SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] Annual report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the fiscal year ended December 31, 1999
or
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
Commission file number: 0-26994
ADVENT SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-2901952
(State of incorporation) (IRS Employer Identification Number)
301 Brannan Street, San Francisco, California 94107
(Address of principal executive offices and zip code)
(415) 543-7696
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Acts: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $0.01 par value
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes[X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
The number of shares of the registrant's Common Stock outstanding as of March 6,
2000 was 29,575,620. The aggregate market value of the registrant's Common Stock
held by non-affiliates, based upon the closing price on March 6, 2000, as
reported on the Nasdaq National Market System, was approximately $1.06 billion.
Shares of Common Stock held by each officer and director and by each person who
owns 5% or more of the outstanding Common Stock have been excluded in that such
persons may be deemed to be affiliates. This determination of affiliate status
is not necessarily a conclusive determination for other purposes.
DOCUMENTS INCORPORATED BY REFERENCE
Parts of the following documents are incorporated by reference into Parts II and
III of this Form 10-K: (1) 1999 Annual Report to Stockholders of the Registrant
(Part II of this Form 10-K); and (2) Definitive Proxy Statement for the
registrant's Annual Meeting of Stockholders to be held May 4, 2000 (Part III of
this Form 10-K).
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Form 10-K contains forward-looking statements in "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
elsewhere. These statements relate to future events or our future financial
performance. In some cases, you can identify forward-looking statements by
terminology such as "may", "will", "should", "expects", "plans" "anticipates",
"believes", "estimates", "predicts", "potential" or "continue" or the negative
of such terms or other comparable terminology. These statements are only
predictions and involve known and unknown risks, uncertainties and other
factors, including the risks outlined under "Risk Factors and Forward Looking
Statements," that may cause our or our industry's actual results, levels of
activity, performance or achievements to be materially different from any future
results, levels or activity, performance or achievements expressed or implied by
such forward-looking statements.
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, levels of
activity, performance or achievements. Moreover, neither we nor any other person
assumes responsibility for the accuracy and completeness of such statements. We
are under no duty to update any of the forward-looking statements after the date
of this Form 10-K or to conform such statements to actual results.
PART I
ITEM 1. BUSINESS
OVERVIEW
We are a leading provider of Enterprise Investment Management, or EIM,
solutions that automate and integrate mission-critical functions for investment
management professionals.
Advent Office(TM), our suite of integrated products, addresses the demand
for software products that automate, simplify and integrate functions for
investment management by automating and integrating work and data flows across
the entire investment management enterprise. Advent Office reduces client costs,
improves the accuracy of client information and enables our clients to provide
enhanced customer service.
INDUSTRY BACKGROUND AND OUR CLIENTS
Our clients include a range of organizations that manage investment
portfolios, including investment advisors, brokerage firms, banks and hedge
funds. Our clients also include corporations, public funds, foundations,
universities and non-profit organizations that manage investment portfolios and
perform similar portfolio management functions. Recently, the investment
management industry has experienced significant growth which, in combination
with other factors, has led to increasing demand for software products that
automate, simplify and integrate functions within investment management
organizations. This increasing demand is driven by several industry dynamics.
Financial assets under management have increased substantially during the last
decade. As the value of total financial assets under management has increased,
there has been a substantial increase in the number of investment management
organizations and a steady introduction of increasingly sophisticated financial
instruments. As a result, investment managers are faced with increasingly
complicated portfolio accounting and management requirements as well as
extensive and evolving industry standards and government regulations.
These dynamics have increased the volume and complexity of information and
data flows within investment management organizations and between such
organizations and third parties, such as brokerage firms, clients, custodians,
banks, pricing services and other data providers. Consequently, investment
management organizations require more sophisticated and integrated software
products for their front, middle and back offices.
The front office operations of an investment manager include the marketing
and customer relationship management aspect of dealing with customers; the
middle office focuses on trade order management and trading workflow; and the
back office includes the accounting functions of the organization. In order to
operate efficiently within this environment, investment management organizations
must automate and integrate their mission-critical and labor-intensive
functions, including (i) investment decision support and client relationship
management, (ii) order management and trading and (iii) portfolio accounting,
performance measurement, report generation and compliance. Investment management
organizations historically have relied on internally developed systems,
timesharing services or simple spreadsheet-based systems to manage information
flows. Due to inherent limitations in each of these types of systems, investment
management organizations are demanding highly
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functional, easy-to-use, scalable, cost-effective and flexible software
applications that automate and integrate their mission-critical business
functions.
THE ADVENT SOLUTION
The Advent solution combines a fully integrated suite of client-centric
software products, with a full range of professional services - from
implementation management and training to technical support and custom
engineering, all aimed at accomplishing our clients' business objectives.
SOFTWARE PRODUCTS
We offer an integrated suite of software products for automating and
integrating work and data flows across the investment management organization,
as well as the information flows between the investment management organization
and external parties. Our products are intended to reduce client costs, improve
the accuracy of client information and generally enable clients to improve the
service they provide to their customers rather than focusing on operational
details. Each software component in the Advent Office suite focuses on certain
mission-critical functions of the investment management organization. Each
Advent Office implementation is tailored to meet the needs of a particular
market segment, as determined by size, assets under management and complexity of
the investment environment.
We believe that our Enterprise Investment Management, or EIM, solution is
well suited for the investment management functions of corporations, public
funds, partnerships, foundations, universities and non-profit organizations. An
Enterprise Investment Management solution is an evolutionary process that
encompasses three phases:
o Investment Process Integration - involves the integration of front-, mid-,
and back-office components with each other as well as with standard
productivity applications such as Microsoft Word(R) and Excel(R). This
integration eliminates ineffective communication between processes and
minimizes processing errors, enabling growth by reducing bottlenecks within
the company.
o Data Collection and Reconciliation - enables the investment firm to
integrate the external data regarding pricing and settlements so that the
firm can quickly and efficiently settle transactions and monitor
performance in an automated fashion.
o Customer Responsiveness - incorporates numerous capabilities enabling our
clients to provide more personal, effective communication with their
customers. This capability enables decision makers for the firm to have
timely access to information in order to make more effective decisions on
behalf of the clients.
BACK OFFICE
We offer three portfolio accounting and management systems: Axys(R), Advent
Partner(R) and Geneva(R), each targeted at a different market segment, to
automate the back office functions. We also offer additional back office
applications, including our REX(TM) solution, which provides reconciliation
management, and our Advent Warehouse(TM) solution, which provides data
warehousing capabilities.
AXYS, our core product, introduced in 1993, is a highly functional
portfolio accounting and management system targeted towards investment
management organizations of all sizes. Axys provides investment professionals
with broad portfolio accounting functionality, timely decision support,
sophisticated performance measurement and flexible reporting. Specifically,
clients can record, account for and report on a variety of investment
instruments, including equities, fixed income, mutual funds and cash. Axys users
gain access on demand to portfolio holdings, asset allocation, realized and
unrealized gains and losses, actual and projected income and other valuable
data. Portfolio performance can be measured for individual portfolios or related
groups, and for any specified time period. Investment professionals can choose
from over 200 pre-defined reports with flexible "as-of" reporting, which can be
customized as to formats and fonts. Clients can easily generate fully customized
reports with the assistance of the Axys Report Writer. Clients can also produce
presentation-quality graphics via an integrated link with Microsoft Excel's
charting capability. In addition, Axys offers integrated multi-currency
capabilities which, among other things, allow reports to be restated in any
currency, tracks reclaimable foreign withholding tax, and can identify
components of return attributable to market prices versus currency rate
fluctuations.
Axys also provides integration with a variety of investment tools and data.
These tools include (i) Moxy, our trade order management solution, (ii) pricing,
corporate actions, analytics and fundamental data via interfaces to data
vendors, (iii) automatic
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data entry and reconciliation of trades with interfaces to the Depository Trust
Corporation (DTC), brokerage firms and custodians, (iv) integrating through the
Internet via our custodial data service and software, and (v) Internet reporting
via Advent Browser Reporting(TM) for Enterprise Users, our Internet reporting
service.
ADVENT PARTNER, introduced in December 1996, is an investment partnership
allocation solution, which integrates with Axys. This product is specifically
designed for hedge funds, venture funds and limited investment partnerships that
face the complex and time-consuming task of consistently and accurately
accounting for and reporting on partnership tax allocation and other activities.
The Windows-based system tracks partner-specific information, handles the
complexities of allocating realized and unrealized gains and losses for tax
purposes, allocates performance incentive fees, provides on-demand partner and
partnership reporting on an economic or tax allocation basis and streamlines the
production of partnership tax returns (K-1's).
GENEVA, introduced to target organizations in 1995 and made commercially
available in October 1997, is a high-end portfolio accounting system designed to
meet the needs of large, global investment management organizations with
complex, international accounting requirements. Geneva offers feature-rich
global accounting, extensive reporting (including profit and loss reporting by
strategy) and sophisticated multicurrency capabilities. In addition, Geneva's
highly flexible design allows users to add newly created financial instruments
and tailor accounting treatments to their specific needs.
REX, introduced in the second quarter of 1997, is the Advent Office
solution for reconciliation management. REX is integrated with Axys and is
designed for firms that want to electronically reconcile their Axys information
against their custodial information. REX automates matching and helps users
identify exceptions, correct or add transactions to their portfolios or
communicate and track changes required by their custodian.
ADVENT WAREHOUSE, introduced in 1998, is a data warehouse solution designed
to allow investment professionals to readily access investment data regardless
of how the data was created or maintained, without impacting the performance of
their high volume transaction-based Advent Office systems. Relational technology
and data warehousing tools provide an open environment for ad hoc decision
support and customized reporting on enterprise wide investment information.
Investment professionals can take advantage of the sea of information captured
during the investment process to improve client service and gain competitive
advantage.
MIDDLE OFFICE
MOXY(R), introduced in 1995, automates and streamlines the trading and
order management process. Moxy facilitates accurate trade order management and
preparation, tracks trade-order status, automates the allocation of block trades
across multiple portfolios and electronically interfaces with Axys to provide an
integrated solution. Moxy supports fixed income, mutual funds and equity trading
and offers multicurrency capabilities. Moxy enables investment managers to
accurately adjust portfolio holdings, rebalance portfolios against models,
interactively assess "what-if" scenarios and automatically create orders to be
executed. For traders, Moxy tracks cash and positions during the trading day,
enables the accurate preparation of block trades and internal electronic trade
tickets, facilitates compliance with investment restrictions and trading
requirements and minimizes trading errors. Moxy also allows traders and others
to view the status of orders via customizable screens and maintain an electronic
audit trail of the trade process. Moxy automates the allocation process of
partial and complete executions and allows the user to send allocation results
using OASYS, an electronic allocation system, to communicate allocations to
brokers electronically. Moxy also provides Internet-ready electronic order
routing based on the industry standard FIX messaging protocol so that Moxy users
can route trades electronically to any FIX-compliant broker or crossing network
that supports the Internet or other TCP/IP connections. Moxy electronically
posts allocated trades into Axys on demand, eliminating time-consuming and
error-prone manual entry.
FRONT OFFICE
QUBE(R), introduced in 1995, is designed to help securities professionals
develop and improve client relationships by automating scheduling, client
communications and client data. For example, Qube integrates with portfolio
information on Axys and enables investment professionals to interactively screen
client investment profiles and notes of conversations to identify appropriate
candidates for various investment opportunities. In addition, Qube can be used
to enhance direct marketing campaigns by matching clients with market
opportunities. Qube captures extensive investment profile information, has
on-line query capability, networking features and mail merge capabilities and
facilitates information sharing across professionals in an office.
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ADVENT BROWSER REPORTING FOR DECISION MAKERS, introduced in 1998, puts the
power of data analysis on the portfolio managers' desktop via the Internet.
Using our On-line Analytical Processing tools (OLAP), investment data can be
sliced and diced to improve the decision making process. ADVENT BROWSER
REPORTING FOR INVESTORS, also introduced in 1998, allows investment managers to
post Axys reports to a secure website where their clients can access these
reports 24 hours a day, 7 days a week. ADVENT BROWSER REPORTING FOR ENTERPRISE
USERS allows investment professionals the ability to access Axys from remote
locations via the Internet and run Axys reports as if they were in their office.
GRANTS MANAGEMENT
GIFTS FOR WINDOWS(TM) is a proposal tracking and grants management system
that allows the user to retrieve and classify requests, generate personalized
letters, manage contacts, schedule and monitor activities, maintain complete
organization history, track payments, contingencies and report requests. This
software product is primarily used by the philanthropic community such as
foundations, corporations and other organizations to manage their grant-making
activities.
MAINTENANCE SUPPORT AND DATA INTERFACES
We earn recurring revenues by offering a choice of maintenance contracts
and by providing proprietary interfaces to external sources of critical data.
These interfaces allow clients to (1) download pricing, corporate actions and
other data from third party vendors such as Interactive Data Corporation
(Interactive Data), a wholly owned indirect subsidiary of Pearson plc, and (2)
interface with DTC, certain brokerage firms and custodians for trading activity.
Many of our clients use our proprietary interface to electronically retrieve
pricing and other data from Interactive Data. Interactive Data pays us a
commission based on Interactive Data's revenues from providing such data to our
clients.
Our Hub Data subsidiary consolidates securities information and data from
various third party providers such as Muller Data Corporation, Standard and
Poor's J.J. Kenny, a division of The McGraw-Hill Companies, Interactive Data and
others, and provides data feeds and services to a range of financial
institutions via electronic interfaces to many portfolio software systems.
Due to the mission-critical nature of our products, many clients purchase
annual maintenance contracts, which entitle them to technical support and
product upgrades as they become available. We continually upgrade and enhance
our products to respond to changing market needs, evolving regulatory
requirements and new technologies.
INTERNET INITIATIVE
We believe the Internet will be a low-cost communications platform used to
integrate external information into our products, thereby providing our clients
with straight through processing of business information. To take advantage of
the Internet, we have launched an Internet Initiative, developing services, both
announced and unannounced, to bring Internet-based products and services to our
clients. We launched REX, our first Internet service during the second quarter
of 1997. Using the Internet, REX consolidates communication and information from
all participating custodians, enabling our clients to quickly and easily
reconcile transactions and holdings with a click of the mouse. Our second
Internet-based product is Advent Browser Reporting, which we introduced in 1998.
Advent Browser Reporting is a reporting component of Advent Office, which
provides users the ability to access Advent Office information through a web
browser. In May 1999, we introduced Advent Corporate Actions, an enterprise-wide
notification service that automates and simplifies the process of tracking
corporate actions such as mergers, spin-offs and bankruptcies.
Additionally we have added Distance Learning and Advent Connection.
Distance Learning is Advent's online interactive classroom offering education
services via the Internet. Now our clients can participate in an interactive
education session with a certified Advent instructor from the comfort of their
office or home. Advent Connection is our client-only website which provides
technical information, support, educational offerings, discussion groups and a
software center that allows our clients to download free client reports.
From time to time, as we begin the development of new products and
services, including our Internet Initiative, we plan to continue to enter into
development agreements with information providers, clients, or other companies
in order to accelerate the delivery of new products and services.
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ALLIANCE PROGRAM
Our Alliance Program was launched in May 1998 and is designed to benefit
both our clients and our partners. The program provides a formal process through
which partners can develop, promote, and sell their products, services, and
solutions in conjunction with our suite of applications. Our Alliance Program
was created to further extend our breadth of product and service offerings.
PROFESSIONAL SERVICES
Professional services consist of consulting, implementation management,
integration management, custom programming, and training. To ensure a successful
product implementation, consultants assist clients with the initial installation
of a system, assist in the conversion of the client's historical data and
provide ongoing training and education. Consulting services may be required for
as little as two days for small systems or up to many weeks for large
implementations. We believe that consulting services facilitate a client's early
success with our products, strengthen the relationship with the client and
generate valuable feedback for us.
Implementation management provides a single point-of-contact who will work
closely with our client's project team to plan the implementation, to optimize
the use of our products, to coordinate Advent resources, to advocate on their
behalf, and to minimize schedule delays and project risks. Additionally,
implementation managers provide documentation for the implementation from
planning through production.
Integration management provides services to clients with more complex
needs. Integration managers work with the clients during implementation to
integrate their systems and workflows with our products. The services include:
development of custom interfaces from back-office systems to our Axys and Moxy
products, configuration and management of large volumes of data, and strategies
for deployment of our products for distributed sites.
We provide our clients with custom programming services that enable clients
to tailor end-user reports to their own specifications. We also provide training
sessions to our clients at various sites across the country. Additionally, we
host semi-annual conferences that provide product information and user workshops
for our clients.
CLIENTS
Our clients vary significantly in size and assets under management and
include investment advisors, brokerage firms, banks, hedge funds, corporations,
public funds, universities and non-profit organizations. At present, we have
licensed products to over 5,800 institutions in 36 countries for use by more
than 60,000 concurrent users.
SALES AND MARKETING
Sales
We sell our products and services primarily through a direct sales
organization comprised of field sales and telesales representatives. Our field
sales force is organized by geographic region and is primarily responsible for
selling our suite of products to mid-sized and large investment management
organizations. We have sales offices in San Francisco, CA, New York, NY,
Cambridge, MA and Melbourne, Australia. Our telesales organization is primarily
focused on selling our products to existing Axys clients and small and mid-sized
investment management organizations. Our telesales representatives are located
in San Francisco, CA, New York, NY, Cambridge, MA and Melbourne, Australia. Our
sales force is supported by extensive, ongoing product and sales training.
Marketing
Our marketing department is responsible for assessing market opportunities,
product planning and management and specific sales support. In addition to its
traditional marketing functions, our marketing organization is actively involved
in a process called "Market Validation." Market Validation uses a system of
interaction with and input from potential and existing clients, product
development, sales and client services and support departments to define the
scope, features and functionality of new products and product upgrades. In
addition, our product managers are responsible for all phases of a product life
cycle from product development through product introduction and beyond. Our
marketing department is also responsible for corporate marketing, including
generating client leads, targeted direct mail campaigns, seminars, advertising,
trade shows and conferences
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and public relations efforts and also provides the sales force with appropriate
written and electronic materials to use during the sales process.
PRODUCT DEVELOPMENT
In recent years, we have substantially increased our product development
expenditures in order to accelerate the rate of new product introductions,
incorporate new technologies and sustain the quality of our products. In 1999,
1998, and 1997, our product development expenditures were approximately $16.8
million, $12.6 million, and $9.4 million, respectively. Our product development
activities include the identification and validation of product specifications
as well as engineering, quality assurance and documentation.
Our new products and product upgrades require varying degrees of
development time, depending upon the complexity of the accounting requirements
and securities regulations which they are intended to address, as well as the
number and type of features incorporated. To date, we have primarily relied upon
the internal development of our products. We have in the past acquired, and may
again in the future acquire, additional technologies or products from third
parties or consultants. We intend to continue to support industry standard
operating environments, client/server architectures and network protocols.
We may not be successful in developing, introducing and marketing new
products or product enhancements on a timely and cost effective basis, or at
all, and our new products and product enhancements may not adequately meet the
requirements of the marketplace or achieve market acceptance. Delays in the
commencement of commercial shipments of new products or enhancements may result
in client dissatisfaction and delay or loss of product revenues. If we are
unable, for technological or other reasons, to develop and introduce new
products or enhancements of existing products in a timely manner in response to
changing market conditions or client requirements, or if new products or new
versions of existing products do not achieve market acceptance, our business
would be seriously harmed. In addition, our ability to develop new products and
product enhancements is dependent upon the products of other software vendors,
including certain system software vendors, such as Microsoft Corporation,
database vendors and development tool vendors. If the products of such vendors
have design defects or flaws, or if such products are unexpectedly delayed in
their introduction, our business could be seriously harmed. Software products as
complex as those offered by us may contain undetected defects or errors when
first introduced or as new versions are released. Although we have not
experienced adverse effects resulting from any software errors, we cannot assure
you that, despite testing by us and our clients, defects or errors will not be
found in new products after commencement of commercial shipments, resulting in
loss of or delay in market acceptance, which could seriously harm our business.
COMPETITION
The market for investment management software is segmented by the relative
size of the organizations that manage investment portfolios. The market in each
segment is intensely competitive and highly fragmented, subject to rapid change
and highly sensitive to new product introductions and marketing efforts by
industry participants. Our competitors include providers of software and related
services as well as providers of timeshare services. Competitors vary in size,
scope of services offered and platforms supported. In addition, we compete
indirectly with existing and potential clients, many of whom develop their own
software for their particular needs and therefore may be reluctant to license
software products offered by independent vendors such as Advent. With respect to
the market for our portfolio accounting products, we currently compete primarily
with Shaw Data, a division of SunGard Data Systems, Inc., Thomson Financial, a
division of The Thomson Corporation, and with a number of other smaller
companies. We believe that the principal competitive factors affecting our
market include product performance and functionality, ease of use, scalability,
ability to integrate external data sources, product and company reputation,
client service and support and price. We may not compete successfully against
current and future competitors, and competitive pressures could result in price
reductions, reduced operating margins or the loss of market share.
INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS
Our success is dependent in part on our ability to protect our proprietary
technology. We rely on a combination of copyright and trademark laws, trade
secrets, software security measures, confidentiality agreements and license
agreements to establish and protect our proprietary rights and our software. We
have registered trademarks including our "Advent" name and logo. We will
continue to evaluate the registration of additional trademarks as appropriate.
We generally enter into confidentiality agreements with our employees and with
our resellers and customers. Despite these efforts, it may be possible for
unauthorized third parties to copy certain portions of our products or to
reverse engineer or otherwise obtain and use our proprietary information. We do
not have any patents, and existing copyright laws afford only limited
protection. In addition, we cannot be certain that others will not develop
substantially equivalent or superseding proprietary technology, or that
equivalent products will not be marketed in
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competition with our products, thereby substantially reducing the value of our
proprietary rights. Furthermore, confidentiality agreements between us and our
employees or any license agreements with our clients may not provide meaningful
protection of our proprietary information in the event of any unauthorized use
or disclosure of it. In addition, the laws of certain countries do not protect
our proprietary rights to the same extent as do the laws of the United States.
Accordingly, we may not be able to protect our proprietary software against
unauthorized third party copying or use, which could significantly harm our
business.
EMPLOYEES
As of March 1, 2000, we had 603 employees, including 75 in sales, 109 in
professional services, 30 in marketing, 168 in product development, 117 in
client services and support and 104 in finance, administration, operations and
general management. We believe that we maintain competitive compensation,
benefits, equity participation and work environment policies to assist in
attracting and retaining qualified personnel. Our success depends to a
significant extent upon a limited number of members of senior management and
other key employees, including Stephanie DiMarco, our Chairman of the Board. The
loss of the service of one or more senior managers or other employees could have
a material adverse effect upon our business, operating results and financial
condition. None of our employees are represented by a labor union. We have not
experienced any work stoppages and we consider relations with our employees to
be good.
ITEM 2. PROPERTIES
We lease office space in San Francisco, CA, New York, NY, Millburn, NJ,
Cambridge, MA, and Melbourne, Australia. We have three separate leases in San
Francisco; a 59,000 square foot lease on our main office that expires in 2008
with a five-year extension option; a 32,000 square foot lease in an adjacent
building that expires in 2004 with a five-year extension option; and a 60,000
square foot lease that expires in 2009 with two consecutive five-year extension
options. This office space is directly across the street from the main office.
These are Advent's principal executive offices, where product development,
marketing, technical support and production are located. Advent leases three
separate office spaces in New York. We currently have a 12,100 square foot
lease, expiring in April 2000. We signed a new lease for 30,100 square feet,
expiring in 2010, with a five-year extension option at another location near the
current space and plan to occupy the premises by April 2000. Our third lease in
New York is a 29,000 square foot lease for MicroEdge that expires in 2008 with a
five-year extension. We have a 1000 square foot lease in New Jersey that expires
in June 2002. We have a 6,700 square foot lease in Cambridge, MA, which expires
in 2003. In addition, there is a 5,300 square foot lease in Melbourne, Australia
that expires in 2004, with a five-year extension option. We believe that these
facilities are adequate for our near-term needs and that suitable additional or
alternative space will be available as needed.
ITEM 3. LEGAL PROCEEDINGS
From time to time we are involved in litigation incidental to the conduct
of our business. We are not party to any lawsuit or proceeding that, in our
opinion, is likely to seriously harm our business.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF STOCKHOLDERS
None.
Executive Officers of the Registrant
The following sets forth certain information regarding the executive
officers of Advent as of March 6, 2000:
Name Age Position
---------------------- ---- -----------------------------------------
Stephanie G. DiMarco 42 Chairman of the Board
Peter M. Caswell 43 President and Chief Executive Officer
Lily S. Chang 51 Executive Vice President and Chief
Technology Officer
Irv H. Lichtenwald 44 Senior Vice President, CFO and Secretary
Armistead D. Puryear 53 Senior Vice President, Worldwide Sales
Ms. DiMarco founded Advent in June 1983. She became Chairman of the Board
in November 1995. In addition, she served as President until April 1997 and
Chief Executive Officer until November 1999. Ms. DiMarco holds a B.S. in
Business Administration from the University of California at Berkeley.
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Mr. Caswell joined Advent in December 1993 as Vice President, Sales and
Professional Services. In 1996, Mr. Caswell took on responsibility for our
marketing efforts and was promoted to Senior Vice President. In April 1997, Mr.
Caswell became President and Chief Operating Officer. In November 1999, Mr.
Caswell was promoted to President, Chief Executive Officer, and member of the
Board of Directors. Prior to joining Advent, Mr. Caswell held various management
positions, including Vice President and General Manager, Western Region, with
Dun & Bradstreet Software Services, Inc. and its predecessor, Management Science
America, Inc., a supplier of computer software for finance, marketing,
manufacturing and human resource functions. Mr. Caswell holds a diploma in
Management Studies (M.B.A. equivalent) and a Higher National Diploma in
Agriculture (B.S. equivalent) from Seale Hayne College in England.
Ms. Chang joined Advent in May 1993 as Vice President, Technology. In April
1997, Ms. Chang was promoted to Executive Vice President, Technology and was
also named Chief Technology Officer. From July 1989 to May 1993, Ms. Chang held
various positions, including Vice President, Strategic Accounts and Vice
President of Oracle Financial Applications, with Oracle Corporation, a software
licensing and consulting business. Ms. Chang holds a B.S. in Biochemistry from
Taiwan University.
Mr. Lichtenwald joined Advent in March 1995 as Chief Financial Officer.
From February 1984 to March 1995, Mr. Lichtenwald served as Chief Financial
Officer of Trinzic Corporation, a computer software developer, and its
predecessor Aion Corporation. From February 1982 to February 1984, he served as
controller of Visicorp, a computer software developer. Mr. Lichtenwald holds an
M.B.A. from the University of Chicago and a B.B.A. from Saginaw Valley State
College. Mr. Lichtenwald is a Certified Public Accountant.
Mr. Puryear joined Advent in December 1994 as Director of Client Sales. In
July 1998, Mr. Puryear was promoted to Senior Vice President, Worldwide Sales
with responsibility for sales to Advent's client base, new business development
and telemarketing. Before joining Advent, he was with Oracle Corporation and was
responsible for their Western Sales Telesales organization. Mr. Puryear has 14
years of software and technology experience as well as two years in the
investment management industry with PaineWebber, Inc. Prior to his business
career he was a pilot in the U.S. Air Force and received a Bachelor of Science
degree at the U.S. Air Force Academy in 1969.
PART II
With the exception of the information incorporated by reference to the 1999
Annual Report to Stockholders in Part II of this Form 10-K, Advent's 1999 Annual
Report to Stockholders is not deemed to be filed as part of this Form 10-K.
ITEM 5. MARKET FOR COMPANY'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Advent had approximately 82 stockholders of record at March 6, 2000.
Because many of our shares of Common Stock are held by brokers and other
institutions on behalf of stockholders, we are unable to estimate the total
number of stockholders represented by these record holders. Other information
required by this Item is incorporated by reference to the sections entitled
"Selected Financial Data - Price Range of Common Stock" and "Corporate
Information - Stock Information" in Advent's 1999 Annual Report to Stockholders.
ITEM 6. SELECTED FINANCIAL DATA
Other information required by this Item is incorporated by reference to the
sections entitled "Selected Financial Data - Selected Annual Data" and "
- -Selected Quarterly Data" in Advent's 1999 Annual Report to Stockholders.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The information required by this Item is incorporated by reference to the
section entitled "Management's Discussion and Analysis of Financial Condition
and Results of Operations" in Advent's 1999 Annual Report to Stockholders.
In addition, we operate in a rapidly changing environment that involves a
number of risks, some of which are beyond our control. The following discussion
highlights some of these risks.
OUR OPERATING RESULTS FLUCTUATE SIGNIFICANTLY AND WE MAY NOT BE ABLE TO MAINTAIN
OUR EXISTING GROWTH RATES.
