who prepared the
same shall not be applied, it being agreed that both parties hereto have
participated in the preparation of the final form of this Lease.
ARTICLE 33 - COVENANTS REGARDING ENVIRONMENTAL COMPLIANCE
Section 33.01 Compliance with Law. Tenant, at Tenant's expense, shall
comply with all laws, rules, orders, ordinances, directions, regulations and
requirements of federal, state, county, and municipal authorities pertaining to
the Premises including, without limitation, all applicable federal, state, and
local laws, regulations, or ordinances pertaining to air and water quality,
Hazardous Materials, waste disposal, air emissions, and other environmental
matters, all zoning and other land use matters, and utility availability, and
with any direction of any public officer or officers, pursuant to law, which
shall impose any duty upon Tenant with respect to the Premises.
Section 33.02. Use of Hazardous Materials. Landlord acknowledges that
Tenant currently uses on the Premises diesel fuel, hydraulic oil and MDI-based
Polyurethane Binders and consents to their use in accordance with the terms of
this Lease. Tenant shall not cause or permit any Hazardous Material to be
Lease - 28
<PAGE>
brought upon, kept or used in or about the Premises by Tenant, its agents,
employees, contractors, or invitees without the prior written consent of
Landlord, which shall not be unreasonably withheld as long as Tenant
demonstrates to Landlord's reasonable satisfaction that such Hazardous Material
is necessary or useful to Tenant's business and will be used, kept, and stored
in a manner that complies with all laws regulating any such Hazardous Material
so brought upon or used or kept in or about the Premises.
Section 33.03. Tenant's Indemnification of Landlord. Tenant shall
indemnify, defend, and hold Landlord harmless from any and all claims,
judgments, damages, penalties, fines, costs, liabilities, or losses (including
without limitation, diminution in value of the Premises, damages for the loss or
restriction on use of rentable or usable space or of any amenity of the
Premises, damages arising from any adverse impact on marketing of space, and
sums paid in settlement of claims, attorney fees, consultant fees, and expert
fees) which arise during or after the Lease Term or Renewal Term as a result of
contamination by Hazardous Materials from the actions or omissions of Tenant or
of Tenant's agents or contractors. This indemnification of Landlord by Tenant
includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state, or local governmental agency or
political subdivision because of Hazardous Materials present in the soil or
ground water on or under the Premises. Without limiting the foregoing, if the
presence of any Hazardous Materials on the Premises caused or permitted by the
actions or omissions of Tenant or its agents or contractors results in any
contamination of the Premises, Tenant shall promptly take all actions at its
sole expense as are necessary to return the Premises to the condition existing
prior to the release of any such Hazardous Material to the Premises, provided
that Landlord's approval of such actions shall first be obtained, which approval
shall not be unreasonably withheld so long as such actions would not potentially
have any material adverse long-term or short-term effect on the Premises.
Without limiting the generality of any of the foregoing, the
indemnification provided by this section shall also specifically cover costs
incurred in connection with Hazardous Materials present or suspected to be
present in the soil, ground water, or vapor on or under the Premises before the
Commencement Date.
The foregoing indemnity shall survive the expiration or earlier termination
of this Lease.
Section 33.04. Notices.
Tenant shall immediately notify Landlord in writing of
(a) Any leak spill or release or disposal of a Hazardous Material on
or adjacent to the Premises or threat of or reasonable suspicion of any of
the same;
(b) Any enforcement, clean-up, or removal or other governmental or
regulatory action threatened, constituted or completed pursuant to any
Hazardous Materials laws;
Lease - 29
<PAGE>
(c) Any claim made or threatened by any person against Tenant or the
Premises relating to damage, contributions, cost of recovery compensation,
loss or injury resulting from or claimed to result from any Hazardous
Materials; and
(d) Any reports made to any environmental agency arising out of or in
connection with any Hazardous Materials on or removed from the Premises.
Further, Tenant shall supply to Landlord no later than five (5) days after
Tenant first receives the same, copies of all claims, reports, complaints,
notices, warnings or asserted violations relating in any way to the Premises or
the Tenant's use thereof in connection with Hazardous Materials or compliance
with environmental laws. Tenant shall maintain copies of Hazardous Waste
manifests reflecting the legal and proper disposal of all Hazardous Materials
removed from the Premises and supply Landlord with copies immediately upon
completion.