Licenses into multi-user networked environments have increased both in
individual size and number, and the timing and size of individual license
transactions are becoming increasingly important factors in quarterly operating
results. The sales cycles for transactions of this size are often lengthy and
unpredictable. We may not be successful in closing large license transactions
such
9
<PAGE>
as these on a timely basis or at all. Accordingly, if future revenues from large
site licenses constitute a material portion of our net revenues, the timing of
such licenses could cause additional variability in our quarterly operating
results. We typically ship our software products shortly after receipt of a
signed license agreement and initial payment and, consequently, software product
backlog at the beginning of any quarter typically represents only a small
portion of that quarter's expected revenues. Our expense levels are based in
significant part on our expectations of future revenues and therefore are
relatively fixed in the short term. Due to the fixed nature of these expenses
combined with the relatively high gross margin historically achieved by us on
products and services, an unanticipated decline in net revenues in any
particular quarter is likely to disproportionately adversely affect operating
results.
We have generally realized lower revenues from license fees in the first
quarter of the year than in the last quarter of the prior year. We believe that
this has been due primarily to the concentration by some clients of larger
capital purchases in the fourth quarter of the calendar year and their lower
purchasing activity during the subsequent first quarter. We believe our annual
incentive compensation plans, which tend to produce increased year-end sales
activity, compound this factor. Furthermore, we have often recognized a
substantial portion of each quarter's license revenues in the last month of that
quarter.
Because of the above factors, we believe that period to period comparisons
of our operating results are not necessarily meaningful and that these
comparisons cannot be relied upon as indicators of future performance.
Our stock price has fluctuated significantly since our initial public
offering in November 1995. Like many companies in the technology and emerging
growth sector, our stock price may be subject to wide fluctuations, particularly
during times of high market volatility. If net revenues or earnings in any
quarter fail to meet the investment community's expectations, our stock price is
likely to decline. In addition, our stock price may be affected by broader
market trends unrelated to our performance.
OUR SALES CYCLE IS LONG AND WE HAVE LIMITED ABILITY TO FORECAST THE TIMING AND
AMOUNT OF SPECIFIC SALES.
Because the purchase of our software products often requires significant,
executive-level investment and systems architecture decisions by prospective
customers, we must generally engage in a relatively lengthy sales effort. These
transactions may be delayed during the customer acceptance process because we
must provide a significant level of education to prospective customers regarding
the use and benefit of our products. As a result, the sales cycle associated
with the purchase of our software products is typically between two and nine
months depending upon the size of the client, though it can be considerably
longer, and is subject to a number of significant risks over which we have
little or no control, including customers' budgeting constraints and internal
acceptance procedures. As a result of the length of our sales cycle, we have
limited ability to forecast the timing and amount of specific sales. The timing
of large individual sales is especially difficult to forecast. Because our
expenses are generally relatively fixed in the near term, any shortfall from
anticipated revenues could result in significant variations in our operating
results from quarter to quarter.
The implementation of our solutions involves a significant commitment of
resources by customers and by us over an extended period of time. Also, the size
and complexity of any particular implementation project can cause delays in the
sales cycle that precedes it. Any such delays could seriously harm our business.
WE DEPEND HEAVILY ON OUR PRODUCT, AXYS.
In 1997, 1998 and 1999, we derived a substantial majority of our net revenues
from the licensing of Axys and related products and services. In addition, many
of our other products, such as Moxy, Qube and various data interfaces were
designed to operate with Axys to provide an integrated solution. As a result, we
believe that a majority of our net revenues, at least through 2000, will depend
upon continued market acceptance of Axys, enhancements or upgrades to Axys and
related products and services.
WE ARE CONTINUING TO EXPAND OUR INTERNET INITIATIVE.
To take advantage of the Internet, we are continuing to expand an Internet
initiative under which we are developing services, both announced and
unannounced, to bring Internet-based products and services to clients. The first
of these services, Rex, was launched during the second quarter of 1997. The
second service, Advent Browser Reporting, was launched in the third quarter of
1998. As we develop new products and services under our Internet Initiative, we
have and will continue to enter into development agreements with information
providers, clients or other companies in order to accelerate the delivery of new
products and services. We may not be successful in marketing our Internet
services or in developing other Internet services. Our failure to do so could
seriously harm our business.
10
<PAGE>
WE EXPECT OUR GROSS MARGIN MAY FLUCTUATE OVER TIME.
We also expect that our gross margins may fluctuate from period to period
as we continue to introduce new recurring revenue products, expand our
professional services organization and associated revenue, continue to hire
additional personnel and increase other expenses to support our business. We
plan our expense levels based primarily on forecasted revenue levels. Because
these expenses are relatively fixed in the short term, a fluctuation in revenue
could lead to operating results differing from expectations
WE MUST CONTINUE TO INTRODUCE NEW PRODUCTS AND PRODUCT ENHANCEMENTS.
The market for our products is characterized by rapid technological change,
changes in customer demands and evolving industry standards. As a result, our
future success will continue to depend upon our ability to develop new products
that address the future needs of our target markets and to respond to these
changing standards and practices. Delays in the commencement of commercial
shipments of new products or enhancements may result in client dissatisfaction
and delay or loss of product revenues. In addition, our ability to develop new
products and product enhancements is dependent upon the products of other
software vendors, including system software vendors, such as Microsoft
Corporation, database vendors and development tool vendors. If the products of
these vendors have design defects or flaws, or if these products are
unexpectedly delayed in their introduction, our business could be seriously
harmed.
WE DEPEND UPON FINANCIAL MARKETS.
The target clients for our products include a range of organizations that
manage investment portfolios, including investment advisors, brokerage firms,
banks and hedge funds. In addition, we target corporations, public funds,
universities and non-profit organizations, which also manage investment
portfolios and have many of the same needs. The success of many of our clients
is intrinsically linked to the health of the financial markets. We believe that
demand for our products could be disproportionately affected by fluctuations,
disruptions, instability or downturns in the financial markets which may cause
clients and potential clients to exit the industry or delay, cancel or reduce
any planned expenditures for investment management systems and software
products.
GENERAL ECONOMIC CONDITIONS MAY REDUCE OUR LICENSE REVENUES.
We believe that the market for large management software systems may be
negatively impacted by a number of factors, including:
o reductions in capital expenditures by large customers;
o poor performance of major financial markets, and
o increasing competition.
The above factors may, in turn, give rise to a number of market trends that may
slow license revenue growth across the industry, including:
o longer sales cycles;
o deferral or delay of information technology projects and generally
reduced expenditures for software; and
o increased priced competition.
Although we do not believe these factors have impacted our revenues to
date, the continued presence of these factors in the market for large management
software systems could adversely affect our business and results of operations.
IF OUR RELATIONSHIP WITH INTERACTIVE DATA IS TERMINATED, OUR BUSINESS MAY BE
HARMED.
Many of our clients use our proprietary interface to electronically
retrieve pricing and other data from Interactive Data. Interactive Data pays us
a commission based on their revenues from providing this data to our clients.
Our software products
11
<PAGE>
have been customized to be compatible with their system and this software would
need to be redesigned if their services were unavailable for any reason.
Termination of our agreement with Interactive Data would require at least two
years notice by either us or them, or 90 days in the case of material breach. If
our relationship with Interactive Data were terminated or their services were
unavailable to our clients for any reason, replacing these services could be
costly and time consuming.
WE FACE INTENSE COMPETITION.
The market for investment management software is intensely competitive and
highly fragmented, subject to rapid change and highly sensitive to new product
introductions and marketing efforts by industry participants. Our competitors
include providers of software and related services as well as providers of
timeshare services.
Our competitors vary in size, scope of services offered and platforms
supported. In addition, we compete indirectly with existing and potential
clients, many of whom develop their own software for their particular needs and
therefore may be reluctant to license software products offered by independent
vendors like us. Many of our competitors have longer operating histories and
greater financial, technical, sales and marketing resources than we do. We
cannot guarantee that we will be able to compete successfully against current
and future competitors or that competitive pressures will not result in price
reductions, reduced operating margins and loss of market share, any one of which
could seriously harm our business.
WE FACE CHALLENGES IN EXPANDING OUR INTERNATIONAL OPERATIONS.
We market and sell our products in the United States and, to a lesser
extent, internationally. We have established a subsidiary located in Australia
to market and sell our products in Australia. In addition, during 1999 we
entered into a distributor relationship with Advent Europe, an independent
entity financially backed by our existing distributor in Scandinavia. In order
to expand our international operations, we would need to continue to establish
additional facilities, acquire other businesses or enter into additional
distribution relationships in other parts of the world. The expansion of our
existing international operations and entry into additional international
markets will require significant management attention and financial resources.
We cannot be certain that our investments in establishing facilities in other
countries will produce desired levels of revenue. We currently have limited
experience in developing localized versions of our products and marketing and
distributing our products internationally. In addition, international operations
are subject to other inherent risks, including:
o The impact of recessions in economies outside the United States;
o Greater difficulty in accounts receivable collection and longer
collection periods;
o Unexpected changes in regulatory requirements;
o Difficulties in successfully adapting our products to the language and
technology standards of other countries;
o Difficulties and costs of staffing and managing foreign operations;
o Reduced protection for intellectual property rights in some countries;
o Potentially adverse tax consequences; and
o Political and economic instability.
Our international revenues are generally denominated in US dollars, with
the exception of our subsidiary, Advent Australia. The revenues, expenses,
assets and liabilities of our subsidiary, Advent Australia, are primarily
denominated in Australian dollars. We do not currently engage in currency
hedging activities. Although exposure to currency fluctuations to date has been
insignificant, future fluctuations in currency exchange rates may adversely
affect revenues from international sales and the US dollar value of Advent
Australia's revenues, expenses, assets and liabilities.
12
<PAGE>
UNDETECTED SOFTWARE ERRORS OR FAILURES FOUND IN NEW PRODUCTS MAY RESULT IN LOSS
OF OR DELAY IN MARKET ACCEPTANCE OF OUR PRODUCTS THAT COULD SERIOUSLY HARM OUR
BUSINESS.
Our products may contain undetected software errors or failures when first
introduced or as new versions are released. Despite testing by us and by current
and potential customers, errors may not be found in new products until after
commencement of commercial shipments, resulting in loss of or a delay in market
acceptance, which could seriously harm our business.
IF WE ARE UNABLE TO PROTECT OUR INTELLECTUAL PROPERTY WE MAY BE SUBJECT TO
INCREASED COMPETITION THAT COULD SERIOUSLY HARM OUR BUSINESS.
Our success depends significantly upon our proprietary technology. We
currently rely on a combination of copyright and trademark laws, trade secrets,
confidentiality procedures and contractual provisions to protect our proprietary
rights. We seek to protect our software, documentation and other written
materials under trade secret and copyright laws, which afford only limited
protection. We cannot assure you that we will develop proprietary products or
technologies that are patentable, that any patent, if issued, would provide us
with any competitive advantages or would not be challenged by third parties, or
that the patents of others will not adversely affect our ability to do business.
Litigation may be necessary to protect our proprietary technology. This
litigation may be time-consuming and expensive. Despite our efforts to protect
our proprietary rights, unauthorized parties may attempt to copy aspects of our
products or to obtain and use information that we regard as proprietary. In
addition, the laws of some foreign countries do not protect proprietary rights
to as great an extent as do the laws of the United States. We cannot assure you
that our means of protecting our proprietary rights will be adequate or that our
competitors will not independently develop similar technology, duplicate our
products or design around any patent that may be issued to us or other
intellectual property rights of ours.
WE FACE RISKS ASSOCIATED WITH POTENTIAL ACQUISITIONS OR DIVESTITURES.
We may acquire or make investments in complementary companies, products or
technologies. In addition, we continually evaluate the performance of all our
products and product lines and may sell or discontinue current products or
product lines. If we buy a company, we could have difficulty in integrating that
company's personnel and operations. In addition, the key personnel of the
acquired company may decide not to work for us. If we make other types of
acquisitions, we could have difficulty in assimilating the acquired technology
or products into our operations. These difficulties could disrupt our ongoing
business, distract our management and employees and increase our expenses.
Furthermore, we may have to incur debt, write-off software development costs or
other assets, incur severance liabilities, amortize expenses related to goodwill
and other intangible assets or issue equity securities to pay for any future
acquisitions. The issuance of equity securities could dilute our existing
stockholders' ownership.
In addition, potential acquisition candidates targeted by us may not have
audited financial statements, detailed financial information or any degree of
internal controls. There can be no assurance that an audit subsequent to any
successful completion of an acquisition will not reveal matters of significance,
including issues regarding revenues, expenses, liabilities, contingent or
otherwise, and intellectual property. There can be no assurance that the Company
would be successful in overcoming these or any other significant risks
encountered and the failure to do so could have a material adverse effect upon
the Company's business, operating results and financial condition.
WE MUST ATTRACT AND RETAIN QUALIFIED TECHNICAL AND SALES PERSONNEL.
Our continued success depends, in part, on our ability to identify,
attract, motivate and retain qualified technical, sales and other personnel.
Because our future success is dependent on our ability to continue to enhance
and introduce new products, we are particularly dependent on our ability to
identify, attract, motivate and retain qualified engineers with the requisite
education, backgrounds and industry experience. Competition for qualified
engineers, particularly in Northern California and the San Francisco Bay Area,
is intense. The loss of the services of a significant number of our engineers or
sales people could be disruptive to our development efforts or business
relationships and could seriously harm our business.
13
<PAGE>
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We considered the provision of Financial Reporting Release No. 48
"Disclosure of Accounting Policies for Derivative Financial Instruments and
Derivative Commodity Instruments, and Disclosure of Quantitative and Qualitative
Information about Market Risk Inherent in Derivative Financial Instruments,
Other Financial Instruments and Derivative Commodity Instruments". We are
exposed to financial market risks, including changes in foreign currency
exchange rates and interest rates. Much of our revenue and capital spending is
transacted in U.S. dollars. However, since the formation of Advent Australia,
Pty. Ltd., (Advent Australia) whose revenues and capital spending are transacted
in Australian dollars we have greater exposure to foreign currency fluctuations.
Results of operations from Advent Australia are not material to our operating
results, therefore, we believe that foreign currency exchange rates should not
materially adversely affect our overall financial position, results of
operations or cash flows. We believe that the fair value of our investment
portfolio or related income would not be significantly impacted by increases or
decreases in interest rates due mainly to the short-term nature of our
investment portfolio. However, a sharp increase in interest rates could have a
material adverse affect on the fair value of our investment portfolio.
Conversely, sharp declines in interest rates could seriously harm interest
earnings of our investment portfolio.
The table below presents principal amounts by expected maturity (in U.S.
dollars) and related weighted average interest rates by year of maturity for our
investment portfolio.
<TABLE>
<CAPTION>
Estimated Fair Value
at December 31,
2000 2001 Thereafter Total
<S> <C> <C> <C> <C>
(in thousands)
Federal Instruments $ 18,450 $ - $ 18,450
Weighted Average Interest Rate 5.58 5.58
Commercial Paper & Short-term obligations 43,320 43,320
Weighted Average Interest Rate 5.65 5.65
Corporate Notes & Bonds 3,000 3,000
Weighted Average Interest Rate 5.25 5.25
Municipal Notes & Bonds 27,300 10,285 37,585
Weighted Average Interest Rate 5.71 6.14 6.46
---------------------------------------------------
Total Portfolio, excluding equity securities $ 92,070 $ 10,285 $ - $102,355
</TABLE>
At December 31, 1999, cash, cash equivalents and short-term investments
totaled approximately $119 million, which is comprised of the $102 million in
our investment portfolio presented above, $13 million in other cash and cash
equivalents and $4 million in other investments.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
(1) Financial Statements.
The following financial statements of Advent and the Report of
Independent Accountants are incorporated by reference to page 36
through 53 of Advent's 1999 Annual Report to Stockholders:
Consolidated Balance Sheets - December 31, 1999 and 1998
Consolidated Statements of Operations -Years Ended December 31,
1999, 1998, and 1997
14
<PAGE>
Consolidated Statements of Stockholders' Equity- Years Ended
December 31, 1999, 1998, and 1997
Consolidated Statements of Cash Flows- Years Ended December 31,
1999, 1998, and 1997
Notes to Consolidated Financial Statements
Report of Independent Accountants
(2) Financial Statement Schedules.
The following financial statement schedules of Advent for the
years ended December 31, 1999, 1998, and 1997 are filed as part of
this Form 10-K and should be read in conjunction with Advent's
Financial Statements.
Report of Independent Accountants S-1
Schedule II --- Valuation and Qualifying Accounts S-2
Schedules not listed above have been omitted because they are not
applicable or are not required or because the required information is
included in the Financial Statements or Notes thereto.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
Certain information required by Part III is omitted from this Form 10-K in
that the Registrant will file a definitive proxy statement pursuant to
Regulation 14A of the Securities Exchange Act of 1934, as amended, (Proxy
Statement) not later than 120 days after the end of the fiscal year covered by
this Form 10-K and certain information included therein is incorporated herein
by reference. Only those sections of the Proxy Statement that specifically
address the items set forth herein are incorporated by reference and such
incorporation does not include, specifically, the Performance Graph included in
such Proxy Statement.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information concerning our directors required by this Item is
incorporated by reference to our Proxy Statement.
The information concerning our executive officers required by this Item is
incorporated by reference herein to the section of the Form 10-K in Part I, Item
4, entitled "Executive Officers of Advent."
The information regarding compliance with Section 16(a) of the Securities
Exchange Act of 1934 is to be set forth in our Proxy Statement and such
information is hereby incorporated by reference.
ITEM 11. EXECUTIVE COMPENSATION
Information required by this Item is incorporated by reference to our Proxy
Statement.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information required by this Item is incorporated by reference to our Proxy
Statement.
15
<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information required by this Item is incorporated by reference to our Proxy
Statement.
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) The following documents are filed as a part of this Annual Report on
Form 10-K:
1. Consolidated Financial Statements required to be filed by Item 8
of Form 10-K. See the list of Financial Statements contained in
Item 8 of this Report.
2. Financial Statement Schedules required to be filed by Item 8 of
Form 10-K. See the list of Financial Statement Schedules
contained in Item 8 of this Report.
3. Exhibits.
The Exhibits listed on the accompanying Index to Exhibits
immediately following the financial statement schedules are filed
as part of, or incorporated by reference into, this Form 10-K.
Exhibit
Number Description of Document
--------- ------------------------------------------------------
3.1+ Certificate of Incorporation of Registrant.
3.2+ Amended and Restated Certificate of Incorporation of
Registrant.
3.3 Amended and Restated Bylaws of Registrant.
4.1+ Specimen Common Stock Certificate of Registrant.
10.1+ Form of Indemnification Agreement for Executive
Officers and Directors.
10.2++ 1992 Stock Plan, as amended, and form of stock option
agreement.
10.3+ 1993 Profit Sharing & Employee Savings Plan, as
amended.
10.4+ 1995 Employee Stock Purchase Plan and form of
subscription agreement.
10.5+ 1995 Director Option Plan and form of stock option
agreement.
10.7+ Full Service Office Lease dated April 14, 1992, as
amended, between Brannan Street Properties and
Advent for facilities located at 301 Brannan in San
Francisco, California.
10.8+ Standard Form of Lease dated November 6, 1992
between Broadway Management Company as agent for 500
Fifth Avenue Associates and Advent for facilities
located at 500 Fifth Avenue, New York, New York.
10.9+ Severance Agreement between Advent and Peter M.Caswell
dated December 10, 1993.
10.10+* Agreement between Advent and Interactive Data
Corporation dated January 1, 1995.
10.14** Office Lease dated August 1, 1998, between SOMA
Partners, L.P. and Advent for facilities located at
301 Brannan in San Francisco, California.
10.15 Office Lease dated July 22, 1999, between 405
Lexington, L.L.C. and Advent for facilities
located at 666 Third Avenue in New York, New York.
13.1 Selected Portions of Advent Software, Inc.'s 1999
Annual Report to Stockholders.
21.1 Subsidiaries of Advent.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
24.1 Power of Attorney (included on page 17 of this Form
10-K).
27.1 Financial Data Schedule.
----------
+ Incorporated by reference to the exhibit filed with
Advent's registration statement filed on Form SB-2
(commission file number 33-97912-LA), declared
effective on November 15, 1995
++ Incorporated by reference to the exhibits filed
with Advent's registration statements file on Form
S-8 on May 28, 1999.
* Confidential treatment requested as to certain
portions of this exhibit.
** Incorporated by reference to Advent's Annual Report
on Form 10-K for the year ended December 31, 1998.
(b) Reports on Form 8-K
None
16
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Act
of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized, on this 17th day of March, 2000.
ADVENT SOFTWARE, INC.
By: /s/ Peter M. Caswell
--------------------
Peter M. Caswell
Chief Executive Officer,
President and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Peter M. Caswell and Irv H. Lichtenwald,
jointly and severally, his or her attorneys-in-fact, each with the power of
substitution, for him or her in any and all capacities, to sign any amendments
to this Form 10-K, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
or her substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934 this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signature Title Date
- ------------------------- ---------------------------------- --------------
/s/ Peter M. Caswell Chief Executive Officer, President March 17, 2000
- -------------------- and Director
Peter M. Caswell (Principal Executive Officer)
/s/ Irv H. Lichtenwald Senior Vice President, Chief March 17, 2000
- ---------------------- Financial Officer and Secretary
Irv H. Lichtenwald (Principal Financial Officer)
/s/ Patricia Voll Vice President, Finance March 17, 2000
- ------------------ (Principal Accounting Officer)
Patricia Voll
/s/ Stephanie G. DiMarco Chairman of the Board and March 17, 2000
- ------------------------ Director
Stephanie G. DiMarco
/s/ Frank H. Robinson Director March 17, 2000
- ---------------------
Frank H. Robinson
/s/ Wendell G. Van Auken Director March 17, 2000
- ------------------------
Wendell G. Van Auken
/s/ William F. Zuendt Director March 17, 2000
- ---------------------
William F. Zuendt
/s/ Monte Zweben Director March 17, 2000
- ----------------
Monte Zweben
17
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS ON FINANCIAL STATEMENT SCHEDULE
To the Board of Directors of Advent Software, Inc.
Our audits of the consolidated financial statements referred to in our report
dated January 21, 2000 appearing on page 53 of the 1999 Annual Report to
Shareholders of Advent Software, Inc. (which report and consolidated financial
statements are incorporated by reference in this Annual Report on Form 10-K)
also included an audit of the financial statement schedules listed in Item
14(a)(2) of this Form 10-K. In our opinion, this financial statement schedule
presents fairly, in all material respects, the information set forth therein
when read in conjunction with the related consolidated financial statements.
PricewaterhouseCoopers LLP
San Francisco, California
January 21, 2000, except as to the stock split described in Note 8, as to which
the date is February 17, 2000
S-1
<PAGE>
SCHEDULE II
ADVENT SOFTWARE, INC
VALUATION AND QUALIFYING ACCOUNTS
for the years ended December 31, 1997, 1998, and 1999
Additions
Balance at Charged Charged Balance at
Beginning To to Other End of
Description of Period Expense Accounts Deductions Period
- ------------------ ------------ ------------ -------- ---------- -----------
Allowance for
doubtful accounts:
1997 $ 235,000 $ 248,000 -- $ 218,000 $265,000
1998 $ 265,000 $ 471,000 -- $ 374,000 $362,000
1999 $ 362,000 $1,130,000 -- $ 776,000 $716,000
S-2
EXHIBIT 3.3
AMENDED AND RESTATED
BYLAWS
OF
ADVENT SOFTWARE, INC.
(a Delaware corporation)
ARTICLE I
CORPORATE OFFICES
I.1 REGISTERED OFFICE
The registered office of the corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware. The name of the registered
agent of the corporation at such location is The Corporation Trust Company.
I.2 OTHER OFFICES
The board of directors may at any time establish branch or subordinate
offices at any place or places where the corporation is qualified to do
business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
II.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place within or outside
the State of Delaware designated by the board of directors. In the absence of
any such designation, stockholders' meetings shall be held at the principal
executive office of the corporation.
II.2 ANNUAL MEETING
The annual meeting of stockholders shall be held each year on a date
and at a time designated by the board of directors. In the absence of such
designation, the annual meeting of stockholders shall be held on the second
Friday in June in each year at 10:00 a.m. However, if such day falls on a legal
<PAGE>
holiday, then the meeting shall be held at the same time and place on the next
succeeding full business day. At the meeting, directors shall be elected, and
any other proper business may be transacted.
II.3 SPECIAL MEETING
A special meeting of the stockholders may be called at any time by the
board of directors, or by the chairman of the board, or by the chief executive
officer, or by one or more stockholders holding shares in the aggregate entitled
to cast not less than twenty percent (20%) of the votes of all shares of stock
owned by stockholders entitled to vote at that meeting.
II.4 NOTICE OF STOCKHOLDERS' MEETINGS
All notices of meetings of stockholders shall be sent or otherwise
given in accordance with Sections 2.5 and 2.6 of these bylaws not less than ten
(10) nor more than sixty (60) days before the date of the meeting. The notice
shall specify the place, date and hour of the meeting and (i) in the case of a
special meeting, the purpose or purposes for which the meeting is called (no
business other than that specified in the notice may be transacted) or (ii) in
the case of the annual meeting, those matters which the board of directors, at
the time of giving the notice, intends to present for action by the stockholders
(but any proper matter may be presented at the meeting for such action). The
notice of any meeting at which directors are to be elected shall include the
name of any nominee or nominees who, at the time of the notice, the board
intends to present for election.
II.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS
To be properly brought before an annual meeting or special meeting,
nominations for the election of director or other business must be (a) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the board of directors or other person so authorized pursuant to
Section 2.3 of these bylaws, (b) otherwise properly brought before the meeting
by or at the direction of the board of directors or (c) otherwise properly
brought before the meeting by a stockholder. For such nominations or other
business to be considered properly brought before the meeting by a stockholder,
such stockholder must have given timely notice and in proper form of his intent
to bring such business before such meeting. To be timely, such stockholder's
notice must be delivered to or mailed and received by the secretary of the
Corporation not less than 90 days prior to the meeting; provided, however, that
in the case of a meeting called by or on behalf of the Board of Directors of the
Corporation where prior notice, or public disclosure, of the meeting has not
been given or made at least 100 days prior to such meeting, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. To be in proper form,
a stockholder's notice to the secretary shall set forth:
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(i) the name and address of the stockholder who intends to
make the nominations, propose the business, and, as the case
may be, the name and address of the person or persons to be
nominated or the nature of the business to be proposed;
(ii) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such
meeting and, if applicable, intends to appear in person or by
proxy at the meeting to nominate the person or persons
specified in the notice or introduce the business specified in
the notice;
(iii) if applicable, a description of all arrangements or
understandings between the stockholder and each nominee and
any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made
by the stockholder;
(iv) such other information regarding each nominee or each
matter of business to be proposed by such stockholder as would
be required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission
had the nominee been nominated, or intended to be nominated,
or the matter been proposed, or intended to be proposed by the
board of directors' and
(v) if applicable, the consent of each nominee to serve
as director of the Corporation if so elected.
The chairman of the meeting may refuse to acknowledge the nomination of
any person or the proposal of any business not made in compliance with the
foregoing procedure.
II.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders shall be given either
personally or by first-class mail or by telegraphic or other written
communication. Notices not personally delivered shall be sent charges prepaid
and shall be addressed to the stockholder at the address of that stockholder
appearing on the books of the corporation or given by the stockholder to the
corporation for the purpose of notice. Notice shall be deemed to have been given
at the time when delivered personally or deposited in the mail or sent by
telegram or other means of written communication.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting, executed by the secretary, assistant secretary or any
transfer agent of the corporation giving the notice, shall be prima facie
evidence of the giving of such notice.
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II.7 QUORUM
The holders of a majority in voting power of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum is not present or
represented at any meeting of the stockholders, then either (i) the chairman of
the meeting or (ii) the stockholders entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the meeting in accordance
with Section 2.8 of these bylaws.
When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which, by express provision of the laws of the State of Delaware or
of the certificate of incorporation or these bylaws, a different vote is
required, in which case such express provision shall govern and control the
decision of the question.
If a quorum be initially present, the stockholders may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken is approved by a
majority of the stockholders initially constituting the quorum.
II.8 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time and place, unless these
bylaws otherwise require, notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the adjournment
is taken. At the adjourned meeting the corporation may transact any business
that might have been transacted at the original meeting. If the adjournment is
for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
II.9 VOTING
The stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of Section 2.11 of these bylaws,
subject to the provisions of Sections 217 and 218 of the General Corporation Law
of Delaware (relating to voting rights of fiduciaries, pledgors and joint
owners, and to voting trusts and other voting agreements).
Except as may be otherwise provided in the certificate of incorporation
or these bylaws, each stockholder shall be entitled to one vote for each share
of capital stock held by such stockholder.
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II.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken at any annual or special
meeting of stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing setting forth the action so
taken shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Such consents shall be delivered to the corporation by delivery to it
registered office in the state of Delaware, its principal place of business, or
an officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to a
corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested.
II.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING
For purposes of determining the stockholders entitled to notice of any
meeting or to vote thereat, the board of directors may fix, in advance, a record
date, which shall not precede the date upon which the resolution fixing the
record date is adopted by the board of directors and which shall not be more
than sixty (60) days nor less than ten (10) days before the date of any such
meeting, and in such event only stockholders of record on the date so fixed are
entitled to notice and to vote, notwithstanding any transfer of any shares on
the books of the corporation after the record date.
If the board of directors does not so fix a record date, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the business day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting
unless the board of directors fixes a new record date for the adjourned meeting,
but the board of directors shall fix a new record date if the meeting is
adjourned for more than thirty (30) days from the date set for the original
meeting.
The record date for any other purpose shall be as provided in Section
8.1 of these bylaws.
II.12 PROXIES
Every person entitled to vote for directors, or on any other matter,
shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the person and filed with the secretary
of the corporation, but no such proxy shall be voted or acted upon after three
(3) years from its date, unless the proxy provides for a longer period. A proxy
shall be deemed signed if the stockholder's name is placed on the proxy (whether
by manual signature, typewriting, telegraphic transmission, telefacsimile or
otherwise) by the stockholder or the stockholder's attorney-
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in-fact. The revocability of a proxy that states on its face that it is
irrevocable shall be governed by the provisions of Section 212(e) of the General
Corporation Law of Delaware.
II.13 ORGANIZATION
The chairman of the board, or in the absence of the chairman, the
president, shall call the meeting of the stockholders to order, and shall act as
chairman of the meeting. In the absence of the chairman of the board, the
president, and all of the vice presidents, the stockholders shall appoint a
chairman for such meeting. The chairman of any meeting of stockholders shall
determine the order of business and the procedures at the meeting, including
such matters as the regulation of the manner of voting and the conduct of
business. The secretary of the corporation shall act as secretary of all
meetings of the stockholders, but in the absence of the secretary at any meeting
of the stockholders, the chairman of the meeting may appoint any person to act
as secretary of the meeting.
II.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
ARTICLE III
DIRECTORS
III.1 POWERS
Subject to the provisions of the General Corporation Law of Delaware
and to any limitations in the certificate of incorporation or these bylaws
relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.
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III.2 NUMBER OF DIRECTORS
The board of directors shall consist of six (6) members. The number of
directors may be changed by an amendment to this bylaw, duly adopted by the
board of directors or by the stockholders, or by a duly adopted amendment to the
certificate of incorporation.
III.3 ELECTION AND TERM OF OFFICE OF DIRECTORS
Except as provided in Section 3.4 of these bylaws, directors shall be
elected at each annual meeting of stockholders to hold office until the next
annual meeting. Each director, including a director elected or appointed to fill
a vacancy, shall hold office until the expiration of the term for which elected
and until a successor has been elected and qualified.
III.4 RESIGNATION AND VACANCIES
Any director may resign effective on giving written notice to the
chairman of the board, the president, the secretary or the board of directors,
unless the notice specifies a later time for that resignation to become
effective. If the resignation of a director is effective at a future time, the
board of directors may elect a successor to take office when the resignation
becomes effective.
Vacancies in the board of directors may be filled by a majority of the
remaining directors, even if less than a quorum, or by a sole remaining
director; however, a vacancy created by the removal of a director by the vote of
the stockholders or by court order may be filled only by the affirmative vote of
a majority of the shares represented and voting at a duly held meeting at which
a quorum is present (which shares voting affirmatively also constitute a
majority of the required quorum). Each director so elected shall hold office
until the next annual meeting of the stockholders and until a successor has been
elected and qualified.
Unless otherwise provided in the certificate of incorporation or these
bylaws:
(i) Vacancies and newly created directorships resulting from
any increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director.
(ii) Whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors by the provisions of
the certificate of incorporation, vacancies and newly created directorships of
such class or classes or series may be filled by a majority of the directors
elected by such class or classes or series thereof then in office, or by a sole
remaining director so elected.
If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
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of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the certificate of incorporation or these bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten (10) percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office as aforesaid,
which election shall be governed by the provisions of Section 211 of the General
Corporation Law of Delaware as far as applicable.
III.5 REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, by the certificate of
incorporation or by these bylaws, any director or the entire board of directors
may be removed, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors.
III.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
Regular meetings of the board of directors may be held at any place
within or outside the State of Delaware that has been designated from time to
time by resolution of the board. In the absence of such a designation, regular
meetings shall be held at the principal executive office of the corporation.
Special meetings of the board may be held at any place within or outside the
State of Delaware that has been designated in the notice of the meeting or, if
not stated in the notice or if there is no notice, at the principal executive
office of the corporation.
Any meeting of the board, regular or special, may be held by conference
telephone or similar communication equipment, so long as all directors
participating in the meeting can hear one another; and all such participating
directors shall be deemed to be present in person at the meeting.
III.7 FIRST MEETINGS
The first meeting of each newly elected board of directors shall be
held at such time and place as shall be fixed by the vote of the stockholders at
the annual meeting. In the event of the failure of the stockholders to fix the
time or place of such first meeting of the newly elected board of directors, or
in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
board of directors, or as shall be specified in a written waiver signed by all
of the directors.
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III.8 REGULAR MEETINGS
Regular meetings of the board of directors may be held without notice
at such time as shall from time to time be determined by the board of directors.
If any regular meeting day shall fall on a legal holiday, then the meeting shall
be held at the same time and place on the next succeeding full business day.
III.9 SPECIAL MEETINGS; NOTICE
Special meetings of the board of directors for any purpose or purposes
may be called at any time by the chairman of the board, the president, any vice
president, the secretary or any two directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail,
telecopy or telegram, charges prepaid, addressed to each director at that
director's address as it is shown on the records of the corporation. If the
notice is mailed, it shall be deposited in the United States mail at least four
(4) days before the time of the holding of the meeting. If the notice is
delivered personally or by telephone, telecopy or telegram, it shall be
delivered personally or by telephone or to the telegraph company at least
forty-eight (48) hours before the time of the holding of the meeting. Any oral
notice given personally or by telephone may be communicated either to the
director or to a person at the office of the director who the person giving the
notice has reason to believe will promptly communicate it to the director. The
notice need not specify the purpose or the place of the meeting, if the meeting
is to be held at the principal executive office of the corporation.
III.10 QUORUM
A majority of the authorized number of directors shall constitute a
quorum for the transaction of business, except to adjourn as provided in Section
3.12 of these bylaws. Every act or decision done or made by a majority of the
directors present at a duly held meeting at which a quorum is present shall be
regarded as the act of the board of directors, subject to the provisions of the
certificate of incorporation and applicable law.
A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the quorum for that meeting.
III.11 WAIVER OF NOTICE
Notice of a meeting need not be given to any director (i) who signs a
waiver of notice, whether before or after the meeting, or (ii) who attends the
meeting other than for the express purposed of
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objecting at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened. All such waivers shall
be filed with the corporate records or made part of the minutes of the meeting.
A waiver of notice need not specify the purpose of any regular or special
meeting of the board of directors.
III.12 ADJOURNMENT
A majority of the directors present, whether or not constituting a
quorum, may adjourn any meeting of the board to another time and place.
III.13 NOTICE OF ADJOURNMENT
Notice of the time and place of holding an adjourned meeting of the
board need not be given unless the meeting is adjourned for more than
twenty-four (24) hours. If the meeting is adjourned for more than twenty-four
(24) hours, then notice of the time and place of the adjourned meeting shall be
given before the adjourned meeting takes place, in the manner specified in
Section 3.9 of these bylaws, to the directors who were not present at the time
of the adjournment.
III.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken by the board of directors
may be taken without a meeting, provided that all members of the board
individually or collectively consent in writing to that action. Such action by
written consent shall have the same force and effect as a unanimous vote of the
board of directors. Such written consent and any counterparts thereof shall be
filed with the minutes of the proceedings of the board of directors.
III.15 FEES AND COMPENSATION OF DIRECTORS
Directors and members of committees may receive such compensation, if
any, for their services and such reimbursement of expenses as may be fixed or
determined by resolution of the board of directors. This Section 3.15 shall not
be construed to preclude any director from serving the corporation in any other
capacity as an officer, agent, employee or otherwise and receiving compensation
for those services.
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III.16 APPROVAL OF LOANS TO OFFICERS
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or any of its
subsidiaries, including any officer or employee who is a director of the
corporation or any of its subsidiaries, whenever, in the judgment of the
directors, such loan, guaranty or assistance may reasonably be expected to
benefit the corporation. The loan, guaranty or other assistance may be with or
without interest and may be unsecured, or secured in such manner as the board of
directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing contained in this section shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
ARTICLE IV
COMMITTEES
IV.1 COMMITTEES OF DIRECTORS
The board of directors may, by resolution adopted by a majority of the
authorized number of directors, designate one (1) or more committees, each
consisting of one (1) or more directors, to serve at the pleasure of the board.
The board may designate one (1) or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The appointment of members or alternate members of a committee
requires the vote of a majority of the authorized number of directors. Any
committee, to the extent provided in the resolution of the board, shall have and
may exercise all the powers and authority of the board, but no such committee
shall have the power or authority to (i) amend the certificate of incorporation
(except that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by the board
of directors as provided in Section 151(a) of the General Corporation Law of
Delaware, fix the designations and any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the corporation), (ii) adopt an agreement of
merger or consolidation under Sections 251 or 252 of the General Corporation Law
of Delaware, (iii) recommend to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, (iv)
recommend to the stockholders a dissolution of the corporation or a revocation
of a dissolution or (v) amend the bylaws of the corporation; and, unless the
board resolution establishing the committee, the bylaws or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of Delaware.
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IV.2 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the following provisions of Article III of these
bylaws: Section 3.6 (place of meetings; meetings by telephone), Section 3.8
(regular meetings), Section 3.9 (special meetings; notice), Section 3.10
(quorum), Section 3.11 (waiver of notice), Section 3.12 (adjournment), Section
3.13 (notice of adjournment) and Section 3.14 (board action by written consent
without meeting), with such changes in the context of those bylaws as are
necessary to substitute the committee and its members for the board of directors
and its members; provided, however, that the time of regular meetings of
committees may be determined either by resolution of the board of directors or
by resolution of the committee, that special meetings of committees may also be
called by resolution of the board of directors, and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these bylaws.
IV.3 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report
the same to the board of directors when required.
ARTICLE V
OFFICERS
V.1 OFFICERS
The Corporate Officers of the corporation shall be a chief executive
officer, a president, a secretary and a chief financial officer. The corporation
may also have, at the discretion of the board of directors, a chairman of the
board, one or more vice presidents (however denominated), one or more assistant
secretaries, one or more assistant treasurers, and such other officers as may be
appointed in accordance with the provisions of Section 5.3 of these bylaws. Any
number of offices may be held by the same person.
In addition to the Corporate Officers of the Company described above,
there may also be such Administrative Officers of the corporation as may be
designated and appointed from time to time by the chief executive officer of the
corporation in accordance with the provisions of Section 5.13 of these bylaws.
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V.2 ELECTION OF OFFICERS
The Corporate Officers of the corporation, except such officers as may
be appointed in accordance with the provisions of Section 5.3 or Section 5.5 of
these bylaws, shall be chosen by the board of directors, subject to the rights,
if any, of an officer under any contract of employment, and shall hold their
respective offices for such terms as the board of directors may from time to
time determine.
V.3 SUBORDINATE OFFICERS
The board of directors may appoint, or may empower the chief executive
officer to appoint, such executive officers who are not Corporate Officers as
the business of the corporation may require, each of whom shall hold office for
such period, have such power and authority, and perform such duties as are
provided in these bylaws or as the board of directors may from time to time
determine.
The chief executive officer may from time to time designate and appoint
Administrative (or non-executive) Officers of the corporation in accordance with
the provisions of Section 5.13 of these bylaws.
V.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an executive officer under any
contract of employment, any executive officer may be removed, either with or
without cause, by the board of directors at any regular or special meeting of
the board or, except in case of an executive officer chosen by the board of
directors, by any Corporate Officer upon whom such power of removal may be
conferred by the board of directors.
Any executive officer may resign at any time by giving written notice
to the corporation. Any resignation shall take effect at the date of the receipt
of that notice or at any later time specified in that notice; and, unless
otherwise specified in that notice, the acceptance of the resignation shall not
be necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the executive
officer is a party.
Any Administrative (or non-executive) Officer may be removed, either
with or without cause, at any time by the chief executive officer. Any
Administrative (or non-executive) Officer may resign at any time by giving
written notice to the chief executive officer or to the secretary of the
corporation.
V.5 VACANCIES IN OFFICES
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to that office.
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V.6 CHAIRMAN OF THE BOARD
The chairman of the board, if such an officer be elected, shall, if
present, preside at meetings of the board of directors and exercise such other
powers and perform such other duties as may from time to time be assigned to him
or her by the board of directors or as may be prescribed by these bylaws. If
there is no chairman of the board, then the chief executive officer of the
corporation shall have the powers and duties prescribed herein.
V.7 CHIEF EXECUTIVE OFFICER
Subject to such supervisory powers, if any, as may be given by the
board of directors to the chairman of the board, if there be such an officer,
the chief executive officer of the corporation shall, subject to the control of
the board of directors, have general supervision, direction and control of the
business and the officers of the corporation. He or she shall preside at all
meetings of the stockholders and, in the absence or nonexistence of a chairman
of the board, at all meetings of the board of directors. He or she shall have
the general powers and duties of management usually vested in the chief
executive officer of a corporation, and shall have such other powers and perform
such other duties as may be prescribed by the board of directors or these
bylaws.
V.8 PRESIDENT AND CHIEF OPERATING OFFICER
Subject to such supervisory powers, if any, as may be given by the
board of directors to the chairman and chief executive officer, if there be such
an officer, the president and chief operating officer of the corporation shall,
subject to the control of the board of directors, have general supervision over
the operation of the corporation, including the general powers and duties of
management usually vested in the office of president of a corporation, and shall
have such other powers and perform such other duties as may be prescribed by the
board of directors or these bylaws.
V.9 VICE PRESIDENTS
In the absence or disability of the president, and if there is no
chairman of the board, the vice presidents, if any, in order of their rank as
fixed by the board of directors or, if not ranked, a vice president designated
by the board of directors, shall perform all the duties of the chief executive
officer and when so acting shall have all the powers of, and be subject to all
the restrictions upon, the chief executive officer. The vice presidents shall
have such other powers and perform such other duties as from time to time may be
prescribed for them respectively by the board of directors, these bylaws, the
chief executive officer or the chairman of the board.
V.10 SECRETARY
The secretary shall keep or cause to be kept, at the principal
executive office of the corporation or such other place as the board of
directors may direct, a book of minutes of all meetings and actions of the board
of directors, committees of directors and stockholders. The minutes shall show
the time
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and place of each meeting, whether regular or special (and, if special, how
authorized and the notice given), the names of those present at directors'
meetings or committee meetings, the number of shares present or represented at
stockholders' meetings and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the corporation's
transfer agent or registrar, as determined by resolution of the board of
directors, a share register or a duplicate share register, showing the names of
all stockholders and their addresses, the number and classes of shares held by
each, the number and date of certificates evidencing such shares and the number
and date of cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the board of directors required to be given by law or
by these bylaws. He or she shall keep the seal of the corporation, if one be
adopted, in safe custody and shall have such other powers and perform such other
duties as may be prescribed by the board of directors or by these bylaws.
V.11 CHIEF FINANCIAL OFFICER
The chief financial officer shall keep and maintain, or cause to be
kept and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings and shares. The books of account shall at all reasonable times
be open to inspection by any director for a purpose reasonably related to his
position as a director.
The chief financial officer shall deposit all money and other valuables
in the name and to the credit of the corporation with such depositaries as may
be designated by the board of directors. He or she shall disburse the funds of
the corporation as may be ordered by the board of directors, shall render to the
president and directors, whenever they request it, an account of all of his or
her transactions as chief financial officer and of the financial condition of
the corporation, and shall have such other powers and perform such other duties
as may be prescribed by the board of directors or these bylaws.
V.12 ASSISTANT SECRETARY
The assistant secretary, if any, or, if there is more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his or her inability or refusal
to act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
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V.13 ADMINISTRATIVE OFFICERS
In addition to the Corporate Officers of the corporation as provided in
Section 5.1 of these bylaws and such subordinate Corporate Officers as may be
appointed in accordance with Section 5.3 of these bylaws, there may also be such
Administrative (or non-executive) Officers of the corporation as may be
designated and appointed from time to time by the chief executive officer of the
corporation. Administrative Officers shall perform such duties and have such
powers as from time to time may be determined by the chief executive officer or
the board of directors in order to assist the Corporate Officers in the
furtherance of their duties. In the performance of such duties and the exercise
of such powers, however, such Administrative Officers shall have limited
authority to act on behalf of the corporation as the board of directors shall
establish, including but not limited to limitations on the dollar amount and on
the scope of agreements or commitments that may be made by such Administrative
Officers on behalf of the corporation, which limitations may not be exceeded by
such individuals or altered by the chief executive officer without further
approval by the board of directors.
V.14 AUTHORITY AND DUTIES OF OFFICERS
In addition to the foregoing powers, authority and duties, all officers
of the corporation shall respectively have such authority and powers and perform
such duties in the management of the business of the corporation as may be
designated from time to time by the board of directors.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS
VI.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner
permitted by the General Corporation Law of Delaware as the same now exists or
may hereafter be amended, indemnify any person against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred in connection with any threatened, pending or completed
action, suit, or proceeding in which such person was or is a party or is
threatened to be made a party by reason of the fact that such person is or was a
director or officer of the corporation. For purposes of this Section 6.1, a
"director" or "officer" of the corporation shall mean any person (i) who is or
was a director or officer of the corporation, (ii) who is or was serving at the
request of the corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, or (iii) who was a
director or officer of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation.
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The corporation shall be required to indemnify a director or officer in
connection with an action, suit, or proceeding (or part thereof) initiated by
such director or officer only if the initiation of such action, suit, or
proceeding (or part thereof) by the director or officer was authorized by the
board of Directors of the corporation.
The corporation shall pay the expenses (including attorney's fees)
incurred by a director or officer of the corporation entitled to indemnification
hereunder in defending any action, suit or proceeding referred to in this
Section 6.1 in advance of its final disposition; provided, however, that payment
of expenses incurred by a director or officer of the corporation in advance of
the final disposition of such action, suit or proceeding shall be made only upon
receipt of an undertaking by the director or officer to repay all amounts
advanced if it should ultimately be determined that the director or officer is
not entitled to be indemnified under this Section 6.1 or otherwise.
The rights conferred on any person by this Article shall not be
exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the corporation's Certificate of Incorporation,
these bylaws, agreement, vote of the stockholders or disinterested directors or
otherwise.
Any repeal or modification of the foregoing provisions of this Article
shall not adversely affect any right or protection hereunder of any person in
respect of any act or omission occurring prior to the time of such repeal or
modification.
VI.2 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the maximum extent and in the
manner permitted by the General Corporation Law of Delaware as the same now
exists or may hereafter be amended, to indemnify any person (other than
directors and officers) against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement actually and reasonably incurred in
connection with any threatened, pending or completed action, suit, or
proceeding, in which such person was or is a party or is threatened to be made a
party by reason of the fact that such person is or was an employee or agent of
the corporation. For purposes of this Section 6.2, an "employee" or "agent" of
the corporation (other than a director or officer) shall mean any person (i) who
is or was an employee or agent of the corporation, (ii) who is or was serving at
the request of the corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or (iii) who was an
employee or agent of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation.
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VI.3 INSURANCE
The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify him or her
against such liability under the provisions of the General Corporation Law of
Delaware.
VI.4 SAVINGS CLAUSE
If this Article VI or any portion thereof shall be invalidated on any
ground by any court of competent jurisdiction, then the corporation shall
nevertheless indemnify each director, officer, employee or agent of the
corporation against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement with respect to any action, suit, proceeding or
investigation, whether civil, criminal or administrative, and whether internal
or external, including a grand jury proceeding and an action or suit brought by
or in the right of the corporation, to the full extent permitted by any
applicable portion of this Article that shall not have been invalidated, or by
any other applicable law.
VI.5 CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VI shall, unless otherwise prided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE VII
RECORDS AND REPORTS
VII.1 MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive office or at
such place or places as designated by the board of directors, keep a record of
its stockholders listing their names and addresses and the number and class of
shares held by each stockholder, a copy of these bylaws as amended to date,
accounting books and other records of its business and properties.
Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books
18
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and records and to make copies or extracts therefrom. A proper purpose shall
mean a purpose reasonably related to such person's interest as a stockholder. In
every instance where an attorney or other agent is the person who seeks the
right to inspection, the demand under oath shall be accompanied by a power of
attorney or such other writing that authorizes the attorney or other agent to so
act on behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
VII.2 INSPECTION BY DIRECTORS
Any director shall have the right to examine the corporation's stock
ledger, a list of its stockholders and its other books and records for a purpose
reasonably related to his or her position as a director.
VII.3 ANNUAL STATEMENT TO STOCKHOLDERS
The board of directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the business and condition of the corporation.
VII.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairman of the board, if any, the president, any vice president,
the chief financial officer, the secretary or any assistant secretary of this
corporation, or any other person authorized by the board of directors or the
president or a vice president, is authorized to vote, represent and exercise on
behalf of this corporation all rights incident to any and all shares of the
stock of any other corporation or corporations standing in the name of this
corporation. The authority herein granted may be exercised either by such person
directly or by any other person authorized to do so by proxy or power of
attorney duly executed by such person having the authority.
VII.5 CERTIFICATION AND INSPECTION OF BYLAWS
The original or a copy of these bylaws, as amended or otherwise altered
to date, certified by the secretary, shall be kept at the corporation's
principal executive office and shall be open to inspection by the stockholders
of the corporation, at all reasonable times during office hours.
19
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ARTICLE VIII
GENERAL MATTERS
VIII.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING
For purposes of determining the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the board of directors may fix, in advance, a record date, which shall not
precede the date upon which the resolution fixing the record date is adopted and
which shall not be more than sixty (60) days before any such action. In that
case, only stockholders of record at the close of business on the date so fixed
are entitled to receive the dividend, distribution or allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of any
shares on the books of the corporation after the record date so fixed, except as
otherwise provided by law.
If the board of directors does not so fix a record date, then the
record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the board of directors adopts the
applicable resolution.
VIII.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS
From time to time, the board of directors shall determine by resolution
which person or persons may sign or endorse all checks, drafts, other orders for
payment of money, notes or other evidences of indebtedness that are issued in
the name of or payable to the corporation, and only the persons so authorized
shall sign or endorse those instruments.
VIII.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED
The board of directors, except as otherwise provided in these bylaws,
may authorize and empower any officer or officers, or agent or agents, to enter
into any contract or execute any instrument in the name of and on behalf of the
corporation; such power and authority may be general or confined to specific
instances. Unless so authorized or ratified by the board of directors or within
the agency power of an officer, no officer, agent or employee shall have any
power or authority to bind the corporation by any contract or engagement or to
pledge its credit or to render it liable for any purpose or for any amount.
VIII.4 STOCK CERTIFICATES; TRANSFER; PARTLY PAID SHARES
The shares of the corporation shall be represented by certificates,
provided that the board of directors of the corporation may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the
corporation. Notwithstanding the adoption of such a resolution by the board of
directors, every holder of stock represented by certificates and, upon request,
every holder of uncertificated shares, shall be entitled to have a certificate
signed by, or in the name of the corporation by, the chairman or vice-chairman
of the board of directors, or the president or vice-president, and by the
treasurer or an assistant
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<PAGE>
treasurer, or the secretary or an assistant secretary of such corporation
representing the number of shares registered in certificate form. Any or all of
the signatures on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate has ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the corporation
with the same effect as if he or she were such officer, transfer agent or
registrar at the date of issue.
Certificates for shares shall be of such form and device as the board
of directors may designate and shall state the name of the record holder of the
shares represented thereby; its number; date of issuance; the number of shares
for which it is issued; a summary statement or reference to the powers,
designations, preferences or other special rights of such stock and the
qualifications, limitations or restrictions of such preferences and/or rights,
if any; a statement or summary of liens, if any; a conspicuous notice of
restrictions upon transfer or registration of transfer, if any; a statement as
to any applicable voting trust agreement; if the shares be assessable, or, if
assessments are collectible by personal action, a plain statement of such facts.
Upon surrender to the secretary or transfer agent of the corporation of
a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
The corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid shares, or upon the books and records of the corporation in
the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid shares, the corporation shall
declare a dividend upon partly paid shares of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon.
VIII.5 SPECIAL DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more than one class of stock
or more than one series of any class, then the powers, the designations, the
preferences and the relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock; provided, however, that,
except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that the corporation shall issue to represent
such class or series of stock a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, the designations,
the preferences and the relative, participating, optional or other special
rights of each
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class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
VIII.6 LOST CERTIFICATES
Except as provided in this Section 8.6, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the corporation and cancelled at the same time. The board of
directors may, in case any share certificate or certificate for any other
security is lost, stolen or destroyed, authorize the issuance of replacement
certificates on such terms and conditions as the board may require; the board
may require indemnification of the corporation secured by a bond or other
adequate security sufficient to protect the corporation against any claim that
may be made against it, including any expense or liability, on account of the
alleged loss, theft or destruction of the certificate or the issuance of the
replacement certificate.
VIII.7 TRANSFER AGENTS AND REGISTRARS
The board of directors may appoint one or more transfer agents or
transfer clerks, and one or more registrars, each of which shall be an
incorporated bank or trust company -- either domestic or foreign, who shall be
appointed at such times and places as the requirements of the corporation may
necessitate and the board of directors may designate.
VIII.8 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of
construction and definitions in the General Corporation Law of Delaware shall
govern the construction of these bylaws. Without limiting the generality of this
provision, as used in these bylaws, the singular number includes the plural, the
plural number includes the singular, and the term "person" includes both an
entity and a natural person.
ARTICLE IX
AMENDMENTS
The original or other bylaws of the corporation may be adopted, amended
or repealed by the stockholders entitled to vote; provided, however, that the
corporation may, in its certificate of incorporation, confer the power to adopt,
amend or repeal bylaws upon the directors. The fact that such power has been so
conferred upon the directors shall not divest the stockholders of the power, nor
limit their power to adopt, amend or repeal bylaws.
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Whenever an amendment or new bylaw is adopted, it shall be copied in
the book of bylaws with the original bylaws, in the appropriate place. If any
bylaw is repealed, the fact of repeal with the date of the meeting at which the
repeal was enacted or the filing of the operative written consent(s) shall be
stated in said book.
23
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AMENDED AND RESTATED
BYLAWS
OF
ADVENT SOFTWARE, INC.
(a Delaware corporation)
(Amended as of November 19, 1999)
<PAGE>
AMENDED AND RESTATED
BYLAWS OF
ADVENT SOFTWARE, INC.