Section 33.05. Spills and Releases.
(a) In the event of a leak, spill or release of a Hazardous Substance
on the Premises or the threat of or reasonable suspicion of the same,
Tenant shall immediately undertake all emergency response necessary to
contain, clean up and remove the Hazardous Substance and shall undertake
within a reasonable time all investigatory, remedial and/or removal action
necessary or appropriate to ensure that any contamination by the Hazardous
Substance is eliminated. Within thirty (30) days following the completion
of such investigatory remedial and/or removal action, Tenant shall provide
Landlord with a certification acceptable to Landlord signed by an
independent registered professional engineer certifying that all such
contamination has been eliminated.
(b) In the event that Landlord, in its sole judgment, shall determine
that its interest are being injured or threatened by a leak, spill or
release of a Hazardous Substance (or threat thereof) and that Tenant's
actions in response thereto are inadequate to protect Landlord's interest,
Landlord may take such steps as it deems necessary or desirable in
connection therewith without waiving any of its rights hereunder and
without being deemed to be in breach of any express or implied covenant of
quiet possession.
Section 33.06. Investigations. Landlord reserves the right to inspect
tenant's management of Hazardous Substances on the Premises at any time and from
time to time without notice to Tenant.
Section 33.07. Condition Upon Termination. Upon expiration or termination
of this Lease for any reason, Tenant shall remove all Hazardous Substances and
their containers form the Premises, and Tenant shall certify in writing to
Landlord that no Hazardous Substance has been leaked, spilled, released or
disposed of on the Premises during the term of the Lease. Tenant may provide
Lease - 30
<PAGE>
such certification subject to exceptions identified with specificity only if
Tenant (1) provides Landlord with the certification of an independent registered
professional engineer that any and all contamination resulting from such
exceptions has been eliminated, and (2) furnished evidence to Landlord that all
such contamination has been cleaned up to the satisfaction of all governmental
agencies having jurisdiction.
Section 33.08. Definition. As used herein, the terms "Hazardous Materials"
or "Hazardous Substances" mean any hazardous or toxic substance, material, or
waste, including, but not limited to, those substances, materials, and wastes
listed in the United States Department of Transportation Hazardous Materials
Table (49 CFR 172.101) or by the United States Environmental Protection Agency
as hazardous substances (40 CFR Part 302) and amendments thereto, petroleum
products, or such other substances, materials, and wastes that are or become
regulated under any applicable local, state, or federal law.
ARTICLE 34 COVENANTS REGARDING AMERICANS WITH DISABILITIES ACT
Section 34.01. Compliance with Law. Notwithstanding any provision of this
Lease to the contrary, the following provisions shall govern the responsibility
of the Landlord and Tenant to comply with the Americans with Disabilities Act of
1990 and its implementing regulations, as amended or supplemented from time to
time (together, the "ADA"):
(a) Tenant, at no cost to Landlord, shall comply with the provisions
of the ADA with respect to any remodel, alteration, or expansion of the
Premises that is undertaken by Landlord on behalf of Tenant. Tenant's
approval of the plans, specifications, and working drawings for any such
remodel, alteration, or expansion shall create no responsibility or
liability on the part of Landlord for compliance with the ADA of such
plans, specifications, and working drawings. Tenant, at no cost to
Landlord, shall be responsible for all barrier removal on the Premises now
or hereafter required by the ADA.
(b) Tenant will hold Landlord harmless from any indemnify Landlord for
all claims, demands, judgment, costs, expenses (including attorney fees),
and losses arising out of or related to Tenant's failure to comply with the
provisions of this Section. This provision shall survive the termination of
the Lease.
(c) Tenant's failure to comply with the provisions of this Section
shall constitute a material breach and a default of this Lease by Tenant.
However, Tenant shall not be in material breach or default unless such
failure continues thirty (30) days after notice of the failure has been
given by Landlord to Tenant, unless the failure cannot reasonably be cured
within such thirty (30) day period and Tenant has commenced to cure the
failure, and thereafter diligently in good faith continues to cure.