(a Delaware corporation)
TABLE OF CONTENTS
Page
ARTICLE I CORPORATE OFFICES...................................................1
1.1 REGISTERED OFFICE....................................................1
1.2 OTHER OFFICES........................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS...........................................1
2.1 PLACE OF MEETINGS....................................................1
2.2 ANNUAL MEETING.......................................................1
2.3 SPECIAL MEETING......................................................2
2.4 NOTICE OF STOCKHOLDERS' MEETINGS.....................................2
2.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS......2
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.........................3
2.7 QUORUM...............................................................4
2.8 ADJOURNED MEETING; NOTICE............................................4
2.9 VOTING...............................................................4
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING..............5
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING...........................5
2.12 PROXIES..............................................................5
2.13 ORGANIZATION.........................................................6
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE................................6
ARTICLE III DIRECTORS.........................................................6
3.1 POWERS...............................................................6
3.2 NUMBER OF DIRECTORS..................................................7
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS.............................7
3.4 RESIGNATION AND VACANCIES............................................7
3.5 REMOVAL OF DIRECTORS.................................................8
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE.............................8
3.7 FIRST MEETINGS.......................................................8
3.8 REGULAR MEETINGS.....................................................9
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3.9 SPECIAL MEETINGS; NOTICE.............................................9
3.10 QUORUM...............................................................9
3.11 WAIVER OF NOTICE....................................................10
3.12 ADJOURNMENT.........................................................10
3.13 NOTICE OF ADJOURNMENT...............................................10
3.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING...................10
3.15 FEES AND COMPENSATION OF DIRECTORS..................................10
3.16 APPROVAL OF LOANS TO OFFICERS.......................................11
ARTICLE IV COMMITTEES........................................................11
4.1 COMMITTEES OF DIRECTORS.............................................11
4.2 MEETINGS AND ACTION OF COMMITTEES...................................12
4.3 COMMITTEE MINUTES...................................................12
ARTICLE V OFFICERS...........................................................12
5.1 OFFICERS............................................................12
5.2 ELECTION OF OFFICERS................................................13
5.3 SUBORDINATE OFFICERS................................................13
5.4 REMOVAL AND RESIGNATION OF OFFICERS.................................13
5.5 VACANCIES IN OFFICES................................................13
5.6 CHAIRMAN OF THE BOARD...............................................14
5.7 CHIEF EXECUTIVE OFFICER.............................................14
5.8 PRESIDENT AND CHIEF OPERATING OFFICER...............................14
5.9 VICE PRESIDENTS.....................................................14
5.10 SECRETARY...........................................................14
5.11 CHIEF FINANCIAL OFFICER.............................................15
5.12 ASSISTANT SECRETARY.................................................15
5.13 ADMINISTRATIVE OFFICERS.............................................16
5.14 AUTHORITY AND DUTIES OF OFFICERS....................................16
ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS16
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS...........................16
6.2 INDEMNIFICATION OF OTHERS...........................................17
6.3 INSURANCE...........................................................17
6.4 SAVINGS CLAUSE......................................................18
6.5 CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES........18
ARTICLE VII RECORDS AND REPORTS..............................................18
7.1 MAINTENANCE AND INSPECTION OF RECORDS...............................18
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7.2 INSPECTION BY DIRECTORS.............................................19
7.3 ANNUAL STATEMENT TO STOCKHOLDERS....................................19
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS......................19
7.5 CERTIFICATION AND INSPECTION OF BYLAWS..............................19
ARTICLE VIII GENERAL MATTERS.................................................20
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING...............20
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS...........................20
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED..................20
8.4 STOCK CERTIFICATES; TRANSFER; PARTLY PAID SHARES....................20
8.5 SPECIAL DESIGNATION ON CERTIFICATES.................................21
8.6 LOST CERTIFICATES...................................................22
8.7 TRANSFER AGENTS AND REGISTRARS......................................22
8.8 CONSTRUCTION; DEFINITIONS...........................................22
ARTICLE IX AMENDMENTS........................................................23
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EXHIBIT 10.15
405 LEXINGTON, L.L.C.,
Landlord
and
ADVENT SOFTWARE, INC.,
Tenant
--------------------
LEASE
--------------------
Premises: A Portion of the 31st Floor
and the Entire 30th Floor
666 Third Avenue
New York, New York
Dated: July 22, 1999
<PAGE>
TABLE OF CONTENTS
ARTICLE 1 BASIC LEASE PROVISIONS...............................................1
ARTICLE 2 PREMISES, TERM, RENT.................................................3
ARTICLE 3 USE AND OCCUPANCY....................................................4
ARTICLE 4 CONDITION OF THE PREMISES............................................6
ARTICLE 5 ALTERATIONS..........................................................9
ARTICLE 6 FLOOR LOAD..........................................................13
ARTICLE 7 REPAIRS.............................................................13
ARTICLE 8 INCREASES IN TAXES AND OPERATING EXPENSES...........................15
ARTICLE 9 REQUIREMENTS OF LAW.................................................22
ARTICLE 10 SUBORDINATION......................................................25
ARTICLE 11 SERVICES...........................................................28
ARTICLE 12 INSURANCE; PROPERTY LOSS OR DAMAGE; REIMBURSEMENT..................31
ARTICLE 13 DESTRUCTION - FIRE OR OTHER CAUSE..................................34
ARTICLE 14 EMINENT DOMAIN.....................................................37
ARTICLE 15 ASSIGNMENT AND SUBLETTING..........................................39
ARTICLE 16 ELECTRICITY........................................................46
ARTICLE 17 ACCESS TO PREMISES.................................................48
ARTICLE 18 DEFAULT............................................................50
ARTICLE 19 REMEDIES AND DAMAGES...............................................52
ARTICLE 20 LANDLORD'S RIGHT TO CURE; FEES AND EXPENSES........................54
ARTICLE 21 NO REPRESENTATIONS BY LANDLORD: LANDLORD'S APPROVAL................55
ARTICLE 22 END OF TERM........................................................56
ARTICLE 23 QUIET ENJOYMENT....................................................57
ARTICLE 24 NO SURRENDER; NO WAIVER............................................57
ARTICLE 25 WAIVER OF TRIAL BY JURY............................................58
ARTICLE 26 INABILITY TO PERFORM...............................................59
ARTICLE 27 NOTICES............................................................59
ARTICLE 28 RULES AND REGULATIONS..............................................60
ARTICLE 29 PARTNERSHIP TENANT.................................................60
ARTICLE 30 VAULT SPACE........................................................62
ARTICLE 31 BROKER.............................................................62
ARTICLE 32 INDEMNITY..........................................................63
ARTICLE 33 ADJACENT EXCAVATION; SHORING.......................................64
ARTICLE 34 TAX STATUS OF BENEFICIAL OWNERS....................................64
ARTICLE 35 SECURITY DEPOSIT...................................................65
ARTICLE 36 MISCELLANEOUS......................................................67
ARTICLE 37 RENEWAL OPTION.....................................................71
ARTICLE 38 RIGHT OF FIRST OFFER...............................................73
ARTICLE 39 ARBITRATION........................................................76
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EXHIBITS:
A - Floor Plans
B - Definitions
C - Description of Landlord's Work
D - Description of Building Work
E - Heating, Ventilation and Air Conditioning Specifications
F - Cleaning Specifications
G - Rules and Regulations
H - Nondisturbance Agreement
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<PAGE>
LEASE
LEASE, made as of the 22nd day of July, 1999 between 405 LEXINGTON, L.L.C.,
a Delaware limited liability company (the "Landlord"), having an office c/o
Tishman Speyer Properties, L.P., 520 Madison Avenue, New York, New York 10022,
and ADVENT SOFTWARE, INC., a Delaware corporation (the "Tenant"), having an
office at 301 Brannan Street, San Francisco, California 94107.
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1
BASIC LEASE PROVISIONS
PREMISES A portion of the 31st floor and the entire 30th floor
of the Building, substantially as shown hatched on
Exhibits A-1 and A-2, respectively.
BUILDING The building, fixtures, equipment and other improvements
and appurtenances now located or hereafter erected,
located or placed upon the land known as 666 Third
Avenue, New York, New York.
REAL PROPERTY The Building, together with the plot of land upon which
it stands.
CONSTRUCTION PERIOD The date after August 31, 1999 which is the earlier to
START DATE occur of (a) the date upon which Landlord delivers
possession of the Premises to Tenant with all items of
Landlord's Work (other than item 8) Substantially
Completed in accordance with the terms of this Lease, and
(b) the date Tenant (or any person claiming by, through
or under Tenant) occupies any part of the Premises for
the construction of Tenant's Initial Installations.
RENT COMMENCEMENT The date which is the six-month anniversary of the
DATE Construction Period Start Date.
OCCUPANCY DATE Tenant shall not occupy the Premises for the conduct
of its business prior to January 1, 2000.
<PAGE>
EXPIRATION DATE The date which is the last day of the month in which
the 10th anniversary of the Rent Commencement Date
occurs, or, if the term of this Lease shall be extended
in accordance with any express provision hereof, the
last day of any renewal or extended term.
TERM The period commencing on the Construction Period Start
Date and ending on the Expiration Date.
PERMITTED USES Executive and general offices (including, without
limitation, software research and development), and such
ancillary uses as shall be reasonably required in
connection therewith, which uses shall always be
consistent with the operation of first-class office
buildings in midtown Manhattan.
BASE TAX YEAR The Tax Year commencing on July 1, 1999 and ending on
June 30, 2000, subject to Section 8.1(c).
BASE EXPENSE YEARS Calendar years 1999 and 2000.
TENANT'S 4.183 percent.
PROPORTIONATE SHARE
AGREED AREA OF 712,231 rentable square feet.
BUILDING
AGREED 29,792 rentable square feet, as mutually determined by
AREA OF PREMISES Landlord and Tenant for purposes of this Lease, without
any representation by Landlord whatsoever as to the
actual square feet contained in the Premises or the
Building or any portions thereof.
FIXEDRENT (i) $1,459,808 per annum ($121,650.67 per month) for the
period commencing on the Rent Commencement Date and ending
on the day preceding the 5th anniversary of the Rent
Commencement Date, both dates inclusive; and
(ii) $1,549,184 per annum ($129,098.67 per month) for
the period commencing on the 5th anniversary of the Rent
Commencement Date and ending on the Expiration Date, both
dates inclusive.
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ADDITIONAL RENT All sums other than Fixed Rent payable by Tenant to
Landlord under this Lease, including Tenant's Tax
Payment, Tenant's Operating Payment, late charges,
overtime or excess service charges, and interest and
other costs related to Tenant's failure to perform any of
its obligations under this Lease.
RENT Fixed Rent and Additional Rent, collectively.
INTEREST RATE The lesser of (i) two percent per annum above the then
current Base Rate charged by Citibank, N.A. or its
successor, or (ii) the maximum rate permitted by
applicable law.
SECURITY DEPOSIT $243,301.33.
BROKER Julien J. Studley, Inc.
LANDLORD'S AGENT Tishman Speyer Properties, L.P. or any other person
designated at any time and from time to time by Landlord
as Landlord's Agent and their successors and assigns.
LANDLORD'S $1,213,680.
CONTRIBUTION
All capitalized terms used in the text of this Lease without definition are
defined in this Article 1 or in Exhibit B.
ARTICLE 2
PREMISES, TERM, RENT
Section 2.1 Lease of Premises. Subject to the terms of this Lease, Landlord
leases to Tenant and Tenant leases from Landlord the Premises for the Term.
Notwithstanding anything to the contrary contained in this Lease, all
obligations of Tenant under this Lease relating to or arising out of the
Premises shall commence on the Construction Period Start Date, provided, Tenant
shall have no obligation to pay Fixed Rent, Tenant's Tax Payment and Tenant's
Operating Payment other than as provided in the applicable provisions of this
Lease. In addition, Landlord grants to Tenant the right to use, on a
non-exclusive basis and in common with other tenants, the lobby area and other
Building common elements and common facilities.
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Section 2.2 Payment of Rent. Tenant shall pay to Landlord, without notice
or demand, and without any set-off, counterclaim, abatement or deduction
whatsoever, except as may be expressly set forth in this Lease, in lawful money
of the United States by wire transfer of funds to Landlord's account, as
designated by Landlord, or by check drawn upon a bank which is a member of the
New York Clearing House Association or other bank reasonably approved by
Landlord: (i) Fixed Rent in equal monthly installments, in advance, on the first
(1st) day of each calendar month during the Term, commencing on the Rent
Commencement Date, and (ii) Additional Rent, at the times and in the manner set
forth in this Lease. If the Rent Commencement Date is not the first day of a
month, then on the Rent Commencement Date Tenant shall pay Fixed Rent for the
period from the Rent Commencement Date through the last day of such month.
Section 2.3 Interest. If Tenant shall fail to pay any installment or other
payment of Rent when due, interest shall accrue on such installment or payment
as a late charge, from the date such installment or payment became due until the
date paid at the Interest Rate.
ARTICLE 3
USE AND OCCUPANCY
Section 3.1 (a) Permitted Uses. Tenant shall use and occupy the Premises
for the Permitted Uses and for no other purpose. Tenant shall not use or occupy
or permit the use or occupancy of any part of the Premises in a manner
constituting a Prohibited Use. If Tenant uses or suffers the use of the Premises
for a purpose which constitutes a Prohibited Use or violates any Requirement, or
which causes the Building to be in violation of any Requirement, then Tenant
shall promptly discontinue such use upon notice of such violation. Tenant's
failure to promptly (and, in all events, within 10 days after such notice)
discontinue such use shall be a material default hereunder and Landlord shall
have the right, without Tenant having any further period in which to cure, (i)
to terminate this Lease immediately, and (ii) to exercise any and all rights and
remedies available to Landlord at law or in equity.
(b) Licenses and Permits. Tenant, at its expense, shall obtain
and at all times maintain and comply with the terms and conditions of all
licenses and permits required for the lawful conduct of the Permitted Uses in
the Premises. Landlord represents that the certificate of occupancy issued for
the Building permits the use of the Premises as offices. Landlord shall not,
without Tenant's approval, amend during the Term the certificate of occupancy in
effect for the Building to (i) change the use provided therein of the floors of
the Building where the Premises are located in respect of the Premises if the
effect of such change would prevent Tenant from using the Premises for offices,
(ii) reduce the permitted floor load provided therein of the floors of the
Building where the Premises are located, or (iii) reduce the number of persons
permitted therein to occupy any floor of the Building where the Premises are
located.
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Section 3.2 Delivery of Premises. (a) Landlord shall not be liable for
failure to deliver possession of the Premises on any specified date, and such
failure shall not impair the validity of the Lease. Landlord shall provide
Tenant with at least 10 Business Days' prior notice of the date Landlord
reasonably anticipates will be the Construction Period Start Date. Landlord
shall be deemed to have delivered possession of the Premises to Tenant upon the
giving of notice by Landlord to Tenant stating that the Premises are vacant, in
the condition required under this Lease, and available for Tenant's occupancy.
There shall be no postponement of the Construction Period Start Date (or the
Rent Commencement Date) for (i) any delay in the delivery of possession of the
Premises to Tenant which results from any Tenant Delay or (ii) any delay by
Landlord in the performance of any Punch List Items relating to Landlord's Work.
Landlord shall complete such Punch List Items, of which Tenant notifies Landlord
within 10 days after Substantial Completion of the applicable work in connection
therewith, and remedy any latent defects in Landlord's Work which Tenant could
not with reasonable diligence have discovered when Landlord delivered the
Premises to Tenant, of which Tenant notifies Landlord within 12 months after
Substantial Completion of the applicable work in connection therewith, within 60
days after Tenant gives Landlord any such notice. The provisions of this Section
3.2 are intended to constitute "an express provision to the contrary" within the
meaning of Section 223-a of the New York Real Property Law or any successor
Requirement.
(b) If Landlord fails to Substantially Complete Landlord's Work on or
before March 1, 2000, which date shall be subject to extension for any Tenant
Delay and Unavoidable Delay, then, as Tenant's exclusive remedy with respect
thereto other than as provided in Section 3.2(c) below, Tenant shall receive a
credit (without duplication if more than one item of Landlord's Work is not
Substantially Complete) of $1,999.74 per day to be applied against the first
installments of Fixed Rent payable hereunder, commencing on the Rent
Commencement Date, for each day in the period commencing on March 1, 2000 (as
extended by Tenant Delay and Unavoidable Delay) and ending on the date all items
of Landlord's Work are Substantially Complete.
(c) If Landlord is unable for any reason to deliver possession of the
Premises with the Landlord's Work (other than item 8) Substantially Complete on
or before September 1, 2000, as extended by Unavoidable Delays (the "Outside
Delivery Date"), Tenant shall have the right within 30 days after the Outside
Delivery Date, as its sole and exclusive remedy therefor, to cancel this Lease
by giving notice of cancellation to Landlord. If Tenant timely delivers the
aforesaid cancellation notice, this Lease shall terminate 30 days after the date
of such notice, unless Landlord delivers vacant possession of the Premises in
the condition required by this Lease within such 30-day period, in which case
Tenant's cancellation notice shall be void and this Lease shall continue in full
force and effect. Failure by Tenant to exercise such right to cancel this Lease
within such 30-day period shall constitute a waiver of such right; time being of
the essence with respect thereto.
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Section 3.3 Use of Building Name or Image. Neither Tenant nor any occupant
of the Premises shall use CHRYSLER EAST BUILDING, CHRYSLER CENTER or CHRYSLER or
any other name for the Premises as designated by Landlord or any variation,
abbreviation (including initials), or simulation thereof, or any depiction or
rendering of any recognizable feature of the Building, for any purposes
whatsoever, including for any corporate, firm or trade name, trademark, service
mark or other designation of the source or origin of merchandise or services, or
which otherwise implies affiliation with, or endorsement or sponsorship by
Landlord. However, the foregoing shall not prevent Tenant or any other permitted
occupant of the Premises from using CHRYSLER EAST BUILDING OR CHRYSLER CENTER in
a descriptive or geographically descriptive manner and without emphasis or
display, as part of Tenant's or such permitted occupant's business address or as
a geographic reference to the location of Tenant or such permitted occupant in
the ordinary course of its business, in the form "at the Chrysler East Building"
or "at the Chrysler Center."
ARTICLE 4
CONDITION OF THE PREMISES
Section 4.1 Condition. Tenant has inspected the Premises and agrees (a)
subject to Landlord's obligation under this Lease to complete Landlord's Work in
a good and workmanlike manner, to accept possession of the Premises in the "as
is" condition existing on the Construction Period Start Date, (b) that neither
Landlord nor Landlord's agents have made any representations or warranties with
respect to the Premises or the Building except as expressly set forth herein,
and (c) except for Landlord's Contribution as expressly set forth in this
Section 4.2 hereof and except for Landlord's Work described in Section 4.3,
Landlord has no obligation to perform any work, supply any materials, incur any
expense or make any alterations or improvements to the Premises to prepare the
Premises for Tenant's occupancy. Any work to be performed by Tenant in
connection with Tenant's initial occupancy of the Premises shall be referred to
hereinafter as the "Initial Installations". Tenant's occupancy of any part of
the Premises for the conduct of its ordinary business shall be conclusive
evidence, as against Tenant, that Landlord has Substantially Completed any work
to be performed by Landlord under this Lease, Tenant has accepted possession of
the Premises in its then current condition and at the time such possession was
taken, the Premises were in a good and satisfactory condition as required by
this Lease. Landlord shall complete Punch List Items and correct latent defects
as provided in Section 3.2(a).
Section 4.2 Landlord's Contribution. (a) Landlord agrees to pay to Tenant
an amount not to exceed Landlord's Contribution toward the cost of the Initial
Installations (excluding any "soft costs" (other than architectural,
engineering, permit and construction consulting fees not in excess of $119,172)
and Tenant's Property (other than the cost of Tenant's moveable walls and
partitions)), provided that as of the date on which Landlord is
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required to make payment thereof pursuant to Section 4.2(b): (i) this Lease is
in full force and effect, and (ii) no Event of Default then exists. Accordingly,
Tenant may use any amount of Landlord's Contribution to purchase and install
moveable walls and partitions. Tenant shall pay all costs of the Initial
Installations in excess of Landlord's Contribution. Landlord's Contribution
shall be payable solely on account of labor directly related to the Initial
Installations and materials delivered to the Premises in connection with the
Initial Installations (excluding any "soft costs" (other than architectural,
engineering, permit and construction consulting fees not in excess of $119,172)
and Tenant's Property (other than the cost of Tenant's moveable walls and
partitions)). Tenant shall not be entitled to receive any portion of Landlord's
Contribution not actually expended by Tenant in the performance of the Initial
Installations in accordance with this Section 4.2, nor shall Tenant have any
right to apply any unexpended portion of Landlord's Contribution as a credit
against Rent or any other obligation of Tenant hereunder. Upon the completion of
the Initial Installations and satisfaction of the conditions set forth in this
Section 4.2, any amount of Landlord's Contribution which has not been previously
disbursed shall be retained by Landlord; provided, however, that notwithstanding
anything contained herein to the contrary, the applicable portion of such
retained amounts shall continue to be held for the benefit of Tenant by Landlord
if Tenant delivers a notice to Landlord prior to satisfaction of the conditions
set forth in this Section 4.2 that it is in dispute with any contractors,
subcontractors, vendors or other providers of service and refuses to make
payments at such time or if any contracts provide for retainage which has not
then been finally paid.
(b) Landlord shall pay Landlord's Contribution to Tenant after the first
anniversary of the Rent Commencement Date following commencement of Tenant's
business operations at the Premises and the final completion of the Initial
Installations, within 30 days after submission by Tenant to Landlord of a
written requisition therefor, signed by the chief financial officer of Tenant
and accompanied by (i) copies of paid invoices covering all of the Initial
Installations, (ii) a written certification from Tenant's architect stating that
(A) the Initial Installations described on such invoices have been completed in
accordance with the plans and specifications approved by Landlord, (B) such work
has been paid in full by Tenant and (C) all contractors, subcontractors and
material suppliers have delivered to Tenant waivers of lien with respect to such
work (copies of which shall be included with such architect's certification),
(iii) proof of the satisfactory completion of all required inspections and the
issuance of any required approvals and sign-offs by Governmental Authorities
with respect thereto, (iv) final "as-built" plans and specifications for the
Initial Installations as required pursuant to Section 5.1(c), (v) final lien
waivers from all contractors, subcontractors and material suppliers covering all
of the Initial Installations, and (vi) such other documents and information as
Landlord may reasonably request, including title drawdowns and endorsements. The
right to receive Landlord's Contribution is for the exclusive benefit of Tenant,
and in no event shall such right be assigned to or be enforceable by or for the
benefit of any third party, including any contractor, subcontractor,
materialman, laborer, architect, engineer, attorney or other Person.
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Section 4.3 Landlord's Work. Landlord will commence the performance of
the work described in Exhibit C ("Landlord's Work") reasonably promptly
following the date hereof and, subject to Tenant's compliance with the
provisions of this Section 4.3, will Substantially Complete, at its sole
expense, Landlord's Work in a good and workmanlike manner consistent with the
standards applicable to the Building prior to the Construction Period Start Date
other than in the case of item 8 thereof, which item of Landlord's Work shall be
Substantially Completed prior to Tenant's occupancy of the Premises for the
conduct of its business. Landlord and its employees, contractors and agents
shall have access to the Premises at all reasonable times for the performance of
Landlord's Work and for the storage of materials reasonably required in
connection therewith, and Tenant will use all commercially reasonable efforts to
avoid any interference with the performance of Landlord's Work. Landlord shall
use reasonable efforts to minimize interference with Tenant's use and occupancy
of the Premises during the performance of item 8 of Landlord's Work, provided
that Landlord shall have no obligation to employ contractors or labor at
overtime or other premium pay rates or to incur any other overtime costs or
additional expenses whatsoever. There shall be no Rent abatement or allowance to
Tenant for a diminution of rental value, no actual or constructive eviction of
Tenant, in whole or in part, no relief from any of Tenant's other obligations
under this Lease, and no liability on the part of Landlord, by reason of
inconvenience, annoyance or injury to business arising from the performance of
such item of Landlord's Work or the storage of any materials in connection
therewith.
Section 4.4 Building Work. (a) Landlord is performing the work described in
Exhibit D (the "Building Work") and, subject to Tenant's compliance with the
provisions of Section 4.4(c), Landlord will complete the Building Work
applicable to the facade, lobby and the floors of the Building on which the
Premises are located in a good and workmanlike manner consistent with the
standards applicable to the Building. Landlord may make such modifications to
the Building Work as Landlord, in its sole discretion, deems desirable
consistent with a first-class renovated building of comparable age and quality
in midtown Manhattan.
(b) Redevelopment. Tenant hereby acknowledges that Landlord is redeveloping
the Building, including but not limited to constructing substantial additional
space on the 30th and 31st floors of the Building along with other floors of the
Building, renovating the lobby, elevator cabs and mechanical systems of the
Building. Tenant understands and acknowledges that there shall be substantial
noise and dust associated with such redevelopment.
(c) Access. Landlord and its employees, contractors and agents shall have
access to the Premises at all times, prior to the occupancy of the Premises by
Tenant for the conduct of its ordinary business, for the performance of Building
Work and for the storage of materials required in connection therewith, and
Tenant will use all commercially reasonable efforts to avoid any interference
with the performance of the Building Work. Landlord shall
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use all commercially reasonable efforts to minimize interference with Tenant's
use and occupancy of the Premises during the performance of the Building Work,
provided that Landlord shall have no obligation to employ contractors or labor
at overtime or other premium pay rates or to incur any other overtime costs or
additional expenses whatsoever. Neither Landlord nor its agents or contractors
shall be liable for any damage (including damage resulting from lost business as
well as damage to Tenant's Personal Property) which Tenant may sustain resulting
from the Building Work.
ARTICLE 5
ALTERATIONS
Section 5.1 Tenant's Alterations. (a) Tenant shall not make any
alterations, additions or other physical changes in or about the Premises,
including the Initial Installations (collectively, "Alterations"), other than
decorative Alterations such as painting, wall coverings and floor coverings
(collectively, "Decorative Alterations"), without Landlord's prior consent,
which may be withheld in Landlord's sole discretion. Notwithstanding the
foregoing, Landlord shall not unreasonably withhold its consent to Alterations
so long as such Alterations (i) are non-structural and do not adversely affect
the Building Systems, (ii) are performed only by Landlord's designated
contractors or by contractors approved by Landlord to perform such Alterations,
(iii) affect only the Premises and are not visible from outside of the Premises
or the Building, (iv) do not affect the certificate of occupancy issued for the
Building or the Premises, (v) do not adversely affect any service furnished by
Landlord to Tenant or to any other tenant of the Building and (vi) do not
violate any Requirement or cause the Premises or the Building to be
non-compliant with any Requirement.
(b) Plans and Specifications. Prior to making any Alterations, Tenant, at
its expense, shall (i) submit to Landlord for its approval, detailed plans and
specifications (including layout, architectural, mechanical, electrical,
plumbing, sprinkler and structural drawings) of each proposed Alteration (other
than Decorative Alterations and alterations of such a scope that such plans and
specifications are not required by any Requirement and would not be customary in
accordance with good construction practice), and with respect to any Alteration
affecting any Building System, Tenant shall submit proof that the Alteration has
been designed by, or reviewed and approved by, Landlord's designated engineer
for the affected Building System, (ii) obtain all permits, approvals and
certificates required by any Governmental Authorities, (iii) furnish to Landlord
duplicate original policies or certificates of worker's compensation (covering
all persons to be employed by Tenant, and Tenant's contractors and
subcontractors in connection with such Alteration) and commercial general
liability (including property damage coverage) insurance and Builder's Risk
coverage (issued on a completed value basis) all in such form, with such
companies, for such periods and in such amounts as Landlord may reasonably
require, naming Landlord, Landlord's managing
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agent, and their respective employees and agents, any Lessor and any Mortgagee
of which Tenant has notice as additional insureds and (iv) furnish to Landlord
such other evidence of Tenant's ability to complete and to fully pay for such
Alterations (other than Decorative Alterations) as is reasonably satisfactory to
Landlord. Upon Tenant's request, Landlord shall reasonably cooperate with Tenant
in obtaining any permits, approvals or certificates required to be obtained by
Tenant in connection with any permitted Alteration (if the provisions of the
applicable Requirement require that Landlord join in such application), provided
that Tenant shall reimburse Landlord for any cost, expense or liability in
connection therewith. Tenant shall give Landlord not less than 5 Business Days'
notice prior to performing any Decorative Alteration which notice shall contain
a description of such Decorative Alteration. If Landlord shall deny any request
for approval to an Alteration, Landlord shall provide Tenant with a reasonably
detailed explanation of the reason(s) for such denial. Any plans and
specifications resubmitted by Tenant to Landlord for Landlord's approval
reflecting changes or additions made to such plans and specifications as
requested by Landlord ("Tenant's Resubmission") shall be approved or denied by
Landlord, subject to Section 5.1(a), within 5 Business Days following Tenant's
Resubmission. If Landlord shall fail to respond to Tenant's request for approval
to Alterations within 15 Business Days following the submission of final and
complete plans and specifications thereof (or within 5 Business Days after
Tenant's Resubmission), as applicable, Landlord shall be deemed to have granted
such approval, provided Landlord fails to respond to Tenant within 5 Business
Days after receipt of a second notice from Tenant (which notice may only be sent
if Landlord failed to respond within said 15 or 5 Business Day period, as
aforesaid, and such notice shall expressly state in bold letters that Landlord's
failure to timely respond thereto shall be deemed approval of the Alterations
which are the subject of such notice).
(c) Governmental Approvals. Upon completion of any
Alterations, Tenant, at its expense, shall promptly obtain certificates of final
approval of such Alterations required by any Governmental Authority and shall
furnish Landlord with copies thereof, together with "as-built" plans and
specifications for such Alterations (other than Decorative Alterations) prepared
on an Autocad Computer Assisted Drafting and Design system (or such other system
or medium as Landlord may accept) using naming conventions issued by the
American Institute of Architects in June, 1990 (or such other naming convention
as Landlord may accept) and magnetic computer media of such record drawings and
specifications, translated in DXF format or another format acceptable to
Landlord.
Section 5.2 Manner and Quality of Alterations. All Alterations shall be
performed (a) in a good and workmanlike manner and free from defects, (b) in
accordance with the plans and specifications as required under Section 5.1, and
by contractors approved by Landlord, (c) under the supervision of a licensed
architect reasonably satisfactory to Landlord (other than Decorative
Alterations), and (d) in compliance with all Requirements, the terms of this
Lease, all standard procedures and regulations then prescribed by Landlord for
all work performed in the Building. All materials and equipment to be used in
the Premises shall be of first quality and at least equal to the applicable
standards for the
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Building then established by Landlord, and no such materials or equipment (other
than Tenant's Property) shall be subject to any lien or other encumbrance.
Section 5.3 Removal of Tenant's Property. Tenant's Property shall be and
remain the property of Tenant and Tenant may remove the same at any time on or
before the Expiration Date. On or prior to the Expiration Date or sooner
termination of the Term, Tenant shall, at Tenant's expense, remove all of
Tenant's Property and, unless otherwise directed by Landlord: (a) remove any
Specialty Alteration and (b) close up any slab penetrations in the Premises.
Landlord shall advise Tenant, at the time of Landlord's approval of the plans
and specifications therefor, as to whether Tenant will be required to remove a
Specialty Alteration, provided Tenant requests in writing (using bold letters)
that Landlord advise of such removal obligation with submittal of the applicable
plans and specifications. At least 30 days prior to commencing the removal of
any Specialty Alterations or effecting such closings, Tenant shall notify
Landlord of its intention to remove such Specialty Alterations or effect such
closings, and if Landlord notifies Tenant within such 30 day period, Tenant
shall not remove such Specialty Alterations or close such slab penetrations, and
the Specialty Alterations not so removed shall become the property of Landlord
upon the Expiration Date or sooner termination of the Term. Tenant shall repair
and restore, in a good and workmanlike manner, any damage to the Premises or the
Building caused by Tenant's removal of any Specialty Alterations or Tenant's
Property or by the closing of any slab penetrations, and upon default thereof,
Tenant shall reimburse Landlord, on demand, for Landlord's cost of repairing and
restoring such damage. Any Specialty Alterations or Tenant's Property not
removed on or before the Expiration Date or sooner termination of the Term shall
be deemed abandoned and Landlord may either retain the same as Landlord's
property or remove and dispose of same, and repair and restore any damage caused
thereby, at Tenant's cost and without accountability to Tenant. This Section 5.3
shall survive the expiration or earlier termination of this Lease.
Section 5.4 Mechanic's Liens. Tenant, at its expense, shall discharge any
lien or charge filed against the Premises or the Real Property in connection
with any work claimed or reasonably determined in good faith by Landlord to have
been done by or on behalf of, or materials claimed or reasonably determined in
good faith by Landlord to have been furnished to, Tenant, within 30 days after
Tenant's receipt of notice thereof by payment, filing the bond required by law
or otherwise in accordance with law.
Section 5.5 Labor Relations. Tenant shall not employ, or permit the
employment of, any contractor, mechanic or laborer, or permit any materials to
be delivered to or used in the Building, if, in Landlord's sole judgment, such
employment, delivery or use will interfere or cause any conflict or disharmony
with other contractors, mechanics or laborers engaged in the construction,
maintenance or operation of the Building by Landlord, Tenant or others, or the
use and enjoyment of the Building by other tenants or occupants. In the event of
such interference, conflict or disharmony, upon Landlord's request, Tenant shall
cause all
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contractors, mechanics or laborers causing such interference or conflict to
leave the Building immediately.
Section 5.6 Tenant's Costs. Tenant shall pay to Landlord or its designee,
within 30 days after demand, all reasonable out-of-pocket costs actually
incurred by Landlord in connection with Tenant's Alterations (including the
Initial Installations), including costs incurred in connection with (a)
Landlord's review of the Alterations (including review of requests for approval
thereof) and (b) the provision of Building personnel during the performance of
any Alteration required by trade union policy or otherwise, to operate elevators
or otherwise to facilitate Tenant's Alterations. In addition, if Tenant's
Alterations (other than the Initial Installations) shall cost more than
$100,000, Tenant shall pay to Landlord or its designee, upon demand, an
administrative fee in respect of the performance of such Alterations and the
scheduling of Building equipment, facilities and personnel in connection
therewith equal to three percent of the total cost of such Alterations.
Section 5.7 Tenant's Equipment. Tenant shall not move any heavy machinery,
heavy equipment, freight, bulky matter or fixtures (collectively, "Equipment")
into or out of the Building without Landlord's prior consent, which consent
shall not be unreasonably withheld, and payment to Landlord of any costs
incurred by Landlord in connection therewith. If such Equipment requires special
handling, Tenant agrees (a) to employ only persons holding a Master Rigger's
License to perform such work, (b) all work performed in connection therewith
shall comply with all applicable Requirements and (c) such work shall be done
only during hours designated by Landlord.
Section 5.8 Legal Compliance. The approval of plans or specifications, or
consent by Landlord to the making of any Alterations, does not constitute
Landlord's agreement or representation that such plans, specifications or
Alterations comply with any Requirements or the certificate of occupancy issued
for the Building. Landlord shall have no liability to Tenant or any other party
in connection with Landlord's approval of any plans and specifications for any
Alterations, or Landlord's consent to Tenant's performing any Alterations. If as
the result of any Alterations made by or on behalf of Tenant, Landlord is
required to make any alterations or improvements to any part of the Building in
order to comply with any Requirements, whether or not in or near the Premises,
Tenant shall pay all costs and expenses incurred by Landlord in connection with
such alterations or improvements as provided in Article 20.
Section 5.9 ICIP. Landlord hereby notifies Tenant that Landlord intends to
avail itself of the Industrial and Commercial Incentive Program ("ICIP"). In
connection therewith, all of Tenant's construction managers, contractors and
subcontractors employed in connection with construction work at the Building
shall be contractually required by Tenant to comply with the New York City
Department of Business Services/ Division of Labor Services ("DLS") requirements
applicable to construction projects benefiting from the ICIP. Such compliance,
as of the date hereof, includes the following: the submission and approval
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of a Construction Employment Report, attendance at a pre-construction conference
with representatives of DLS and adherence to the provisions of Article 22 of the
ICIP Rules and Regulations, the provisions of New York City Charter Chapter 13B
and the provisions of Executive Order No. 50 (1980). Furthermore, at Landlord's
request from time to time as may be necessary to comply with the ICIP, Tenant
shall (i) report to Landlord the number of workers permanently engaged in
employment in the Premises, the nature of each worker's employment and to the
extent applicable, the New York City residency of each worker, (ii) provide
access to the Premises by employees and agents of the Department (as such term
is defined in the ICIP rules and regulations) at all reasonable times, (iii)
enforce the contractual obligations of Tenant's construction managers,
contractors and subcontractors to comply with the DLS requirements, and (iv)
submit required ICIP documentation which shall include copies of blueprint
plans, building permits, architect's description of project and detailed
certified cost statements.
Section 5.10 Staircase. Tenant shall have the right, subject to specific
location, manner of installation and to the terms of this Article, to construct
an internal staircase within the Premises between the 30th and 31st floors of
the Building.
ARTICLE 6
FLOOR LOAD
Section 6.1 Floor Load. Tenant shall not place a load upon any floor of the
Premises that exceeds the loads specified in Exhibit D. Landlord reserves the
right to reasonably designate the position of all Equipment which Tenant wishes
to place within the Premises, and to place limitations on the weight thereof.
ARTICLE 7
REPAIRS
Section 7.1 Landlord's Repair and Maintenance. Landlord shall operate,
maintain and, except as provided in Section 7.2 hereof, make all necessary
repairs (both structural and nonstructural) to (a) the Building Systems up to
the point of connection to the Premises, (b) the public portions of the
Building, both exterior and interior, and (c) the structural components of the
Building, in conformance with standards applicable to first-class renovated
office buildings of comparable age and quality in midtown Manhattan.
Section 7.2 Tenant's Repair and Maintenance. Tenant shall promptly, at its
expense and in compliance with Article 5 of this Lease, (a) make all
nonstructural repairs to the Premises and the fixtures, equipment and
appurtenances therein as and when needed to
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preserve the Premises in good working order and condition, except for reasonable
wear and tear and damage for which Tenant is not responsible pursuant to this
Lease, and (b) replace scratched or damaged doors, signs and glass (other than
exterior window glass) in and about the Premises. Without limiting the
foregoing, but subject to the provisions of Section 12.2, all damage to the
Premises or to any other part of the Building, or to any fixtures, equipment,
sprinkler system and/or appurtenances thereof, whether requiring structural or
nonstructural repairs, caused by or resulting from any act, omission, neglect or
improper conduct of, or Alterations made by, or the moving of Tenant's fixtures,
furniture or equipment into, within or out of the Premises by any Tenant Party,
and all damage to any portion of the Building Systems located in the Premises,
shall be repaired at Tenant's expense. Such repairs shall be made by (i) Tenant,
at Tenant's expense, if the required repairs are nonstructural in nature and do
not affect any Building System or any portion of the Building outside of the
Premises, or (ii) Landlord, at Tenant's expense, if the required repairs are
structural in nature, involve replacement of exterior window glass (if damaged
by Tenant) or affect any Building System or any portion of the Building outside
of the Premises. All Tenant repairs shall be of a quality at least equal to the
original work or construction utilizing new construction materials and shall be
made in accordance with this Lease. Tenant shall give Landlord prompt notice of
any defective condition of which Tenant is aware in any Building System located
in, servicing or passing through the Premises. If Tenant fails to proceed with
due diligence to make any repairs required to be made by Tenant, Landlord may
make such repairs and all costs and expenses incurred by Landlord on account
thereof shall be paid by Tenant as provided in Article 20.
Section 7.3 Vermin. Tenant shall, at its expense, cause the Premises to be
exterminated, from time to time as Landlord may reasonably direct or whenever
there is evidence of infestation to Landlord's reasonable satisfaction, by
licensed exterminators approved by Landlord.
Section 7.4 Interruptions Due to Repairs. Landlord reserves the right to
make all changes, alterations, additions, improvements, repairs or replacements
to the Building, including the Building Systems which provide services to
Tenant, as Landlord deems necessary or desirable, provided that in no event
shall the level of any Building service decrease in any material respect from
the level required of Landlord in this Lease as a result thereof (other than
temporary changes in the level of such services during the performance of any
such work by Landlord). Landlord shall use reasonable efforts to minimize
interference with Tenant's use and occupancy of the Premises during the making
of such changes, repairs, alterations, additions, improvements, repairs or
replacements provided that Landlord shall have no obligation to employ
contractors or labor at overtime or other premium pay rates or to incur any
other overtime costs or additional expenses whatsoever. Except as provided in
Section 11.9, there shall be no Rent abatement or allowance to Tenant for a
diminution of rental value, no actual or constructive eviction of Tenant, in
whole or in part, no relief from any of Tenant's other obligations under this
Lease, and no liability on the part of Landlord by reason of inconvenience,
annoyance or injury to business arising from Landlord, Tenant or
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others making, or failing to make, any repairs, alterations, additions or
improvements in or to any portion of the Building or the Premises, or in or to
fixtures, appurtenances or equipment therein.
ARTICLE 8
INCREASES IN TAXES AND OPERATING EXPENSES
Section 8.1 Definitions. For the purposes of this Article 8, the following
terms shall have the meanings set forth below:
(a) "Assessed Valuation" shall mean the amount for which the Real Property
is assessed pursuant to applicable provisions of the City Charter and of the
Administrative Code of the City of New York for the purpose of imposition of
Taxes.
(b) "Base Operating Expenses" shall mean one-half of the aggregate
Operating Expenses for the Base Expense Years.
(c) "Base Taxes" shall mean the Assessed Valuation of the Real Property for
the Base Tax Year multiplied by the annual real estate tax rate of the City of
New York applicable to the Building for the Base Tax Year, plus all other taxes,
assessments and other governmental levies, impositions or charges, which may be
assessed upon all or any part of the Real Property for the Base Tax Year,
provided, if the Assessed Valuation for the Real Property for the 2000/2001 Tax
Year is more than 105% of the Assessed Valuation for the Real Property for the
Base Tax Year other than as a result of a "physical increase" contemplated by
the last sentence of Section 8.1(h), then the portion of such assessment in
excess of 105% (other than as provided above) shall be included in the Real
Property's Assessed Valuation for the Base Tax Year for purposes of determining
Base Taxes.
(d) "Comparison Year" shall mean (a) with respect to Taxes, any calendar
year commencing subsequent to the first day of the Base Tax Year, and (b) with
respect to Operating Expenses, any calendar year commencing subsequent to the
first day of the 1999 Base Expense Year.
(e) "Operating Expenses" shall mean the aggregate of all costs and expenses
(and taxes, if any, thereon) paid or incurred by or on behalf of Landlord
(whether directly or through independent contractors) in connection with the
ownership, operation, repair and maintenance of the Building and the Real
Property, such as: (i) insurance premiums, (ii) the cost of electricity, gas,
oil, steam, water, air conditioning and other fuel and utilities, (iii)
attorneys' fees and disbursements and auditing, management and other
professional fees and expenses, and (iv) the annual depreciation or
amortization, on a straight-line basis over the useful life thereof as Landlord
shall reasonably determine (with interest on the unamortized
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portion at the Base Rate plus 2 percent per annum), of any capital costs
incurred after the Base Expense Years for any equipment, device or other
improvement made or acquired which is either (A) intended as a labor-saving
measure or to effect other economies in the operation, maintenance or repair of
the Building (but only to the extent that the annual benefits anticipated to be
realized therefrom are reasonably related to the annual amounts to be
amortized), or (B) required by any Requirement other than a Requirement in
effect as of the date of this Lease and with which Landlord is not then in
compliance. Operating Expenses shall not include any Excluded Expenses. If
during all or part of the Base Expense Years or any Comparison Year, Landlord
shall not furnish any particular item(s) of work or service (which would
otherwise constitute an Operating Expense) to any leasable portions of the
Building for any reason, then, for purposes of computing Operating Expenses for
the Base Expense Years or any Comparison Year, as the case may be, the amount
included in Operating Expenses for such period shall be increased by an amount
equal to the costs and expenses that would have been reasonably incurred by
Landlord during such period if Landlord had furnished such item(s) of work or
service to such portion of the Building. In determining the amount of Operating
Expenses for the Base Expense Years or any Comparison Year, if less than 100
percent of the Building rentable area shall have been occupied by tenant(s) at
any time during any such Base Expense Years or Comparison Year, Operating
Expenses shall be determined for such Base Expense Years or Comparison Year to
be an amount equal to the like expenses which would normally be expected to be
incurred had such occupancy been 100 percent throughout such Base Expense Years
or Comparison Year. To the extent that any service furnished to the Building is
provided by facilities and equipment located in and employees located at the
Chrysler Building, now known as 405 Lexington Avenue, New York, New York (the
"Chrysler Building"), or in any other building owned by Landlord (together with
the Chrysler Building, an "Adjoining Building"), the cost of maintaining and
repairing such facilities and equipment and the compensation of such employees
shall be deemed an Operating Expense of the Building, if and to the same extent
that such cost would have constituted an Operating Expense had such facilities,
equipment and employees been located in or at the Building. To the extent that
any service or goods are furnished or supplied to both the Building and an
Adjoining Building pursuant to the same agreement or by the same facilities and
equipment, Operating Expenses for purposes of this Lease shall be limited to
that portion of the Operating Expenses which is properly allocable, in
Landlord's reasonable judgment, to the Building.
(f) "Statement" shall mean a statement containing a comparison of (1) the
Taxes payable for the Base Tax Year and the Taxes payable for any Comparison
Year, or (2) the Base Operating Expenses and the Operating Expenses payable for
any Comparison Year.
(g) "Tax Year" shall mean the twelve month period from July 1 through June
30 (or such other period as hereinafter may be duly adopted by the City of New
York as its fiscal year for real estate tax purposes).
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(h) "Taxes" shall mean (i) all real estate taxes, assessments, including
assessments made as a result of the Building being within a business improvement
district, and other governmental levies, impositions or charges, whether
general, special, ordinary, extraordinary, foreseen or unforeseen, which may be
assessed, levied or imposed upon all or any part of the Real Property and/or the
Building and (ii) all expenses (including reasonable attorneys' fees and
disbursements and experts' and other witnesses' fees) incurred in contesting any
of the foregoing or in connection with any application for a reduction of the
Assessed Valuation of all or any part of the Real Property or for a judicial
review thereof (but in no event shall such expenses be included in Taxes payable
for the Base Tax Year). Taxes shall not include (x) interest or penalties
incurred by Landlord as a result of Landlord's late payment of Taxes, except for
interest payable in connection with the installment payment of assessments
pursuant to the next sentence or (y) franchise or net income taxes imposed upon
Landlord. If Landlord elects to pay any assessment in annual installments, then
for the purposes of this Article 8, (A) such assessment shall be deemed to have
been so divided and to be payable in the maximum number of installments
permitted by law, and (B) there shall be deemed included in Taxes for each
Comparison Year the installments of such assessment becoming payable during such
Comparison Year, together with interest payable during such Comparison Year on
such installments and on all installments thereafter becoming due as provided by
law, all as if such assessment had been so divided. If at any time the methods
of taxation prevailing on the date hereof shall be altered so that in lieu of or
as an addition to the whole or any part of Taxes, there shall be assessed,
levied or imposed (1) a tax, assessment, levy, imposition or charge based on the
income or rents received from the Real Property whether or not wholly or
partially as a capital levy or otherwise, (2) a tax, assessment, levy,
imposition or charge measured by or based in whole or in part upon all or any
part of the Real Property and imposed upon Landlord, (3) a license fee measured
by the rents, or (4) any other tax, assessment, levy, imposition, charge or
license fee however described or imposed, then all such taxes, assessments,
levies, impositions, charges or license fees or the part thereof so measured or
based shall be deemed to be Taxes, provided that any tax, assessment, levy,
imposition or charge imposed on income from the Real Property shall be
calculated as if the Real Property were the only asset of Landlord.
Notwithstanding anything to the contrary contained herein, in the event any
Building Work causes an increase in the Assessed Valuation of the Real Property,
as separately identified on the applicable tax bill as a "physical increase" for
a Comparison Year up to the 2001/2002 Tax Year (to the extent not already
included in the Base Tax Year), then the Base Taxes shall be increased solely as
a result of the increased assessment attributable to such identifiable Building
Work using the tax rates otherwise applicable to the Base Tax Year (it being
agreed that Landlord shall not be required to refund any amount paid by Tenant
for prior Tax Years solely as a result of such adjustment).
Section 8.2 (a) Tenant's Tax Payment. If the Taxes payable for any Tax Year
after the Base Tax Year exceed the Base Taxes, Tenant shall pay to Landlord
Tenant's Proportionate Share of such excess ("Tenant's Tax Payment"). Landlord
may furnish to Tenant, prior to the commencement of each Comparison Year in
which any such Tax Year
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commences, a Statement setting forth Landlord's reasonable estimate of Tenant's
Tax Payment for such Tax Year. Subject to the provisions of this Section 8.2(a),
Tenant shall pay to Landlord on the first day of each month during any such
Comparison Year (and on the first day of each month thereafter in such
Comparison Year) an amount equal to 1/12th of Landlord's estimate of Tenant's
Tax Payment for such Tax Year. If Landlord shall not furnish any such estimate
for such Comparison Year or if Landlord shall furnish any such estimate
subsequent to the commencement thereof, then (x) until the first day of the
month following the month in which such estimate is furnished to Tenant, Tenant
shall pay to Landlord on the first day of each month an amount equal to the
monthly sum payable by Tenant to Landlord under this Section 8.2(a) for the last
month of the preceding Comparison Year; (y) after such estimate is furnished to
Tenant, if the installments of Tenant's Tax Payment previously made for such
Comparison Year were greater or less than the installments of Tenant's Tax
Payment to be made in accordance with such estimate, then (1) if there is a
deficiency, Tenant shall pay the amount thereof to Landlord within 20 days after
such estimate is furnished to Tenant, or (2) if there is an overpayment,
Landlord shall credit such overpayment against subsequent installments of Rent;
and (z) on the first day of the month following the month in which such estimate
is furnished to Tenant and monthly thereafter throughout such Comparison Year,
Tenant shall pay to Landlord an amount equal to 1/12th of Tenant's Tax Payment
shown on such estimate. Landlord may, during each Comparison Year, furnish to
Tenant a revised Statement of Landlord's estimate of Tenant's Tax Payment for
such Comparison Year, and in such case, Tenant's Tax Payment for such Comparison
Year shall be adjusted and any deficiencies paid or overpayments credited, as
the case may be, substantially in the same manner as provided in the preceding
sentence. After the end of each Comparison Year, Landlord shall furnish to
Tenant a Statement of Taxes for such Comparison Year and (A) if such Statement
shall show that the sums so paid by Tenant were less than Tenant's Tax Payment
for such Comparison Year, Tenant shall pay to Landlord the amount of such
deficiency in Tenant's Tax Payment within 20 days after such Statement is
furnished to Tenant, or (B) if such Statement shall show that the sums so paid
by Tenant were more than Tenant's Tax Payment for such Comparison Year, Landlord
shall, at its election, pay to Tenant such overpayment in Tenant's Tax Payments
or credit such overpayment in Tenant's Tax Payment against subsequent
installments of Rent payable by Tenant and if any such credit remains
outstanding as of the Expiration Date, Landlord will pay the amount thereof to
Tenant within 30 days thereafter. If there shall be any increase in the Taxes
for any Comparison Year, whether during or after such Comparison Year, or if
there shall be any decrease in the Taxes for any Comparison Year, Tenant's Tax
Payment for such Comparison Year shall be appropriately adjusted and any
deficiencies paid or overpayments credited, as the case may be, substantially in
the same manner as provided in the preceding sentence. The benefit of any
discount for any early payment or prepayment of Taxes and of any tax exemption
or abatement relating to all or any part of the Real Property shall accrue
solely to the benefit of Landlord and Taxes shall be computed without
subtracting such discount or taking into account any such exemption or
abatement.
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(b) Taxes for each real estate tax fiscal year shall be apportioned on the
basis of the number of days in such fiscal year included in any particular Tax
Year subsequent to the Base Tax Year for the purpose of making the computations
under this Section.
(c) Tenant shall not (and hereby waives any and all rights it may now or
hereafter have to) institute or maintain any action, proceeding or application
in any court or other body having the power to fix or review assessed valuations
or tax rates, for the purpose of reducing Taxes. The filing of any such
proceeding by Tenant without Landlord's consent shall be an immediate Event of
Default hereunder. If the Base Taxes are reduced, the Additional Rent previously
paid or payable on account of Tenant's Tax Payment hereunder for all Comparison
Years shall be recomputed on the basis of such reduction, and Tenant shall pay
to Landlord, within 20 Business Days after being billed therefor, any deficiency
between the amount of such Additional Rent previously computed and paid by
Tenant to Landlord, and the amount due as a result of such recomputation. If the
Base Taxes are increased, then Landlord shall either pay to Tenant, or at
Landlord's election, credit against subsequent payments of Rent due, the amount
by which such Additional Rent previously paid on account of Tenant's Tax Payment
exceeds the amount actually due as a result of such recomputation. If Landlord
receives a refund or credit of Taxes for any Comparison Year, Landlord shall
recalculate Tenant's Tax Payment for the applicable periods (taking into account
the provisions of Section 8.2 (a)) and shall, as and when such refund payment or
credit is received, at its election, either pay to Tenant, or credit against
subsequent payments of Rent due hereunder, an amount equal to Tenant's
Proportionate Share of the refund, net of any expenses incurred by Landlord in
achieving such refund and adjustments to Tenant's Tax Payments resulting from
such recalculation, which amount shall not exceed Tenant's Tax Payment paid for
such Comparison Year. Landlord shall not be obligated to file any application or
institute any proceeding seeking a reduction in Taxes or the Assessed Valuation.
(d) Tenant shall be obligated to make Tenant's Tax Payment regardless of
whether Tenant may be exempt from the payment of any taxes as the result of any
reduction, abatement, or exemption from Taxes granted or agreed to by any
Governmental Authority, or by reason of Tenant's diplomatic or other tax exempt
status.
(e) If the Expiration Date shall occur on a date other than the last day of
a Tax Year, any Additional Rent payable by Tenant to Landlord under this Section
8.2 for the Comparison Year in which such Expiration Date occurs shall be
apportioned on the basis of the number of days in the period from such last day
to the Expiration Date shall bear to the total number of days in such Comparison
Year. In the event of the expiration or earlier termination of this Lease, any
Additional Rent under this Section 8.2 shall be paid or adjusted within 30 days
after submission of the Statement. In no event shall Fixed Rent ever be reduced
by operation of this Section 8.2.
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(f) Tenant shall be responsible for any applicable occupancy or rent tax
now in effect or hereafter enacted and, if such tax is payable by Landlord,
Tenant shall promptly pay such amounts to Landlord, upon Landlord's demand, as
Additional Rent.
Section 8.3 Tenant's Operating Payment. (a) If the Operating Expenses
payable for any Comparison Year exceed the Base Operating Expenses, Tenant shall
pay to Landlord, as Additional Rent during each Comparison Year, for any period
from and after January 1, 2001, Tenant's Proportionate Share of such excess
("Tenant's Operating Payment"). For each Comparison Year, Landlord shall furnish
to Tenant a written statement setting forth Landlord's good faith reasonable
estimate of Tenant's Operating Payment for such Comparison Year, based upon such
year's budget. Tenant shall pay to Landlord on the first day of each month
during such Comparison Year an amount equal to one-twelfth of Landlord's
estimate of Tenant's Operating Payment for such Comparison Year. If Landlord
does not furnish any such estimate for a Comparison Year until after the
commencement thereof, then (i) until the first day of the month following the
month in which such estimate is furnished to Tenant, Tenant shall pay to
Landlord on the first day of each month an amount equal to the monthly sum
payable by Tenant to Landlord under this Section 8.3 during the last month of
the preceding Comparison Year, (ii) promptly after such estimate is furnished to
Tenant or together therewith, Landlord shall give notice to Tenant stating
whether the installments of Tenant's Operating Payment previously made for such
Comparison Year were greater or less than the installments of Tenant's Operating
Payment to be made for such Comparison Year in accordance with such estimate,
and (A) if there shall be a deficiency, Tenant shall pay the amount thereof
within 20 days after demand therefor, or (B) if there shall have been an
overpayment, Landlord shall, at its election, pay to Tenant, or credit against
subsequent payments of Rent due hereunder, the amount thereof and if any such
credit remains outstanding as of the Expiration Date, Landlord will pay the
amount thereof to Tenant within 30 days thereafter, and (iii) on the first day
of the month following the month in which such estimate is furnished to Tenant,
and on the first day of each month thereafter throughout the remainder of such
Comparison Year, Tenant shall pay to Landlord an amount equal to one-twelfth of
Tenant's Operating Payment shown on such estimate.
(b) Landlord shall furnish to Tenant a Statement of Operating Expenses for
the immediately preceding Comparison Year. If such Statement shall show that the
sums paid by Tenant under Section 8.3(a) exceeded the actual amount of Tenant's
Operating Payment for such Comparison Year, Landlord shall, at its election, pay
to Tenant, or credit against subsequent payments of Rent due hereunder, the
amount of such excess and if any such credit remains outstanding as of the
Expiration Date, Landlord will pay the amount thereof to Tenant within 30 days
thereafter. If the Statement for such Comparison Year shall show that the sums
so paid by Tenant were less than Tenant's Operating Payment for such Comparison
Year, Tenant shall pay the amount of such deficiency within 20 days after
Tenant's receipt of such Statement.
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(c) If the Expiration Date shall occur on a date other than December 31,
any Additional Rent under this Section 8.3 for the Comparison Year in which such
Expiration Date shall occur shall be apportioned on the basis of the number of
days in the period from January 1 to the Expiration Date. Upon the expiration or
earlier termination of this Lease, any Additional Rent under this Article 8
shall be paid or adjusted within 30 days after submission of the Statement. In
no event shall Fixed Rent ever be reduced by operation of this Section 8.3.
Section 8.4 Formula. The computations of Additional Rent under this Article
8 are intended to constitute a formula for an agreed rental adjustment and may
or may not constitute an actual reimbursement to Landlord for Taxes, costs and
expenses paid by Landlord with respect to the Building.
Section 8.5 Non-Waiver; Disputes. (a) Landlord's failure to render any
Statement on a timely basis with respect to any Comparison Year shall not
prejudice Landlord's right to thereafter render a Statement with respect to such
Comparison Year or any subsequent Comparison Year, nor shall the rendering of a
Statement prejudice Landlord's right to thereafter render a corrected Statement
for any Comparison Year unless such failure continues for more than 3 years
after the expiration of the Comparison Year in question to which such Statement
or corrected Statement relates.
(b) Each Statement sent to Tenant shall be conclusively binding upon Tenant
unless Tenant shall, within 45 days after such Statement is sent, (i) pay to
Landlord the amount set forth in such Statement, without prejudice to Tenant's
right to dispute such Statement, and (ii) request for review backup information
in respect of such Statement. Landlord shall provide backup information with
respect to Landlord's Statement as shall reasonably be necessary for Tenant to
confirm the accuracy thereof and the proper inclusion of Operating Expenses.
Tenant agrees that Tenant will not employ, in connection with any review or
dispute under this Lease, any person who is to be compensated, in whole or in
part, on a contingency fee basis. In connection with any such review or dispute,
Tenant and its representatives shall execute and deliver to Landlord a
confidentiality agreement, in form and substance reasonably satisfactory to
Landlord, whereby such parties agree not to disclose to any third party any of
the information obtained in connection with such review, or the substance of any
admissions or stipulations by any party in connection therewith, or of any
resulting reconciliation, compromise or settlement. Each Statement sent to
Tenant shall be conclusively binding upon Tenant unless Tenant shall, within 60
days after such additional backup information is provided to Tenant, send a
written notice to Landlord objecting to such Statement and specifying the
reasons for Tenant's claim that such Statement is incorrect. If the parties are
unable to resolve any such dispute within 30 days following the giving of
Tenant's notice of objection, either party may within ten days after the
expiration of such 30-day period refer the issues raised to an independent firm
of certified public accountants selected by such party and reasonably acceptable
to the other party, and, if the parties cannot agree upon such a firm, an
independent firm of certified public accountants selected by the
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American Arbitration Association upon the application of either party, and the
decision of such accountants shall be conclusively binding upon Landlord and
Tenant. Tenant shall pay the fees and expenses relating to such proceeding,
unless such accountants shall determine that Landlord overstated the Operating
Expenses by more than 5% for such Comparison Year, as finally determined, in
which case Landlord shall pay such fees and expenses. Except as provided in this
Section, Tenant shall have no right whatsoever to dispute by judicial process or
otherwise the accuracy of any Statement.