Lease - 31
<PAGE>
ARTICLE 35 - MISCELLANEOUS
Section 35.01. Captions. Captions throughout this instrument are for
convenience and reference only, and the words contained therein shall in no way
be held to explain, modify, amplify or aid in the interpretation, construction
or meaning of the provisions of this Lease. The use of the terms "hereof",
"hereunder" and "herein" shall refer to this Lease as a whole, inclusive of the
exhibits, except when noted otherwise.
Section 35.02. Time of Essence. Time is of the essence of this Lease, and
of all of the provisions hereof.
Section 35.03. Number; Gender, Joint and Several Liability. Terms used
herein in the plural shall include the singular, and vice versa, and terms used
herein in one gender shall include other genders, all as the context may
require. If there be more than one person or entity making up Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several as to such
persons or entitles.
Section 35.04. Governing Law. This Lease shall be construed and enforced in
accordance with the laws of the State of Oregon.
Section 35.05. Recording. Tenant shall not record this Lease without the
prior written consent of the Landlord. Upon the request of either party hereto,
the other party shall join in the execution of a memorandum of this Lease, and
the requesting party may then record such a memorandum. The memorandum shall
describe the parties, the Premises, and the duration of the Lease and shall
incorporate this Lease by reference.
Section 35.06. Severability. If any provision of this Lease or any term,
paragraph, sentence, clause, phrase or word appearing herein be judicially or
administratively held invalid or unenforceable for any reason, such holding
shall not be deemed to affect, alter, modify or impair in any manner any other
provision, term, paragraph, sentence, clause, phrase or word appearing herein.
Section 35.07. No Option. The submission of this Lease for examination does
not constitute a reservation of or option for the Premises or any other space
within the Premises, and shall vest no right in Tenant. This Lease shall become
effective as a lease only upon execution and delivery thereof by the parties
hereto.
Section 35.08. Counterparts. This Lease may be executed in one or more
counterparts all of which shall be considered one and the same Lease and shall
be effective when one or more counterparts have been signed and delivered by
each of the parties.
Section 35.09. Entire Agreement. The terms of this Lease are intended by
the parties as a final expression of their agreement with respect to the subject
matter hereof, and may not be contradicted by evidence of any prior or
Lease - 32
<PAGE>
contemporaneous agreement. The parties further intend that this Lease constitute
the complete and exclusive statement of its terms, and that no extrinsic
evidence whatsoever may be introduced in any proceedings (judicial or
otherwise), if any, involving this Lease. This Lease may not be modified, in
whole or in part, excepting by a writing signed by both Landlord and Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
May 21, 1997.
LANDLORD: TENANT:
AG PROPERTIES, LLC OMNI PRODUCTS, INC.
By: /s/ A.J. Giustina By: /s/ Jeffrey A. Edwards
- -------------------------------- -------------------------------------
A.J. Giustina, sole manager Jeffrey A. Edwards
Its: Chief Financial Officer
Lease - 33
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S FINANCIAL STATEMENTS FOR THE QUARTERS ENDED JULY 31, 1997 AND 1996 AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> APR-30-1998
<PERIOD-END> JUL-31-1997
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 2,122,356
<ALLOWANCES> 37,863
<INVENTORY> 2,429,265
<CURRENT-ASSETS> 4,766,744
<PP&E> 4,991,471
<DEPRECIATION> 1,002,935
<TOTAL-ASSETS> 10,463,493
<CURRENT-LIABILITIES> 5,273,481
<BONDS> 3,594,585
0
6,221
<COMMON> 55,305
<OTHER-SE> 1,188,869
<TOTAL-LIABILITY-AND-EQUITY> 10,463,493
<SALES> 3,826,383
<TOTAL-REVENUES> 3,826,383
<CGS> 2,837,363
<TOTAL-COSTS> 731,321
<OTHER-EXPENSES> 34,032
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 167,529
<INCOME-PRETAX> 56,128
<INCOME-TAX> 0
<INCOME-CONTINUING> 56,128
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 56,128
<EPS-PRIMARY> 0.01
<EPS-DILUTED> 0.01
</TABLE>