Section 8.6 No Reduction in Rent. Anything in this Article 8 to the
contrary notwithstanding, under no circumstances shall any decrease in Operating
Expenses or Taxes in any Comparison Year below the Base Operating Expenses or
Base Taxes, as the case may be, result in a reduction in the Fixed Rent or any
other component of Additional Rent payable hereunder.
ARTICLE 9
REQUIREMENTS OF LAW
Section 9.1 (a) Tenant's Compliance. Tenant, at its expense, shall comply
(or cause to be complied) with all Requirements applicable to the Premises,
regardless of whether imposed by their terms upon Landlord or Tenant, provided
however, that Tenant shall not be obligated to comply with any Requirement
requiring any structural alteration to the Premises unless the application of
such Requirement arises from (i) Tenant's manner of use or occupancy of the
Premises (as distinguished from the use or occupancy of the Premises for office
purposes generally), (ii) any cause or condition created by or on behalf of any
Tenant Party (including any Alterations), (iii) the breach of any of Tenant's
obligation under this Lease, or (iv) any Hazardous Materials having been brought
into the Building or affected by any Tenant Party. All repairs and alterations
to the Premises, required to be made by Tenant as provided above to cause the
Premises to comply with any Requirements shall be made by Tenant, at Tenant's
expense and in compliance with Article 5, if such repairs or alterations are
nonstructural, do not adversely affect any Building System, do not affect the
exterior windows of the Premises and do not involve the performance of work
outside of the Premises, or by Landlord, at Tenant's reasonable expense, if such
repairs or alterations are structural, otherwise affect any Building System or
the exterior windows of the Premises or involve the performance of work outside
the Premises. If Tenant obtains knowledge of any failure to comply with any
Requirements applicable to the Premises, Tenant shall give Landlord prompt
written notice thereof.
(b) Hazardous Materials. Tenant shall not (i) cause or permit any Hazardous
Materials to be brought into the Building, (ii) cause or permit the storage or
use of Hazardous Materials in any manner not permitted by any Requirements, or
(iii) cause or permit the escape, disposal or release of any Hazardous Materials
within or in the vicinity of the
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Building. Nothing herein shall be deemed to prevent Tenant's use of any
Hazardous Materials customarily used in the ordinary course of office work,
provided such use is in accordance with all Requirements. Tenant shall be
responsible, at its expense, for all matters directly or indirectly based, on or
arising or resulting from the actual or alleged presence of Hazardous Materials
in the Premises or in the Building which is caused or permitted by Tenant or any
Tenant Party. Tenant shall provide to Landlord copies of all communications in
respect of the Premises received by Tenant with respect to any Requirements
relating to Hazardous Materials, and/or any claims made in connection therewith.
Landlord or its agents may perform environmental inspections of the Premises at
any time. The covenants contained in this subsection shall survive the
expiration or earlier termination of this Lease.
(c) Landlord's Compliance. Landlord shall comply with (or cause to be
complied with) all Requirements applicable to the Building which are not the
obligation of Tenant, to the extent that non-compliance would materially impair
Tenant's use and occupancy of the Premises and Tenant's ability to conduct its
business in the Premises for office use; and the cost thereof shall be included
in Operating Expenses.
(d) Landlord's Insurance. Tenant shall not cause or permit any action or
condition that would (i) invalidate or conflict with Landlord's insurance
policies, (ii) violate applicable rules, regulations and guidelines of the Fire
Department, Fire Insurance Rating Organization or any other authority having
jurisdiction over the Building, (iii) cause an increase in the premiums for fire
insurance then covering the Building over that payable with respect to
comparable first-class office buildings, or (iv) result in insurance companies
of good standing refusing to insure the Building or any property therein in
amounts and against risks as reasonably determined by Landlord. If the fire
insurance premiums increase as a result of Tenant's failure to comply with the
provisions of this Article, Tenant shall promptly cure such failure and shall
reimburse Landlord, as Additional Rent, for the increased fire insurance
premiums paid by Landlord as a result of such failure by Tenant. In any action
or proceeding to which Landlord and Tenant are parties, a schedule or "make up"
of rates for the Building or the Premises issued by the appropriate Fire
Insurance Rating Organization, or other body fixing such fire insurance rates,
shall be conclusive evidence of the fire insurance rates then applicable to the
Building.
Section 9.2 Fire Alarm System; Sprinkler. Tenant shall install and
thereafter maintain in good order and repair a sprinkler, fire-alarm and
life-safety system in the Premises, if and to the extent such system has not
been installed in the Premises prior to the Construction Period Start Date. Such
installation and maintenance shall be performed by Tenant in accordance with
this Lease, the Rules and Regulations and all Requirements. If the Fire
Insurance Rating Organization or any Governmental Authority or any of Landlord's
insurers requires or recommends any modifications and/or Alterations be made or
any additional equipment be supplied in connection with the sprinkler system or
fire alarm and life-safety system serving the Building or the Premises by reason
of Tenant's business, any Alteration performed by Tenant or the location of the
partitions, trade fixtures, or other
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contents of the Premises, Landlord (to the extent such modifications or
Alterations are structural, affect any Building System or involve the
performance of work outside of the Premises) or Tenant (to the extent such
modifications or Alterations are nonstructural, do not affect any Building
System and do not involve the performance of work outside the Premises) shall
make such modifications and/or Alterations, and supply such additional
equipment, in either case at Tenant's expense.
Section 9.3 Limitations on Rent. If at any time during the Term by reason
of any Requirement the Rent is not fully collectible, Tenant shall take such
other steps (without additional expense to Tenant) as Landlord may request, and
as may be legally permissible, to permit Landlord to collect the maximum rents
which may during the continuance of such restriction be legally permissible (but
not in excess of the Rent reserved under this Lease). Upon the termination of
such restriction during the Term, Tenant shall pay to Landlord, in addition to
the Rent for the period following such termination of the restriction, if
legally permissible, the portion of Rent which would have been paid pursuant to
this Lease but for such legal restriction less the Rent paid by Tenant to
Landlord while such restriction was in effect, together with interest thereon at
the Base Rate.
Section 9.4 Contest of Requirements. Tenant, at its expense, may contest,
by appropriate proceedings prosecuted diligently and in good faith, the legality
or applicability of any Requirement affecting the Premises and with which Tenant
is obligated to comply at its expense pursuant to Section 9.1, provided that (i)
Landlord (or any Indemnitee) shall not be subject to prosecution for any crime,
nor shall the Building, the Real Property or any part thereof be subject to
being imminently condemned or vacated by reason of non-compliance, (ii) no
unsafe or hazardous condition relating to such contest or non-compliance then
exists which remains uncured, (iii) such non-compliance or contest shall not
prevent Landlord from obtaining any and all permits and licenses required by
applicable Requirements in connection with the operation of the Building, nor
shall the certificate of occupancy for the Building be suspended or threatened
in writing by any Governmental Authority to be suspended by reason of
noncompliance or by reason of such contest, (iv) Tenant shall indemnify Landlord
(and any Indemnitee) against the cost of such compliance and liability resulting
from or incurred in connection with such contest or non-compliance, (v) such
non-compliance or contest shall not constitute or result in a violation (either
with the giving of notice or the passage of time or both) of the terms of any
Mortgage or Superior Lease, or if such Superior Lease or Mortgage shall
condition such noncompliance or contest upon the taking of action or furnishing
of security by Landlord, such action shall be taken or such security shall be
furnished at the expense of Tenant, and (vi) Tenant shall promptly notify
Landlord of such contest and keep Landlord regularly advised as to the status of
such proceedings. For the purposes of clause (i) above, Landlord (or any
Indemnitee) shall be deemed subject to prosecution for a crime if Landlord (or
any Indemnitee), a Lessor, a Mortgagee or any of their officers, directors,
partners, shareholders, agents or employees is charged with a crime of any kind
whatsoever by reason of such non-compliance unless such charges are withdrawn 10
days before Landlord (or any Indemnitee), such Lessor or such Mortgagee or such
officer,
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director, partner, shareholder, agent or employee, as the case may be, is
required to plead or answer thereto. Landlord shall execute any documents
reasonably required by Tenant in order to permit Tenant effectively to carry on
any such contest permitted under this Section, provided Landlord is not thereby
subjected to any cost or expense not reimbursed by Tenant.
ARTICLE 10
SUBORDINATION
Section 10.1 Subordination and Attornment. (a) This Lease and Tenant's
rights hereunder are subject and subordinate to all Mortgages and Superior
Leases, and, at the request of any Mortgagee or Lessor, Tenant shall attorn to
such Mortgagee or Lessor, its successors in interest or any purchaser in a
foreclosure sale.
(b) If a Lessor or Mortgagee or any other person or entity
shall succeed to the rights of Landlord under this Lease, whether through
possession or foreclosure action or the delivery of a new lease or deed, then at
the request of the successor landlord and upon such successor landlord's written
agreement to accept Tenant's attornment and to recognize Tenant's interest under
this Lease, Tenant shall be deemed to have attorned to and recognized such
successor landlord as Landlord under this Lease. The provisions of this Article
are self-operative and require no further instruments to give effect hereto;
provided, however, that Tenant shall promptly execute and deliver any instrument
that such successor landlord may reasonably request (x) evidencing such
attornment, (y) setting forth the terms and conditions of Tenant's tenancy, and
(z) containing such other terms and conditions as may be required by such
Mortgagee or Lessor, provided such terms and conditions do not increase Tenant's
obligations other than to a de minimis extent or adversely affect the rights of
Tenant under this Lease other than to a de minimis extent. Upon such attornment
this Lease shall continue in full force and effect as a direct lease between
such successor landlord and Tenant upon all of the terms, conditions and
covenants set forth in this Lease except that such successor landlord shall not
be:
(i) liable for any act or omission of Landlord (except to the extent
such act or omission is a default under this Lease and continues beyond the date
when such successor landlord succeeds to Landlord's interest and Tenant gives
notice of such act or omission to such successor landlord);
(ii) subject to any defense, claim, counterclaim, set-off or offset
which Tenant may have against Landlord (except as provided in clause (i) above,
Section 4.2(c) and in Articles 13 and 14);
(iii) bound by any prepayment of more than one month's Rent to any
prior landlord;
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(iv) bound by any obligation to make any payment to Tenant which was
required to be made prior to the time such successor landlord succeeded to
Landlord's interest other than pursuant to Section 4.2;
(v)bound by any obligation to perform any work or to make improvements
to the Premises except for (x) repairs and maintenance required to be made by
landlord under this Lease, and (y) repairs to the Premises as a result of damage
by fire or other casualty or a partial condemnation pursuant to the provisions
of this Lease, but only to the extent that such repairs can reasonably be made
from the net proceeds of any insurance or condemnation awards, respectively,
actually made available to such successor landlord; or
(vi) bound by any modification, amendment or renewal of this Lease
made without the consent of any Lessor or Mortgagee of which Tenant has been
provided notice (other than pursuant to the express provisions of Articles 37
and 38).
Section 10.2 Mortgage or Superior Lease Defaults. Any Mortgagee may elect
that this Lease shall have priority over the Mortgage that it holds and, upon
notification to Tenant by such Mortgagee, this Lease shall be deemed to have
priority over such Mortgage, regardless of the date of this Lease. In connection
with any financing of the Real Property, the Building or of the interest of the
lessee under any Superior Lease, Tenant shall consent to any reasonable
modifications of this Lease requested by any lending institution, provided such
modifications do not increase the obligations, or adversely affect the rights,
of Tenant under this Lease other than to a de minimis extent in any case.
Section 10.3 Tenant's Termination Right. Except as provided in Section13.3,
as long as any Superior Lease or Mortgage shall exist, Tenant shall not seek to
terminate this Lease by reason of any act or omission of Landlord (a) until
Tenant shall have given notice of such act or omission to all Lessors and/or
Mortgagees, and (b) until a reasonable period of time shall have elapsed
following the giving of notice of such default and the expiration of any
applicable notice or grace periods (unless such act or omission is not capable
of being remedied within a reasonable period of time) during which period such
Lessors and/or Mortgagees shall have the right, but not the obligation, after
obtaining possession of the Building to remedy such act or omission and
thereafter diligently proceed to so remedy such act or obligation. If any Lessor
or Mortgagee elects to remedy such act or omission of Landlord, Tenant shall not
seek to terminate this Lease so long as such Lessor or Mortgagee is proceeding
with reasonable diligence to effect such remedy.
Section 10.4 Applicability. The provisions of this Article shall (a) inure
to the benefit of Landlord, any future owner of the Building or the Real
Property, any Lessor or Mortgagee and any sublessor thereof and (b) apply
notwithstanding that, as a matter of law, this Lease may terminate upon the
termination of any Superior Lease or the foreclosure of any Mortgage.
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Section 10.5 Future Condominium Declaration. This Lease and Tenant's rights
hereunder are and will be subject and subordinate to any condominium
declaration, by-laws and other instruments (collectively, the "Declaration")
which may be recorded in order to subject the Building to a condominium form of
ownership pursuant to Article 9-B of the New York Real Property Law or any
successor statute, provided that the Declaration does not by its terms increase
the Rent or increase Tenant's non-Rent obligations under this Lease (other than
to a de minimis extent) or adversely affect Tenant's rights under this Lease
(other than to a de minimis extent). At Landlord's request, and subject to the
foregoing proviso, and provided Tenant shall receive a non-disturbance agreement
reasonably satisfactory to it, Tenant will execute and deliver to Landlord an
amendment of this Lease confirming such subordination and modifying this Lease
to conform to such condominium regime.
Section 10.6 Non-Disturbance Agreements. Landlord represents that there
is no Superior Lease and the only existing Mortgagee is Lehman Brothers Holdings
Inc. ("Lehman"). Landlord shall use reasonable efforts to obtain for Tenant, at
no cost to Landlord, the SNDA referred to below. If Landlord shall fail to
deliver to Tenant a subordination and non-disturbance agreement (the "SNDA")
from Lehman substantially in the form annexed hereto as Exhibit H within 60 days
following execution and delivery of this Lease by both parties, Tenant shall
have the right for 10 days after the expiration of such 60-day period to cancel
this Lease by giving Landlord notice of such election, whereupon this Lease
shall become null and void as of the date such notice is given, provided that if
Landlord shall deliver the SNDA to Tenant within 10 days following receipt of
notice of cancellation from Tenant, this Lease shall continue and Tenant shall
have no right to cancel it. If no notice is given within such 10-day period
(time being of the essence), then Tenant's right to cancel this Lease shall be
deemed waived. As a condition to Tenant's agreement hereunder to subordinate
Tenant's interest in this Lease to any future Mortgage or future Superior Lease
made between Landlord and any Mortgagee or Lessor, as the case may be, Landlord
shall obtain from each such future Mortgagee and Lessor, as the case may be, a
subordination and non-disturbance agreement in the standard form customarily
employed by such Mortgagee or Lessor, as the case may be. Any agreement
substantially in the form of a subordination and non-disturbance agreement
previously executed by Tenant in connection with this Lease shall be deemed
satisfactory to Tenant. If Tenant shall fail or refuse, for any reason, to
execute and deliver to Landlord a subordination and non-disturbance agreement in
proper form within 10 days after delivery thereof to Tenant, then Tenant's
interest under this Lease shall be subordinate to the future Mortgage or future
Superior Lease in question.
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ARTICLE 11
SERVICES
Section 11.1 Elevators. Landlord, at its expense, shall provide passenger
elevator service to the Premises at all times, and at least one freight elevator
serving the Premises available upon Tenant's prior request, on a non-exclusive
"first come, first serve" basis with other Building tenants, on all Business
Days from 8:00 a.m. to 4:30 p.m.
Section 11.2 Heating, Ventilation and Air Conditioning. (a) Landlord shall
furnish to the Premises heating, ventilation and air-conditioning ("HVAC") in
accordance with the standards set forth in Exhibit E on all Business Days from
8:00 a.m. to 6:00 p.m. Landlord, at its expense, shall repair and maintain the
HVAC System in good working order, provided repairs required as a result of the
negligence or willful misconduct of Tenant, its agents or employees, shall,
subject to the provisions of Section 12.2, be performed at Tenant's expense.
Landlord shall have access to all air-cooling, fan, ventilating and machine
rooms and electrical closets and all other mechanical installations of Landlord
(collectively, "Mechanical Installations"), and Tenant shall not construct
partitions or other obstructions which may interfere with Landlord's access
thereto or the moving of Landlord's equipment to and from the Mechanical
Installations. Neither Tenant, nor its agents, employees or contractors shall at
any time enter the Mechanical Installations or tamper with, adjust, or otherwise
affect such Mechanical Installations.
(b) Landlord shall not be responsible if the normal operation of the
Building System providing HVAC to the Premises (the "HVAC System") shall fail to
provide cooled or heated air, as the case may be, in accordance with the
specifications set forth in Exhibit E by reason of (i) any machinery or
equipment installed by or on behalf of Tenant or any person claiming through or
under Tenant, which shall have an electrical load in excess of the average
electrical load and human occupancy factors for the HVAC System as designed, as
the case may be, or (ii) any rearrangement of partitioning or other Alterations
(including the Initial Installations) made or performed by or on behalf of
Tenant or any person claiming through or under Tenant. Tenant shall install, if
missing, blinds or shades on all windows, which blinds and shades shall be
subject to Landlord's approval, and shall keep all of the operable windows in
the Premises closed, and lower the blinds when necessary because of the sun's
position, whenever the HVAC System is in operation or when and as reasonably
required by any Requirement. Tenant at all times shall cooperate fully with
Landlord and shall abide by the rules and regulations which Landlord may
reasonably prescribe for the proper functioning and protection of the HVAC
System.
Section 11.3 Overtime Freight Elevators and HVAC. The Rent does not reflect
or include any charge to Tenant for the furnishing of any freight elevator
service or HVAC to the Premises during any periods other than for the hours and
days set forth in Sections 11.1 and 11.2 hereof ("Overtime Periods"). Landlord
shall not be required to furnish any such
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services during Overtime Periods unless Tenant delivers notice to Landlord's
property management office serving the Building requesting such services at
least 24 hours prior to the time at which such services are to be provided, but
Landlord shall use reasonable efforts (without obligation to incur any
additional cost) to arrange such service on such shorter notice as Tenant shall
provide. If Landlord furnishes freight elevator service to the Premises during
Overtime Periods, Tenant shall pay to Landlord Landlord's then established rates
for such service in the Building. If Landlord shall furnish HVAC to the Premises
during Overtime Periods, Tenant shall pay to Landlord Landlord's then
established rates per floor for such service in the Building, which rate is on
the date of this Lease $150 per hour. Notwithstanding anything to the contrary
provided in this Article 11, on a single weekend during which Tenant initially
moves into the Premises for the conduct of its business, upon 5 days' prior
notice from Tenant to Landlord, Landlord shall make available to Tenant freight
elevator service in accordance with Landlord's then current rules and
regulations applicable thereto from 8:00 p.m. on the "move-in" Friday until 7:00
p.m. on the following Sunday at no cost to Tenant.
Section 11.4 Cleaning. Landlord shall cause the Premises (excluding any
portions thereof used for the storage, preparation, service or consumption of
food or beverages, as an exhibition area or classroom, for storage, as a
shipping room, mail room or similar purposes, for private bathrooms, showers or
exercise facilities, as a trading floor, or primarily for operation of computer,
data processing, reproduction, duplicating or similar equipment) to be cleaned,
substantially in accordance with the standards set forth in Exhibit F. Any areas
of the Premises requiring cleaning which Landlord is not required to clean under
this Section 11.4, and any additional cleaning of any portion of the Premises
requested by Tenant shall be done at Tenant's expense, by Landlord's employees
or Landlord's contractor, at rates which shall be competitive with rates of
other cleaning contractors providing services to first-class office buildings in
midtown Manhattan. Landlord and its cleaning contractor and their respective
employees shall have access to the Premises at all times except between 8:00
A.M. and 6:00 P.M. on Business Days.
Section 11.5 Water. Landlord, at Landlord's expense, shall provide to the
Premises cold water for drinking, cleaning, dishwasher and lavatory purposes. If
Tenant requires or uses water or steam for any additional purposes, Landlord may
install a meter to measure the water or steam furnished. Tenant shall pay the
cost of such installation, and for all maintenance, repairs and replacements
thereto, and for the reasonable charges of Landlord for the water or steam
furnished. Tenant shall also pay Landlord's reasonable charge for any required
pumping or heating thereof, and any sewer rent, tax and/or charge now or
hereafter assessed or imposed upon the Premises or the Real Property pursuant to
any Requirement. If any tax is imposed upon Landlord's receipts from the sale or
resale of water or steam to Tenant, Tenant shall reimburse Landlord for such
tax, if and to the extent permitted by law.
Section 11.6 Refuse and Rubbish Removal. Landlord shall provide refuse and
rubbish removal services at the Premises for ordinary office refuse and rubbish
pursuant to
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regulations reasonably established by Landlord. Tenant shall pay to Landlord,
within 20 days after delivery of an invoice therefor, Landlord's reasonable
charge for such removal to the extent that the refuse generated by Tenant
exceeds the refuse and rubbish customarily generated by executive and general
office tenants. Tenant shall not dispose of any refuse and rubbish in the public
areas of the Building, and if any Tenant Party does so, Tenant shall be liable
for Landlord's reasonable charge for such removal. Tenant shall cause all Tenant
Parties to observe such additional rules and regulations regarding rubbish
removal and/or recycling as Landlord may, from time to time, reasonably impose.
Section 11.7 Condenser Water. Landlord shall provide condenser water in
connection with Tenant's independent supplemental air-conditioning units, which
shall not exceed 10 tons in the aggregate and which shall be installed in
accordance with the provisions of Article 5 hereof. Tenant shall pay Landlord an
annual charge for such condenser water at Landlord's then established rate for
condenser water, which charge is, on the date of this Lease, $250 per ton and
which charge shall be payable in equal monthly installments together with
Tenant's payment of Fixed Rent and shall be payable whether or not Tenant
utilizes such amount of condenser water. If Tenant fails to utilize any quantity
of condenser water for two years or more, Landlord shall have the right upon
notice to Tenant to irrevocably reduce the number of tons of condenser water to
which Tenant is entitled hereunder by the number of such unutilized tons (unless
Tenant notifies Landlord within ten days after Tenant's receipt of such notice
from Landlord that it anticipates utilizing a portion or all of such unutilized
tons of condenser water, in which case Landlord shall only have the right to
reduce the number of tons of condenser water to which Tenant is then entitled by
such number as Tenant does not anticipate utilizing), provided, however, that
Landlord shall have the right upon further notice to Tenant to reduce the number
of tons of condenser water to which Tenant is then entitled by any number of
tons of condenser water that Tenant has reserved in its notice to Landlord if
Tenant fails to utilize any such reserved tons prior to the expiration of the
cooling season (i.e., May 1 to September 30) next following Tenant's receipt of
the first notice from Landlord), in which case Landlord shall only charge Tenant
for such lower number of tons of condenser water. In addition to the foregoing
charges there shall be a one-time "tap-in" fee equal to $1,500 per ton of unit
capacity, payable within 20 days after rendition of a bill therefor. Landlord
shall not be liable to Tenant for any failure or defect in the supply or
character of condenser water supplied to Tenant by reason of any Requirement,
act or omission of the public service company serving the Building or for any
other reason not attributable to the negligence or willful misconduct of
Landlord, its agents, contractors and employees.
Section 11.8 Service Interruptions. Landlord reserves the right to suspend
any service when necessary, by reason of Unavoidable Delays, accidents or
emergencies, or for repairs, alterations or improvements which, in Landlord's
reasonable judgment, are necessary or appropriate until such Unavoidable Delay,
accident or emergency shall cease or such repairs, alterations or improvements
are completed, and Landlord shall not be liable to Tenant for any interruption,
curtailment or failure to supply services. Landlord shall use
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reasonable efforts to restore such service, remedy such situation and minimize
any interference with Tenant's business, provided that Landlord shall have no
obligation to employ contractors or labor at overtime or other premium pay
rates, or to incur any other overtime costs or additional expenses whatsoever.
Except as otherwise expressly provided in Section 11.9, the exercise of any such
right or the occurrence of any such failure by Landlord shall not (a) constitute
an actual or constructive eviction, in whole or in part, (b) entitle Tenant to
any compensation, abatement or diminution of Rent, (c) relieve Tenant from any
of its obligations under this Lease, or (d) impose any liability upon Landlord
by reason of inconvenience to Tenant, or interruption of Tenant's business, or
otherwise.
Section 11.9 Rent Abatement. Notwithstanding anything to the contrary
contained in this Lease, if Tenant is unable to use the Premises for the
ordinary conduct of Tenant's business due solely to (a) an interruption of an
Essential Service (as hereinafter defined) resulting from Landlord's performance
of an improvement to the Building or (b) Landlord's breach of an obligation
under this Lease to perform repairs or replacements which results in Landlord's
failure to provide an Essential Service, in each case other than as a result of
Unavoidable Delays, casualty or condemnation, and such condition continues for a
period in excess of 10 consecutive Business Days after (i) Tenant furnishes a
notice to Landlord (the "Abatement Notice") stating that Tenant's inability to
use the Premises is solely due to such condition, (ii) Tenant does not actually
use or occupy the Premises during such period for the ordinary conduct of its
business and (iii) such condition has not resulted from the negligence or
misconduct of any Tenant Party, then Fixed Rent, Tenant's Tax Payment and
Tenant's Operating Payment shall be abated on a per diem basis for the period
commencing on the 11th Business Day after Tenant delivers the Abatement Notice
to Landlord and ending on the earlier of (x) the date Tenant reoccupies any
portion of the Premises, and (y) the date on which such condition is
substantially remedied. "Essential Service" shall mean a service which Landlord
is obligated under this Lease to provide to Tenant which if not provided shall
(1) effectively deny access to the Premises, (2) threaten the health or safety
of any occupants of the Premises or (3) prevent the usage of more than 25% of
the Premises for the ordinary conduct of Tenant's business.
Section 11.10 Access to Premises. Subject to Unavoidable Delay, security
requirements, service interruptions, Rules and Regulations, and any other events
beyond Landlord's control, Tenant shall have access to the Premises 24 hours a
day, 7 days a week.
ARTICLE 12
INSURANCE; PROPERTY LOSS OR DAMAGE; REIMBURSEMENT
Section 12.1 Tenant's Insurance. (a) Tenant, at its expense, shall
obtain and keep in full force and effect during the Term and prior to having
access to the Premises:
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(i) a policy of commercial general liability insurance on an
occurrence basis against claims for personal injury, death and/or property
damage occurring in or about the Premises or the Building, under which
Tenant is named as the insured and Landlord, Landlord's managing agent, any
Lessors, any Mortgagees and any other parties whose names shall have been
furnished by Landlord to Tenant from time to time are named as additional
insureds, which insurance shall provide primary coverage without
contribution from any other insurance carried by or for the benefit of
Landlord, Landlord's managing agent or any Lessors or Mortgagees named as
additional insureds, and Tenant agrees to obtain blanket broad-form
contractual liability coverage to insure its indemnity obligations set
forth in Article 32 hereof. The minimum limits of liability shall be a
combined single limit with respect to each occurrence and in the aggregate
in an amount of not less than $10,000,000; provided, however, that Landlord
shall during the Renewal Term retain the right to require Tenant to
increase such coverage, from time to time, to that amount of insurance
which in Landlord's reasonable judgment is then being customarily required
by landlords for similar office space in first-class buildings in the City
of New York. Tenant may provide such insurance coverage as part of a
blanket or umbrella policy, which includes other premises of Tenant,
provided the aggregate limits of insurance coverage required to be in
effect for the Premises pursuant to the terms hereof shall not be reduced
as a result of claims made against other premises or property of Tenant
covered under such policies, and such blanket or umbrella polices shall
comply with the terms hereof. The deductible or self insured retention for
such policy shall in no event exceed $10,000 per occurrence at any time. If
the aggregate limit applying to the Premises is reduced by the payment of a
claim or establishment of a reserve equal to or greater than 50% of the
annual aggregate, Tenant shall immediately arrange to have the aggregate
limit restored by endorsement to the existing policy or the purchase of an
additional insurance policy unless, in Landlord's reasonable judgment,
Tenant maintains sufficient excess liability insurance (with a drop down
endorsement) to satisfy the liability requirements of this Lease without
the reinstatement of the aggregate limit;
(ii) insurance against loss or damage by fire, and such other risks
and hazards as are insurable under then available standard forms of "all
risk" property insurance policies with extended coverage, insuring Tenant's
Property, and all Specialty Alterations for the full insurable value
thereof or replacement cost value thereof, having a reasonable deductible
amount, if any, as reasonably determined by Landlord;
(iii) during the performance of any Alteration, until completion
thereof, Builder's risk insurance on an "all risk" basis and on a completed
value form including a Permission to Complete and Occupy endorsement, for
full replacement value covering the interest of Landlord and Tenant (and
their respective contractors and subcontractors), any Mortgagee and any
Lessor in all work incorporated in the Building and all materials and
equipment in or about the Premises;
(iv) Workers' Compensation Insurance, as required by law;
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(v) Business Interruption Insurance; and
(vi) such other insurance in such amounts as Landlord, any Mortgagee
and/or any Lessor may reasonably require from time to time, and which is
then customarily required from office tenants by owners of first-class
office buildings in Manhattan.
(b) All insurance required to be carried by Tenant pursuant to the terms of
this Lease (i) shall contain a provision that (A) no act or omission of Tenant
other than intentional acts shall affect or limit the obligation of the
insurance company to pay the amount of any loss sustained, (B) the policy shall
not be cancelled nor shall any material change in coverage be made thereto
unless Landlord, Lessors and Mortgagees of which Tenant has notice shall have
received 30 days' prior notice of such cancellation or material change, by
certified mail, return receipt requested, and (C) Tenant shall be solely
responsible for the payment of all premiums under such policies and Landlord,
Lessors and Mortgagees shall have no obligation for the payment thereof, and
(ii) shall be effected under valid and enforceable policies issued by reputable
and independent insurers permitted to do business in the State of New York and
rated in Best's Insurance Guide, or any successor thereto (or if there be none,
an organization having a national reputation) as having a Best's Rating of "A-"
and a "Financial Size Category" of at least "X" or, if such ratings are not then
in effect, the equivalent thereof or such other financial rating as Landlord may
at any time consider appropriate.
(c) On or prior to the Construction Period Start Date, Tenant shall deliver
to Landlord appropriate policies of insurance or certificates of insurance as
provided below, including evidence of waivers of subrogation required to be
carried by each party pursuant to this Article 12. Evidence of each renewal or
replacement of a policy shall be delivered by Tenant to Landlord at least 10
days prior to the expiration of such policy. In lieu of the policies of
insurance required to be delivered to Landlord pursuant to this Article (the
"Policies"), Tenant may deliver to Landlord a certification from Tenant's
insurance company (on an "Accord" form or the equivalent) and a related
endorsement which shall be binding on Tenant's insurance company, and which
shall expressly provide that such certification (i) conveys to Landlord and any
other named insured and/or additional insureds thereunder (the "Insured
Parties") all the rights and privileges afforded under the applicable Policies
as primary insurance, and (ii) contains an unconditional obligation of the
insurance company to advise all Insured Parties in writing by certified mail,
return receipt requested, at least 30 days in advance of any termination or
change to the applicable Policies that would affect the interest of any of the
Insured Parties.
Section 12.2 Waiver of Subrogation. Landlord and Tenant shall each procure
an appropriate clause in or endorsement to any property insurance covering the
Premises, the Building and personal property, fixtures and equipment located
therein, wherein the insurance companies shall waive subrogation or consent to a
waiver of right of recovery, and, notwithstanding any provision of this Lease to
the contrary, Landlord and Tenant agree to
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release, not to make any claim against, or seek to recover from, the other for
any loss or damage to its property or the property of others resulting from fire
and other hazards to the extent covered by such property insurance regardless of
the amount of any self-insurance or deductible; provided, however, that the
release, discharge, exoneration and covenant not to sue contained herein shall
be limited by and coextensive with the terms and provisions of the waiver of
subrogation or waiver of right of recovery.
Section 12.3 Landlord's Insurance. Landlord shall keep the Building insured
against damage and destruction by fire, vandalism, and other perils in the
amount of the full replacement value of the Building (as determined for
insurance purposes) as the value may exist from time to time, exclusive of
foundations and footings, or such lesser amount as will avoid co-insurance.
Landlord shall maintain contractual and comprehensive general liability
insurance, including bodily injury and property damage, with a minimum combined
single limit of liability of $1,000,000 for bodily injury or death of any person
occurring in or about the Building and $3,000,000 for injury, death, or damages
resulting to more than one person in any one occurrence. Notwithstanding the
foregoing, in the event Landlord is an institutional owner, then Landlord may
elect to self-insure with respect to the insurance coverages required by the
terms of this Section 12.3. Tenant acknowledges that Landlord shall not carry
insurance on, and shall not be responsible for, (a) damage to any Specialty
Alterations, (b) Tenant's Property, and (c) any loss suffered by Tenant due to
interruption of Tenant's business.
ARTICLE 13
DESTRUCTION - FIRE OR OTHER CAUSE
Section 13.1 Restoration. If the Premises are damaged by fire or other
casualty, or if the Building is damaged such that Tenant is deprived of
reasonable access to the Premises, Tenant shall give prompt notice to Landlord,
and the damage shall be repaired by Landlord, at its expense, to substantially
the condition of the Premises prior to the damage, subject to the provisions of
any Mortgage or Superior Lease, but Landlord shall have no obligation to repair
or restore (a) Tenant's Property or (b) any Specialty Alterations. Until such
time as (x) the restoration of the Premises is Substantially Completed or would
have been Substantially Completed but for Tenant Delay, (y) Landlord notifies
Tenant of same and (z) Landlord provides Tenant access to the Premises, Fixed
Rent, Tenant's Tax Payment and Tenant's Operating Payment shall be reduced in
the proportion by which the area of the part of the Premises (excluding any
portion thereof used principally for storage) which is not usable (or
accessible) and is not used by Tenant bears to the total area of the Premises
(excluding any such portion).
Section 13.2 Landlord's Termination Right. Notwithstanding anything to the
contrary contained in Section 13.1, if the Building is so damaged that in
Landlord's opinion,
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substantial alteration, demolition, or reconstruction of the Building is
required (whether or not the Premises are so damaged or rendered untenantable),
then in such event, Landlord may, not later than 60 days following the date of
the damage, give Tenant a notice terminating this Lease, provided that Landlord
may not terminate this Lease unless Landlord similarly terminates the leases of
other office tenants in the Building aggregating at least either (a) 33% of the
portion of the Building occupied for office purposes immediately prior to such
damage or (b) 50% of the rentable area of the Building located in the elevator
bank servicing the Premises. If this Lease is so terminated, (i) the Term shall
expire upon the date set forth in Landlord's notice, which shall not be less
than 30 days after such notice is given, and Tenant shall vacate the Premises
and surrender the same to Landlord no later than the date set forth in the
notice, (ii) Tenant's liability for Rent shall cease as of the date of the
damage, and (iii) any prepaid Rent for any period after the date of the damage
shall be refunded by Landlord to Tenant and the Security Deposit, if any, then
held by Landlord shall be refunded to Tenant, provided there is then no default
under this Lease.
Section 13.3 Tenant's Termination Right. (a) If the Premises are totally
damaged and are thereby rendered wholly untenantable, or if the Building shall
be so damaged that Tenant is deprived of reasonable access to the Premises, and
if Landlord elects to restore the Premises, Landlord shall, within 60 days
following the date of the damage, cause a contractor or architect selected by
Landlord to give notice (the "Restoration Notice") to Tenant of the date by
which such contractor or architect estimates the restoration of the Premises
shall be Substantially Completed. If such date, as set forth the Restoration
Notice, is more than 15 months from the date of such damage, then Tenant shall
have the right to terminate this Lease by giving notice (the "Termination
Notice") to Landlord not later than 30 days following Tenant's receipt of the
Restoration Notice. If Tenant delivers to Landlord a Termination Notice, this
Lease shall be deemed to have terminated as of the date of the giving of the
Termination Notice, in the manner set forth in the second sentence of Section
13.2.
(b) If Tenant shall not have elected to, or was not entitled to, terminate
this Lease in accordance with Section 13.3(a) and Landlord shall fail to
Substantially Complete its restoration work on or before the later to occur of
15 months after the date of such damage or 60 days after the date upon which
Landlord's contractor estimated such restoration would be Substantially
Completed, in either case, subject to extension (not to exceed 90 days in the
aggregate) for delays due to Unavoidable Delays, Tenant may elect, as its sole
remedy, to terminate this Lease upon 30 days notice to Landlord given not
earlier than the last day of the period specified above, and if Tenant shall
give such a notice this Lease shall terminate on the 30th day following the
giving of such notice unless Landlord shall have Substantially Completed its
reconstruction work by such 30th day. If Landlord shall have Substantially
Completed its restoration work within such 30-day period, Tenant's notice of
termination shall be null and void and this Lease shall remain in full force and
effect.
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Section 13.4 Final 12 Months. Notwithstanding anything set forth to the
contrary in this Article 13, in the event that any damage rendering the Premises
wholly untenantable occurs during the final 12 months of the Term (taking into
account any exercise by Tenant of any renewal option then available to Tenant),
either Landlord or Tenant may terminate this Lease by notice to the other party
within 30 days after the occurrence of such damage and this Lease shall expire
on the 30th day after the date of such notice. For purposes of this Section
13.4, the Premises shall be deemed wholly untenantable if due to such damage,
Tenant shall be precluded from using more than 50% of the Premises for the
conduct of its business and Tenant's inability to so use the Premises is
reasonably expected to continue until at least the earlier of the (a) Expiration
Date and (b) the 90th day after the date when such damage occurs.
Section 13.5 Waiver of Real Property Law ss. 227. This Article 13
constitutes an express agreement governing any case of damage or destruction of
the Premises or the Building by fire or other casualty, and Section 227 of the
Real Property Law of the State of New York, which provides for such contingency
in the absence of an express agreement, and any other law of like nature and
purpose now or hereafter in force, shall have no application in any such case.
Section 13.6 Landlord's Liability. Any Building employee to whom any
property shall be entrusted by or on behalf of Tenant shall be deemed to be
acting as Tenant's agent with respect to such property and neither Landlord nor
any of the Indemnitees shall be liable for any damage to such property, or for
the loss of or damage to any property of Tenant by theft or otherwise. None of
the Indemnitees shall be liable for any injury or damage to persons or property
or interruption of Tenant's business resulting from fire or other casualty, any
damage caused by other tenants or persons in the Building or by construction of
any private, public or quasi-public work, or any latent defect in the Premises
or in the Building (except that Landlord shall be required to repair the same to
the extent provided in Article 7). No penalty shall accrue for delays which may
arise by reason of adjustment of fire insurance on the part of Landlord or
Tenant, or Unavoidable Delays, in connection with any repair or restoration of
any portion of the Premises or of the Building. Landlord shall use reasonable
efforts to minimize interference with Tenant's use and occupancy of the Premises
during the performance of any such repair or restoration, provided, however,
that Landlord shall have no obligation to employ contractors or labor at
overtime or other premium pay rates or to incur any other overtime costs or
additional expenses whatsoever. Nothing in this Section 13.6 shall affect any
right of Landlord to be indemnified by Tenant under Article 32 for payments made
to compensate for losses of third parties.
Section 13.7 Windows. If at any time any windows of the Premises are
temporarily closed, darkened or covered over by reason of repairs, maintenance,
alterations or improvements to the Building, or any of such windows are
permanently closed, darkened or covered over due to any Requirement, Landlord
shall not be liable for any damage Tenant may sustain and Tenant shall not be
entitled to any compensation or abatement of any Rent,
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nor shall the same release Tenant from its obligations hereunder or constitute
an actual or constructive eviction.
ARTICLE 14
EMINENT DOMAIN
Section 14.1 (a) Total Taking. If all or substantially all of the Premises,
the Building or the Real Property shall be acquired or condemned for any public
or quasi-public purpose, this Lease shall terminate and the Term shall end as of
the date of the vesting of title, with the same effect as if such date were the
Expiration Date, and Rent shall be prorated and adjusted as of such date.
(b) Partial Taking. If only a part of the Premises, the
Building or the Real Property shall be acquired or condemned, this Lease and the
Term shall continue in full force and effect, provided that from and after the
date of the vesting of title, the Fixed Rent, Tenant's Tax Payment, Tenant's
Operating Payment and Tenant's Proportionate Share shall be modified to reflect
the reduction of the Premises and/or the Building as a result of such
acquisition or condemnation.
(c) Landlord's Termination Right. Whether or not the Premises
are affected, Landlord may give to Tenant, within 60 days following the date
upon which Landlord receives notice that all or a portion of the Building or the
Real Property has been acquired or condemned, a notice of termination of this
Lease, provided that Landlord elects to terminate leases (including this Lease)
affecting at least either (i) 33% of the portion of the Building occupied for
office purposes immediately prior to such acquisition or condemnation or (ii)
50% of the rentable area of the Building (excluding any rentable area leased by
Landlord or its Affiliates) located in the elevator bank servicing the Premises.
(d) Tenant's Termination Right. If the part of the Building or
the Real Property so acquired or condemned contains a substantial part of the
total area of the Premises immediately prior to such acquisition or
condemnation, or if, by reason of such acquisition or condemnation, Tenant no
longer has reasonable means of access to the Premises, Tenant may terminate this
Lease by notice to Landlord given within 60 days following the date upon which
Tenant received notice of such acquisition or condemnation. If Tenant so
notifies Landlord, this Lease shall terminate and the Term shall end and expire
upon the date set forth in the notice, which date shall not be more than 30 days
following the giving of such notice. If a part of the Premises shall be so
acquired or condemned and this Lease and the Term shall not be terminated in
accordance with this Section 14.1, Landlord, at Landlord's expense, but without
requiring Landlord to spend more than it collects as an award, shall, subject to
the provisions of any Mortgage or Superior Lease, restore that part of the
Premises not so acquired or condemned to a self-contained rental unit
substantially
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equivalent (with respect to character, quality, appearance and services) to that
which existed immediately prior to such acquisition or condemnation, excluding
Tenant's Property and/or Specialty Alterations.
(e) Apportionment of Rent. Upon any termination of this Lease
pursuant to the provisions of this Article 14, Fixed Rent and payments for Taxes
and Operating Expenses shall be apportioned as of, and shall be paid or refunded
up to and including, the date of such termination.
(f) Applicability. The provisions of Sections 14.1 and 14.2
shall not apply to any acquisition or condemnation of all or any part of the
Premises for a period of 12 months or less.
Section 14.2 Awards. Upon any acquisition or condemnation of all or any
part of the Real Property, Landlord shall receive the entire award for any such
acquisition or condemnation, and Tenant shall have no claim against Landlord or
the condemning authority for the value of any unexpired portion of the Term,
Tenant's Alterations or improvements; and Tenant hereby assigns to Landlord all
of its right in and to such award. Nothing contained in this Article 14 shall be
deemed to prevent Tenant from making a separate claim in any condemnation
proceedings for the then value of any Tenant's Property or Specialty Alteration
included in such taking and for any moving expenses, provided any such award is
in addition to, and does not result in a reduction of, the award made to
Landlord.
Section 14.3 Temporary Taking. Notwithstanding the provisions of Section
14.1, if all or any part of the Premises is acquired or condemned temporarily
for a period of 12 months or less during the Term for any public or quasi-public
use or purpose, Tenant shall give prompt notice to Landlord and the Term shall
not be reduced or affected in any way and Tenant shall continue to pay all Rent
payable by Tenant without reduction or abatement and to perform all of its other
obligations under this Lease, except to the extent prevented from doing so by
the condemning authority, and Tenant shall be entitled to receive any award or
payment from the condemning authority for such use, which award shall be
received, held and applied by Tenant as a trust fund for payment of the Rent
falling due, provided that if the acquisition or condemnation is for a period
extending beyond the Term, such award shall be apportioned between Landlord and
Tenant and Landlord shall receive the portion of such award relating to the
period after the Term. If the acquisition or condemnation of all or any part of
the Premises is for a period of more than 12 months, the provisions of Sections
14.1 and 14.2 shall apply.
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ARTICLE 15
ASSIGNMENT AND SUBLETTING
Section 15.1 (a) No Assignment or Subletting. Except as expressly set forth
herein, Tenant shall not assign, mortgage, pledge, encumber, or otherwise
transfer this Lease, whether by operation of law or otherwise, and shall not
sublet (or underlet), or permit, or suffer the Premises or any part thereof to
be used or occupied by others (whether for desk space, mailing privileges or
otherwise), without Landlord's prior consent in each instance. Any assignment,
sublease, mortgage, pledge, encumbrance or transfer in contravention of the
provisions of this Article 15 shall be void.
(b) Collection of Rent. If, without Landlord's consent, this
Lease is assigned, or any part of the Premises is sublet or occupied by anyone
other than Tenant or this Lease or the Premises or any of Tenant's Property is
encumbered (by operation of law or otherwise), Landlord may collect rent from
the assignee, subtenant or occupant, and apply the net amount collected to the
Rent herein reserved. No such collection of rent shall be deemed to be (i) a
waiver of the provisions of this Article 15, (ii) an acceptance of the assignee,
subtenant or occupant as tenant, or (iii) a release of Tenant from the
performance of Tenant's covenants hereunder. Tenant shall remain fully liable
for the obligations under this Lease.
(c) Further Assignment/Subletting. Landlord's consent to any
assignment or subletting shall not relieve Tenant from the obligation to obtain
Landlord's express consent to any further assignment or subletting. In no event
shall any permitted subtenant assign or encumber its sublease or further sublet
any portion of its sublet space, or otherwise suffer or permit any portion of
the sublet space to be used or occupied by others without the prior consent of
Landlord, which consent, with respect to one further subletting by the
subtenant, shall be granted or withheld by Landlord in accordance with the
requirements of this Article 15.
Section 15.2 Tenant's Notice. (a) If Tenant desires to assign this Lease or
sublet all or any portion of the Premises, Tenant shall give notice thereof
("Tenant's A/S Notice") to Landlord, which shall be accompanied by (i) with
respect to an assignment of this Lease, the date Tenant desires the assignment
to be effective, and (ii) with respect to a sublet of all or a part of the
Premises, (A) the material business terms on which Tenant would sublet such
premises, and (B) a description of the portion of the Premises to be sublet.
Such notice shall be deemed an offer from Tenant to Landlord whereby Landlord
(or Landlord's designee) shall be granted the right, at Landlord's option, (1)
to terminate this Lease with respect to such space as Tenant proposes to
sublease, provided the term of the proposed sublease expires less than 18 months
before the Expiration Date, upon the terms and conditions hereinafter set forth,
or (2) if the proposed transaction is an assignment of this Lease or a
subletting of 75% or more of the rentable square footage of the Premises, to
terminate this
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Lease with respect to the entire Premises. Such option may be exercised by
notice from Landlord to Tenant within 30 days after Landlord's receipt of
Tenant's notice.
(b) Notwithstanding any provision contained in this Article 15
to the contrary, Tenant named herein shall have the right prior to the first
anniversary of the Rent Commencement Date to sublet one or more portions of the
Premises not to exceed 7,500 rentable square feet in the aggregate (the "Free
Sublet Space"), in each case, without any obligation to comply with the
provisions of Section 15.2(a). Such subleases by Tenant (i) shall not be subject
to Landlord's right to terminate this Lease pursuant to Section 15.3 hereof,
(ii) shall be subject to Landlord's consent under Section 15.4, and (iii) shall
not be subject to the provisions of Section 15.7 for rent payable in respect of
the first 5 years of any such sublease.
Section 15.3 Landlord's Termination. If Landlord exercises its option to
terminate all or a portion of this Lease pursuant to Section 15.2: (a) this
Lease shall end and expire with respect to all or a portion of the Premises, as
the case may be, on the date that such assignment or sublease was to commence,
(b) Fixed Rent and Tenant's payments for Taxes and Operating Expenses shall be
apportioned, paid or refunded as of such date, (c) Tenant, upon Landlord's
request, shall enter into an amendment of this Lease ratifying and confirming
such total or partial termination, and setting forth any appropriate
modifications to the terms and provisions hereof, (d) Landlord shall be free to
lease the Premises (or any part thereof) to Tenant's prospective assignee or
subtenant, (e) if this Lease shall end with respect to a portion of the
Premises, Tenant shall, at Tenant's sole cost and expense (unless otherwise
provided in Tenant's A/S Notice), separately demise such portion of the
Premises, and make available all utility services so as to make such portion of
the Premises a self-contained rental unit satisfactory in all respects to
Landlord and in compliance with all Requirements and (f) Landlord shall return
to Tenant the Security Deposit or the Letter of Credit (or in the case of a
partial termination, a pro rata portion thereof) then held by Landlord provided
there is then no default under this Lease.
Section 15.4 Conditions to Assignment/Subletting. (a) If Landlord does not
exercise any of Landlord's options provided under Section 15.2, and provided
that no Event of Default then exists, Landlord's consent to the proposed
assignment or subletting shall not be unreasonably withheld or delayed. Such
consent shall be granted or denied, as the case may be, within 30 days after
Landlord's receipt of (i) a true and complete statement reasonably detailing the
identity of the proposed assignee or subtenant, the nature of its business and
its proposed use of the Premises, (ii) current financial information with
respect to the proposed assignee or subtenant, including its most recent
financial statements, and (iii) any other information Landlord may reasonably
request, provided that:
(A) in Landlord's reasonable judgment, the proposed assignee or
subtenant is engaged in a business or activity, and the Premises will be
used in a manner, which (1) is in keeping with the then standards of the
Building, (2) limits the use of the Premises to the Permitted Uses, and (3)
does not violate any restrictions set forth in this Lease, any Mortgage or
Superior Lease or any negative covenant as to use of the Premises required
by any other lease in the Building;
(B) the proposed assignee or subtenant is a reputable Person or entity
of good character with sufficient financial means to perform all of its
obligations under this Lease or the sublease, as the case may be, and
Landlord has been furnished with reasonable proof thereof, and Landlord or
any Affiliate of Landlord is not litigating against or has been threatened
with litigation by such proposed assignee of subtenant or its Affiliates
within the prior 6 months;
(C) if Landlord has, or reasonably expects to have within six months
thereafter, comparable space available in the Building or an Adjoining
Building, neither the proposed assignee or subtenant nor any Affiliate of
the proposed assignee or subtenant is then an occupant of the Building;
(D) the proposed assignee or subtenant is not a Person or entity (or
Affiliate of a Person or entity) with whom Landlord or Landlord's Agent is
then, or has been within the prior six months, negotiating in connection
with the rental of space in the Building or an Adjoining Building;
(E) the form of the proposed sublease or instrument of assignment
shall be reasonably satisfactory to Landlord and shall comply with the
provisions of this Article 15;
(F) there shall be not more than 3 occupants in each floor of the
Premises (excluding other tenants in the Building outside of the Premises
on any such floor);
(G) Tenant shall, upon demand, reimburse Landlord for all reasonable
out-of-pocket expenses incurred by Landlord in connection with such
assignment or sublease, including any investigations as to the
acceptability of the proposed assignee or subtenant, reviewing any plans
and specifications for Alterations proposed to be made in connection
therewith, and all legal costs reasonably incurred in connection with the
granting of any requested consent, which costs and expenses, subject to the
provisions of Section 5.6, shall not exceed $5,000.
(H) Tenant has not and shall not publicize the availability of the
Premises or list the Premises to be sublet or assigned with a broker, agent
or other entity or otherwise offer the Premises for subletting in any case
at a rental rate of less than the rent at which Landlord is then offering
to rent other space in the Building but the foregoing provision shall not
be deemed to prohibit Tenant from responding to brokers' solicitations and
any other inquiries regarding the proposed rental rate or
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from negotiating a sublease at a lesser rate of rent and consummating the
same insofar as it may be permitted under the provisions of this
Article 15;
(I) if the proposed subtenant or assignee is an entity organized under
the laws of any jurisdiction other than the United States or any state
thereof, or is not a United States citizen, if an individual, such Person
shall waive any immunity to which it may entitled, and shall be subject to
the service of process in, and the jurisdiction of the courts of, the City
and State of New York; and
(J) in Landlord's reasonable judgment, the proposed assignee or
subtenant shall not be of a type or character, or engaged in a business or
activity, or owned or controlled by or identified with any entity, which
may result in protests or civil disorders or commotions at, or other
disruptions of the normal business activities in, the Building.
(b) With respect to each and every subletting and/or assignment authorized
by Landlord under the provisions of this Lease, it is further agreed that:
(i) the form of the proposed assignment or sublease shall be
reasonably satisfactory to Landlord and shall comply with the provisions of
this Article;
(ii) no sublease shall be for a term ending later than one day prior
to the Expiration Date of this Lease;
(iii) no subtenant shall take possession of any part of the Premises
until an executed counterpart of such sublease has been delivered to
Landlord and approved by Landlord as provided in Section 15.4(a);
(iv) if an Event of Default shall occur at any time prior to the
effective date of such assignment or subletting, then Landlord's consent
thereto, if previously granted, shall be immediately deemed revoked without
further notice to Tenant, and if such assignment or subletting would have
been permitted without Landlord's consent pursuant to Section 15.8, such
permission shall be void and without force and effect, and in either such
case, any such assignment or subletting shall constitute a further Event of
Default hereunder; and
(v) each sublease shall be subject and subordinate to this Lease and
to the matters to which this Lease is or shall be subordinate, it being the
intention of Landlord and Tenant that Tenant shall assume and be liable to
Landlord for any and all acts and omissions of all subtenants and anyone
claiming under or through any subtenants which, if performed or omitted by
Tenant, would be a default under this Lease; and Tenant and each subtenant
shall be deemed to have agreed that upon the occurrence and during the
continuation of an Event of Default hereunder, Tenant has
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hereby assigned to Landlord, and Landlord may, at its option, accept such
assignment of, all right, title and interest of Tenant as sublandlord under
such sublease, together with all modifications, extensions and renewals
thereof then in effect, and such subtenant shall, at Landlord's option and
upon notice from Landlord, attorn to Landlord pursuant to the then
executory provisions of this Lease other than the monetary terms of this
Lease, which monetary terms shall be governed by the terms of such
sublease, except that Landlord shall not be (A) liable for any previous act
or omission of Tenant under such sublease, (B) subject to any counterclaim,
offset or defense, which theretofore accrued to such subtenant against
Tenant, (C) bound by any previous modification of such sublease not
consented to by Landlord, or by any prepayment of more than one month's
rent and additional rent under such sublease, (D) bound to return such
subtenant's security deposit, if any, except to the extent that Landlord
shall receive actual possession of such deposit and such subtenant shall be
entitled to the return of all or any portion of such deposit under the
terms of its sublease, or (E) obligated to make any payment to or on behalf
of such subtenant, or to perform any work in the subleased space or the
Building, or in any way to prepare the subleased space for occupancy,
beyond Landlord's obligations under this Lease. The provisions of this
Section 15.4(b)(v) shall be self-operative, and no further instrument shall
be required to give effect to this provision, provided that the subtenant
shall execute and deliver to Landlord any instruments Landlord may
reasonably request to evidence and confirm such subordination and
attornment.
Section 15.5 Binding on Tenant; Indemnification of Landlord.
Notwithstanding any assignment or subletting or any acceptance of Rent by
Landlord from any assignee or subtenant, Tenant shall remain fully liable for
the payment of all Rent due and for the performance of all other terms,
covenants and conditions contained in this Lease on Tenant's part to be observed
and performed, and any default under any term, covenant or condition of this
Lease by any subtenant or assignee or anyone claiming under or through any
subtenant or assignee shall be deemed to be a default under this Lease by
Tenant. Tenant shall indemnify, defend, protect and hold harmless Landlord from
and against any and all Losses (as defined in Section 32.1(b)) resulting from
any claims that may be made against Landlord by the proposed assignee or
subtenant or by any brokers or other Persons claiming a commission or similar
compensation in connection with any proposed assignment or sublease,
irrespective of whether Landlord shall give or decline to give its consent to
any proposed assignment or sublease, or if Landlord shall exercise any of its
options under this Article 15.
Section 15.6 Tenant's Failure to Complete. If Landlord consents to a
proposed assignment or sublease and Tenant fails to execute and deliver to
Landlord such assignment or sublease within 90 days after the giving of such
consent, then Tenant shall again comply with all of the provisions and
conditions of Sections 15.2 and 15.4 hereof before assigning this Lease or
subletting all or part of the Premises.
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Section 15.7 Profits. If Tenant shall enter into any assignment or sublease
permitted hereunder or consented to by Landlord, Tenant shall, within 60 days of
Landlord's consent to such assignment or sublease, deliver to Landlord a
complete list of Tenant's reasonable third-party advertising expenses,
reasonable brokerage, legal and architectural fees, work allowances or costs of
improvements performed by Tenant in connection with such assignment or sublease
and reasonable rent concessions ("Tenant's Expenses") paid or to be paid in
connection with such transaction, together with a list of all of Tenant's
Property to be transferred to such assignee or sublessee. Tenant shall deliver
to Landlord evidence of the payment of such fees promptly after the same are
paid. In consideration of such assignment or subletting, Tenant shall pay to
Landlord:
(a) In the case of an assignment, on the effective date of the
assignment, an amount equal to 50% of all sums and other consideration paid to
Tenant by the assignee for or by reason of such assignment (including sums paid
for the sale or rental of Tenant's Property, less, in the case of a sale
thereof, the then unamortized cost thereof, determined on the basis of Tenant's
federal income tax returns) after first deducting Tenant's Expenses in
connection with such transaction; or
(b) In the case of a sublease, 50% of any consideration
payable under the sublease to Tenant by the subtenant which exceeds on a per
square foot basis the Fixed Rent and Additional Rent accruing during the term of
the sublease in respect of the subleased space (together with any sums paid for
the sale or rental of Tenant's Property, less, in the case of the sale thereof,
the then unamortized cost thereof, determined on the basis of Tenant's federal
income tax returns) after first deducting Tenant's Expenses in connection with
such transaction. The sums payable under this clause shall be paid by Tenant to
Landlord as and when paid by the subtenant to Tenant.
Section 15.8 (a) Transfers. If Tenant is a corporation, the transfer by one
or more transfers, directly or indirectly, by operation of law or otherwise, of
a majority of the stock of Tenant shall be deemed a voluntary assignment of this
Lease; provided, however, that the provisions of this Article 15 shall not apply
to the transfer of shares of stock of Tenant if and so long as Tenant is
publicly traded on a nationally recognized stock exchange. For purposes of this
Section 15.8 the term "transfers" shall be deemed to include the issuance of new
stock or of treasury stock which results in a majority of the stock of Tenant
being held by a Person or Persons that do not hold a majority of the stock of
Tenant on the date hereof. If Tenant is a partnership, the transfer by one or
more transfers, directly or indirectly, by operation of law or otherwise, of a
majority interest in the partnership or otherwise in violation of the provisions
of Section 29.2 shall be deemed a voluntary assignment of this Lease. If Tenant
is a limited liability company, trust, or any other legal entity (including a
corporation or a partnership), the transfer by one or more transfers, directly
or indirectly, of Control of such entity, however characterized, shall be deemed
a voluntary assignment of this Lease. The provisions of Sections 15.1(a), 15.2,
15.3, 15.4(a) and 15.7 shall not apply to transactions with an entity into or
with which Tenant is merged or consolidated or to which substantially
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all of Tenant's assets are transferred so long as (i) such transfer was made for
a legitimate independent business purpose and not for the purpose of
transferring this Lease, (ii) the successor to Tenant has a net worth computed
in accordance with generally accepted accounting principles at least equal to
ten times the annual Fixed Rent, Tenant's Tax Payment and Tenant's Operating
Payment then payable pursuant to this Lease, and (iii) proof satisfactory to
Landlord of such net worth is delivered to Landlord at least 10 days prior to
the effective date of any such transaction. Tenant may also upon prior notice
to, but without the consent, of Landlord permit any Person which Controls, is
Controlled by, or is under common Control with the original Tenant named herein
(a "Related Entity") to sublet all or part of the Premises for any Permitted Use
for so long as such Person remains a Related Entity, provided the Related Entity
is in Landlord's reasonable judgment of a character and engaged in a business
which is in keeping with the standards for the Building and the occupancy
thereof. Such sublease shall not be deemed to vest in any such Related Entity
any right or interest in this Lease or the Premises nor shall it relieve,
release, impair or discharge any of Tenant's obligations hereunder.
(b) Applicability. The limitations set forth in this Section
15.8 shall apply to subtenant(s), assignee(s) and guarantor(s) of this Lease, if
any, and any transfer by any such entity in violation of this Section 15.8 shall
be a transfer in violation of Section 15.1.
(c) Modifications, Takeover Agreements. Any modification,
amendment or extension of a sublease and/or any other agreement by which a
landlord (or its affiliate) of a building other than the Building agrees to
assume or perform the obligations of Tenant under this Lease shall be deemed a
sublease for the purposes of Section 15.1 hereof.
Section 15.9 Assumption of Obligations. Any assignment or transfer, whether
made with Landlord's consent or without Landlord's consent, if and to the extent
permitted hereunder, shall not be effective unless and until the assignee
executes, acknowledges and delivers to Landlord (a) an agreement in form and
substance satisfactory to Landlord whereby the assignee (i) assumes Tenant's
obligations under this Lease and (ii) agrees that, notwithstanding such
assignment or transfer, the provisions of Section 15.1 hereof shall be binding
upon it in respect of all future assignments and transfers and (b) certificates
or policies of insurance as required under Article 12.
Section 15.10 Tenant's Liability. The joint and several liability of Tenant
and any successors-in-interest of Tenant and the due performance of Tenant's
obligations under this Lease shall not be discharged, released or impaired by
any agreement or stipulation made by Landlord, or any grantee or assignee of
Landlord, extending the time, or modifying any of the terms and provisions of
this Lease, or by any waiver or failure of Landlord, or any grantee or assignee
of Landlord, to enforce any of the terms and provisions of this Lease.
Section 15.11 Listings in Building Directory. The listing of any name other
than that of Tenant on the doors of the Premises, the Building directory or
elsewhere shall not vest
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any right or interest in this Lease or in the Premises, nor be deemed to
constitute Landlord's consent to any assignment or transfer of this Lease or to
any sublease of the Premises or to the use or occupancy thereof by others. Any
such listing shall constitute a privilege revocable in Landlord's discretion by
notice to Tenant.
Section 15.12 Lease Disaffirmance or Rejection. If at any time after an
assignment by Tenant named herein, this Lease is not affirmed or rejected in any
proceeding of the types described in Sections 18.1(e) and (f) hereof or any
similar proceeding, or upon a termination of this Lease due to any such
proceeding, Tenant named herein, upon request of Landlord given within 30 days
after such disaffirmance, rejection or termination (and actual notice thereof to
Landlord in the event of a disaffirmance or rejection or in the event of
termination other than by act of Landlord), shall (a) pay to Landlord all Rent
and other charges due and owing by the assignee to Landlord under this Lease to
and including the date of such disaffirmance, rejection or termination, and (b)
as "tenant," enter into a new lease of the Premises with Landlord for a term
commencing on the effective date of such disaffirmance, rejection or termination
and ending on the Expiration Date, unless sooner terminated in accordance
therewith, at the same Rent and upon the then executory terms, covenants and
conditions contained in this Lease, except that (i) the rights of Tenant named
herein under the new lease shall be subject to the possessory rights of any
Persons claiming through or under such assignee or by virtue of any statute or
of any order of any court, (ii) such new lease shall require all defaults
existing under this Lease to be cured by Tenant named herein with due diligence,
and (iii) such new lease shall require Tenant named herein to pay all Rent
which, had this Lease not been so disaffirmed, rejected or terminated, would
have become due under the provisions of this Lease after the date of such
disaffirmance, rejection or termination with respect to any period prior
thereto. If Tenant named herein defaults in its obligations to enter into such
new lease for a period of 10 days after Landlord's request, then, in addition to
all other rights and remedies by reason of default, either at law or in equity,
Landlord shall have the same rights and remedies against Tenant named herein as
if it had entered into such new lease and such new lease had thereafter been
terminated as of the commencement date thereof by reason of Tenant's default
thereunder.
ARTICLE 16
ELECTRICITY
Section 16.1 (a) Submetered Electricity. Landlord shall redistribute or
furnish electricity to or for the use of Tenant in the Premises for the
operation of Tenant's electrical systems and equipment in the Premises, at a
level sufficient to accommodate a demand load of six (6) watts per usable square
foot of office space in the Premises (exclusive of electricity required to
operate the base-Building HVAC System). Tenant shall pay to Landlord, on demand
from time to time, but not more than monthly, for its consumption of electricity
at the Premises, as Additional Rent for such service from and after the
Construction Period
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Start Date, a sum equal to 107% of the product obtained by multiplying (x) the
Cost Per Kilowatt Hour, by (y) the actual number of kilowatt hours of electric
current consumed by Tenant in such billing period. Landlord shall install a
meter or meters, at Landlord's expense, to measure Tenant's consumption of
electricity in the Premises, which meters shall be maintained by Landlord. Where
more than one meter measures Tenant's consumption of electricity in the
Premises, the electricity measured by each meter shall be computed separately
but billed together in accordance with the provisions set forth above. Bills for
such amounts shall be rendered to Tenant at such times as Landlord may elect.
The rate to be paid by Tenant for submetered electricity shall include any taxes
or other charges in connection therewith. If any tax is imposed upon Landlord's
receipts from the sale or resale of electricity to Tenant, Tenant shall
reimburse Landlord for such tax, if and to the extent permitted by law. For any
period during which such meter or meters are not installed or are not
operational in the Premises, the monthly Fixed Rent shall be increased by an
amount equal to the product of (A) $.2083, subject to adjustment for any
increases in electric rates or taxes, and (B) the number of rentable square feet
in the Premises.
Section 16.2 Excess Electricity. Tenant shall at all times comply with the
rules and regulations of the utility company supplying electricity to the
Building. Subject to Tenant's right to use the electric capacity set forth in
Section 16.1, Tenant shall not use any electrical equipment which, in Landlord's
judgment, would exceed the capacity of the electrical equipment serving the
Premises or interfere with the electrical service to other tenants of the
Building. Tenant shall not make or perform, or permit the making or performance
of, any Alterations to wiring installations or other electrical facilities in or
serving the Premises or make any additions to the office equipment or other
appliances in the Premises which utilize electrical energy (other than ordinary
small office equipment) without the prior consent of Landlord, in each instance,
in compliance with Article 5 of this Lease.
Section 16.3 Service Disruption. Landlord shall not be liable in any way to
Tenant for any failure, defect or interruption of, or change in the supply,
character and/or quantity of electric service furnished to the Premises for any
reason except if attributable to the negligence or willful misconduct of
Landlord, nor shall there be any allowance to Tenant for a diminution of rental
value, nor shall the same constitute an actual or constructive eviction of
Tenant, in whole or in part, or relieve Tenant from any of its Lease
obligations, and no liability shall arise on the part of Landlord by reason of
inconvenience, annoyance or injury to business whether electricity is provided
by public or private utility or by any electricity generation system owned and
operated by Landlord. Landlord shall use reasonable efforts to minimize
interference with Tenant's use and occupancy of the Premises as a result of any
such failure, defect or interruption of, or change in the supply, character
and/or quantity of, electric service, provided that Landlord shall have no
obligation to employ contractors or labor at overtime or other premium pay rates
or to incur any other overtime costs or additional expenses whatsoever.
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Section 16.4 Discontinuance of Service. Landlord reserves the right to
discontinue furnishing electricity to Tenant in the Premises on not less than 30
days notice to Tenant, if Landlord discontinues furnishing electricity to
tenants (including Tenant) leasing an aggregate of at least 50% of the rentable
area of the Building, or is required to do so under applicable Requirements. If
Landlord exercises such right, or is compelled to discontinue furnishing
electricity to Tenant, this Lease shall continue in full force and effect and
shall be unaffected thereby, except that from and after the effective date of
such discontinuance, Landlord shall not be obligated to furnish electricity to
Tenant hereunder. If Landlord so discontinues furnishing electricity, Tenant
shall arrange to obtain electricity directly from any utility company or other
electricity provider serving the Premises. Such electricity may be furnished to
Tenant by means of the existing electrical facilities serving the Premises, at
no charge by Landlord, to the extent available, suitable and safe for such
purposes. All other equipment which may be required to obtain electricity of
substantially the same quantity, quality and character shall be installed by
Landlord at the sole cost and expense of (a) Landlord, if Landlord voluntarily
discontinues such service, or (b) Tenant, if (i) Landlord is compelled to
discontinue such service by the public utility or pursuant to applicable
Requirements or (ii) if such discontinuance arises out of the acts of omissions
of Tenant. Landlord shall not voluntarily discontinue furnishing electricity to
Tenant until Tenant is able to receive electricity directly from the utility
company or other company servicing the Building, unless the utility company or
other company is not prepared to furnish electricity to the Premises on the date
required as a result of Tenant's delay or negligence in arranging for service or
Tenant's refusal to provide the utility company or other company with a deposit
or other security requested by the utility company or other company or Tenant's
refusal to take any other action requested by the utility company or other
company.
ARTICLE 17
ACCESS TO PREMISES
Section 17.1 Landlord's Access. (a) Tenant shall permit Landlord,
Landlord's agents, utility companies and other service providers servicing the
Building to erect, use and maintain ducts, pipes and conduits in and through the
Premises provided such use does not cause the usable area of the Premises to be
reduced beyond an immaterial amount. Landlord shall promptly repair any damage
to the Premises or Tenant's Property caused by any work performed pursuant to
this Article. Any pipes, ducts, or conduits installed in or through the Premises
pursuant to this Section 17.1 shall either be concealed behind, beneath or
within then existing partitioning, columns, ceilings or floors located in the
Premises, or completely furred at points immediately adjacent to existing
partitioning columns or ceilings located in the Premises. Subject to the
provisions of Article 4.4, Landlord shall use reasonable efforts to minimize
interference with Tenant's use and occupancy of the Premises during the
performance of such work.
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(b) Landlord, any Lessor or Mortgagee and any other party
designated by Landlord and their respective agents shall have the right to enter
the Premises at all reasonable times, upon reasonable notice (which notice may
be oral) except in the case of emergency, (i) to examine the Premises, (ii) to
show the Premises to prospective purchasers, Mortgagees or Lessors of the
Building and their respective agents and representatives or others, and during
the last 12 months of the Term to prospective lessees of premises in the
Building and (iii) to make such repairs, alterations or additions to the
Premises or the Building (A) as Landlord may deem necessary or appropriate, (B)
which Landlord may elect to perform following Tenant's failure to perform, or
(C) to comply with any Requirements, and Landlord shall be allowed to take all
material into the Premises that may be required for the performance of such work
without the same constituting an actual or constructive eviction of Tenant in
whole or in part and without any abatement of Rent. During any such entry into
the Premises pursuant to this Section 17.1(b), Tenant shall have the right
(unless such entry is necessitated by an emergency) to have a representative
accompany the party entering the Premises but the failure to make such
representative available shall not affect Landlord's right to enter the Premises
as aforesaid.
(c) All parts (except surfaces facing the interior of the
Premises) of all walls, windows and doors bounding the Premises, including
exterior Building walls, exterior core corridor walls, and doors and entrances
(other than doors and entrances solely connecting areas within the Premises),
all balconies, terraces and roofs adjacent to the Premises, all space in or
adjacent to the Premises used for shafts, stacks, risers, fan rooms, electrical
and communication closets, stairways, mail chutes, conduits and other mechanical
facilities, Building Systems and Building facilities are not part of the
Premises, and Landlord shall have the use thereof and access thereto through the
Premises for the purposes of Building operation, maintenance, alteration and
repair.
Section 17.2 Final 2 Months. If, during the last 2 months of the Term,
Tenant removes all or substantially all of Tenant's Property from the Premises,
Landlord may, upon prior notice (which notice may be oral) and at reasonable
hours, renovate and/or redecorate the Premises, without abatement of any Rent or
incurring any liability to Tenant. Such acts shall not be deemed an actual or
constructive eviction and shall have no effect upon this Lease.
Section 17.3 Alterations to Building. Landlord has the right at any time to
(a) change the name, number or designation by which the Building is commonly
known, or (b) alter the Building to change the arrangement or location of
entrances or passageways, concourses, plazas, doors and doorways, and corridors,
elevators, stairs, toilets, or other public parts of the Building without any
such acts constituting an actual or constructive eviction and without incurring
any liability to Tenant, so long as such changes do not deny Tenant access to
the Premises. Landlord shall use reasonable efforts to minimize interference
with Tenant's use and occupancy of the Premises during the making of such
changes or alterations, provided that Landlord shall have no obligation to
employ contractors
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or labor at overtime or other premium pay rates or to incur any other overtime
costs or additional expenses whatsoever.
ARTICLE 18
DEFAULT
Section 18.1 Tenant's Defaults. Each of the following events shall be an
"Event of Default" hereunder:
(a) Tenant fails to pay when due any installment of Fixed Rent
or Additional Rent and such default continues for three Business Days after
notice of such default is given to Tenant, except that if Landlord shall have
given two such notices of default in the payment of any Rent in any consecutive
twelve month period, Tenant shall not be entitled to any further notice of
delinquency in the payment of any Rent or an extended period in which to make
payment until such time as twelve consecutive months shall have elapsed without
Tenant having failed to make any such payment when due, and the occurrence of
any default in the payment of any Rent within such twelve month period after the
giving of two such notices shall constitute an Event of Default; or
(b) Tenant defaults in the observance or performance of any
other term, covenant or condition of this Lease to be observed or performed by
Tenant and such default continues for more than 30 days after notice by Landlord
to Tenant of such default; or if such default is of such a nature that it can be
remedied but cannot be completely remedied within 30 days, Tenant fails to
commence to remedy such default within 30 days after such notice or, with
respect to any such default, Tenant, having commenced such remedy within 30 days
after such notice, fails to diligently prosecute to completion all steps
necessary to remedy such default; or
(c) Tenant's interest in this Lease shall devolve upon or pass
to any Person, whether by operation of law or otherwise, in violation of Article
15; or
(d) Tenant admits in writing its inability to, pay its debts
as they become due; or
(e) Tenant files a voluntary petition in bankruptcy or
insolvency, or is adjudicated a bankrupt or insolvent, or files any petition or
answer seeking any reorganization, liquidation, dissolution or similar relief
under any present or future federal bankruptcy act or any other present or
future applicable federal, state or other statute or law, or makes an assignment
for the benefit of creditors or seeks or consents to or acquiesces in the
appointment of any trustee, receiver, liquidator or other similar official for
Tenant or for all or any part of Tenant's property; or
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(f) if, within 90 days after the commencement of any
proceeding against Tenant, whether by the filing of a petition or otherwise,
seeking bankruptcy, insolvency, reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy act or any other present or future applicable
federal, state or other statute or law, such proceeding shall not have been
dismissed, or if, within 90 days after the appointment of any trustee, receiver,
liquidator or other similar official for Tenant or for all or any part of
Tenant's property, without the consent or acquiescence of Tenant, such
appointment shall not have been vacated or otherwise discharged, or if any lien,
execution or attachment or other similar filing shall be made or issued against
Tenant or any of Tenant's property pursuant to which the Premises shall be taken
or occupied or attempted to be taken or occupied by someone other than Tenant;
or
(g) if Landlord applies or retains any part of the Security
Deposit, and Tenant fails to deposit with Landlord the amount so applied or
retained by Landlord, or to provide Landlord with a replacement Letter of Credit
(as defined in Section 35.2), if applicable, within 5 Business Days after notice
by Landlord to Tenant stating the amount applied or retained.
Upon the occurrence of any one or more of such Events of Default, Landlord may,
at its sole option, give to Tenant three days' notice of cancellation of this
Lease, in which event this Lease and the Term shall come to an end and expire
(whether or not the Term shall have commenced) upon the expiration of such three
day period with the same force and effect as if the date set forth in the notice
was the Expiration Date stated herein; and Tenant shall then quit and surrender
the Premises to Landlord, but Tenant shall remain liable for damages as provided
in Article 19 hereof.
Section 18.2 Tenant's Liability. If, at any time, (a) Tenant shall be
comprised of two or more persons, (b) Tenant's obligations under this Lease
shall have been guaranteed by any person other than Tenant, or (c) Tenant's
interest in this Lease shall have been assigned, the word "Tenant," as used in
Section 18.1 (d), (e) and (f), shall be deemed to mean any one or more of the
Persons primarily or secondarily liable for Tenant's obligations under this
Lease. Any monies received by Landlord from or on behalf of Tenant during the
pendency of any proceeding of the types referred to in this Article shall be
deemed paid as compensation for the use and occupancy of the Premises and the
acceptance of any such compensation by Landlord shall not be deemed an
acceptance of Rent or a waiver on the part of Landlord of any rights under this
Lease.
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ARTICLE 19
REMEDIES AND DAMAGES
Section 19.1 (a) Landlord's Remedies. If any Event of Default occurs, and
this Lease and the Term terminates as provided in Article 18:
(i) Surrender of Possession. Tenant shall quit and surrender the
Premises to Landlord, and Landlord and its agents may immediately, or
at any time after such Event of Default, re-enter the Premises or any
part thereof, without notice, either by summary proceedings, or by any
other applicable action or proceeding, or by force (to the extent
permitted by law) or otherwise in accordance with applicable legal
proceedings (without being liable to indictment, prosecution or
damages therefor), and may repossess the Premises and dispossess
Tenant and any other Persons from the Premises and remove any and all
of their property from the Premises.
(ii) Landlord's Reletting. Landlord, at Landlord's option, may
relet all or any part of the Premises from time to time, either in the
name of Landlord or otherwise, to such tenant or tenants, for any term
ending before, on or after the Expiration Date, at such rental and
upon such other conditions (which may include concessions and free
rent periods) as Landlord, in its sole discretion, may determine.
Landlord shall have no obligation to and shall not be liable for
refusal or failure to relet or, in the event of any such reletting,
for refusal or failure to collect any rent due upon any such
reletting; and no such refusal or failure shall relieve Tenant of, or
otherwise affect, any liability under this Lease. Landlord, at
Landlord's option, may make such alterations, decorations and other
physical changes in and to the Premises as Landlord, in its sole
discretion, considers advisable or necessary in connection with such
reletting or proposed reletting, without relieving Tenant of any
liability under this Lease or otherwise affecting any such liability.
(b) Tenant's Waiver. Tenant, on its own behalf and on behalf of all
persons claiming through or under Tenant, including all creditors, hereby
waives all rights which Tenant and all such Persons might otherwise have
under any Requirement (i) to the service of any notice of intention to
re-enter or to institute legal proceedings, (ii) to redeem, or to re-enter
or repossess the Premises, or (iii) to restore the operation of this Lease,
after (A) Tenant shall have been dispossessed or ejected by judgment or by
warrant of any court or judge, (B) any re-entry by Landlord, or (C) any
expiration or early termination of the term of this Lease, whether such
dispossession, re-entry, expiration or termination shall be by operation of
law or pursuant to the provisions of this Lease. The words "re-enter,"
"re-entry" and "re-entered" as used in this Lease shall not be deemed to be
restricted to their technical legal meanings.
(c) Other Remedies. Upon the breach or threatened breach by Tenant, or
any persons claiming through or under Tenant, of any term, covenant or
condition of this Lease, Landlord shall have the right to enjoin such
breach and to invoke any other remedy allowed by
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law or in equity as if re-entry, summary proceedings and other special
remedies were not provided in this Lease for such breach. The rights to
invoke the remedies set forth above are cumulative and shall not preclude
Landlord from invoking any other remedy allowed at law or in equity.
Section 19.2 (a) Landlord's Damages. If this Lease and the Term expire and
come to an end as provided in Article 18, or by or under any summary proceeding
or any other action or proceeding, or if Landlord shall re-enter the Premises as
provided in Section 19.1, then, in any of such events:
(i) Tenant shall pay to Landlord all Rent payable under this
Lease by Tenant to Landlord up to the Expiration Date or to the date
of re-entry upon the Premises by Landlord, as the case may be;
(ii) Landlord shall be entitled to retain all monies, if any,
paid by Tenant to Landlord, whether as prepaid Rent, the Security
Deposit or otherwise, and to draw upon any Letter of Credit or other
security deposited by Tenant hereunder and retain the proceeds
thereof, which monies, to the extent not otherwise applied to amounts
due and owing to Landlord, shall be credited by Landlord against any
damages payable by Tenant to Landlord;
(iii) Tenant shall pay to Landlord, in monthly installments, on
the days specified in this Lease for payment of installments of Fixed
Rent, any Deficiency; it being understood that Landlord shall be
entitled to recover the Deficiency from Tenant each month as the same
shall arise, and no suit to collect the amount of the Deficiency for
any month, shall prejudice Landlord's right to collect the Deficiency
for any subsequent month by a similar proceeding; and
(iv) whether or not Landlord shall have collected any monthly
Deficiency, Tenant shall pay to Landlord, on demand, in lieu of any
further Deficiency and as liquidated and agreed final damages, a sum
equal to the amount by which the Rent for the period which otherwise
would have constituted the unexpired portion of the Term (assuming
Additional Rent during such period to be the same as had been payable
for the year immediately preceding such termination or re-entry,
increased in each succeeding year by 4% (on a compounded basis))
exceeds the then fair and reasonable rental value of the Premises, for
the same period (with both amounts being discounted to present value
at a rate of interest equal to 2% below the then Base Rate) less the
aggregate amount of Deficiencies theretofore collected by Landlord
pursuant to the provisions of Section 19.2(a)(iii) for the same
period. If, before presentation of proof of such liquidated damages to
any court, commission or tribunal, the Premises, or any part thereof,
shall have been relet by Landlord for the period which otherwise would
have constituted the unexpired portion of the Term, or any part
thereof, the amount of rent reserved upon such reletting shall be
deemed, prima
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facie, to be the fair and reasonable rental value for the part or the
whole of the Premises so relet during the term of the reletting.
(b) Reletting. If the Premises, or any part thereof, shall be relet
together with other space in the Building, the rents collected or reserved
under any such reletting and the expenses of any such reletting shall be
equitably apportioned for the purposes of this Section 19.2. Tenant shall
not be entitled to any rents collected or payable under any reletting,
whether or not such rents exceed the Fixed Rent reserved in this Lease.
Nothing contained in Articles 18 or 19 shall be deemed to limit or preclude
the recovery by Landlord from Tenant of the maximum amount allowed to be
obtained as damages under applicable Requirements, or of any sums or
damages to which Landlord may be entitled in addition to the damages set
forth in this Section 19.2.
Section 19.3 Default Interest; Other Rights of Landlord. Any damages
payable under this Lease and not paid when due shall bear interest at the
Interest Rate from the due date until paid, and the interest shall be deemed
Additional Rent. If Tenant fails to pay any Additional Rent when due, Landlord,
in addition to any other right or remedy, shall have the same rights and
remedies as in the case of a default by Tenant in the payment of Fixed Rent. If
Tenant is in arrears in the payment of Rent, Tenant waives Tenant's right, if
any, to designate the items against which any payments made by Tenant are to be
credited, and Landlord may apply any payments made by Tenant to any items
Landlord sees fit, regardless of any request by Tenant. Landlord reserves the
right, without liability to Tenant and without constituting any claim of
constructive eviction, to suspend furnishing or rendering to Tenant any overtime
Building services or labor, materials or other property or services for which
Tenant is obligated to pay a separate charge under this Lease (excluding
electricity and water), in the event that (but only for so long as) Tenant is in
arrears in paying Landlord for such items for more than five (5) days after
notice from Landlord to Tenant demanding the payment of such arrears.
ARTICLE 20
LANDLORD'S RIGHT TO CURE; FEES AND EXPENSES
If Tenant defaults in the performance of its obligations under this Lease,
Landlord, without thereby waiving such default, may perform such obligation for
the account and at the expense of Tenant: (a) immediately or at any time
thereafter, and without notice, in the case of emergency or in the case the
default (i) materially interferes with the use by any other tenant of any space
in the Building, (ii) materially interferes with the efficient operation of the
Building, (iii) will result in a violation of any Requirement, (iv) will result
in a cancellation of any insurance policy maintained by Landlord, or (v) will
result in a breach of or default under any Superior Lease or Mortgage, and (b)
in any other case if such default continues after 10 days from the date Landlord
gives notice of Landlord's intention so to
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perform the defaulted obligation. All costs and expenses incurred by Landlord in
connection with any such performance by it for the account of Tenant and all
costs and expenses, including reasonable counsel fees and disbursements,
incurred by Landlord in any action or proceeding (including any summary
dispossess proceeding) brought by Landlord to enforce any obligation of Tenant
under this Lease and/or right of Landlord in or to the Premises, shall be paid
by Tenant to Landlord on demand, with interest thereon at the Interest Rate from
the date incurred by Landlord. Except as expressly provided to the contrary in
this Lease, all costs and expenses which, pursuant to this Lease (including the
Rules and Regulations) are incurred by Landlord and payable to Landlord by
Tenant, and all charges, amounts and sums payable to Landlord by Tenant for any
property, material, labor, utility or other services which, pursuant to this
Lease or at the request and for the account of Tenant, are provided, furnished
or rendered by Landlord, shall become due and payable by Tenant to Landlord in
accordance with the terms of the bills rendered by Landlord to Tenant.
ARTICLE 21
NO REPRESENTATIONS BY LANDLORD: LANDLORD'S APPROVAL
Section 21.1 No Representations. Except as expressly set forth herein,
Landlord and Landlord's agents have made no warranties, representations,
statements or promises with respect to (i) the rentable and usable areas of the
Premises or the Building, (ii) the amount of any current or future Operating
Expenses or Taxes, (iii) the compliance with applicable Requirements of the
Premises or the Building, or (iv) the suitability of the Premises for any
particular use or purpose. No rights, easements or licenses are acquired by
Tenant under this Lease by implication or otherwise. Tenant is entering into
this Lease after full investigation and is not relying upon any statement or
representation made by Landlord not embodied in this Lease.
Section 21.2 Consents; Approvals. All consents or approvals of Landlord may
be granted or withheld in Landlord's sole discretion unless specifically
provided to the contrary in this Lease.
Section 21.3 No Money Damages. Wherever in this Lease Landlord's consent or
approval is required, if Landlord refuses to grant such consent or approval,
whether or not Landlord expressly agreed that such consent or approval would not
be unreasonably withheld, Tenant shall not make, and Tenant hereby waives, any
claim for money damages (including any claim by way of set-off, counterclaim or
defense) based upon Tenant's claim or assertion that Landlord unreasonably
withheld or delayed its consent or approval. Tenant's sole remedy shall be an
action or proceeding to enforce such provision, by specific performance,
injunction or declaratory judgment. In no event shall Landlord be liable for,
and Tenant, on behalf of itself and all other Tenant Parties, hereby waives any
claim for, any indirect, consequential or punitive damages, including loss of
profits or business opportunity,
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arising under or in connection with this Lease, even if due to the gross
negligence or willful misconduct of Landlord or its agents or employees.
Notwithstanding anything contained in this Section 21.3 to the contrary, Tenant
shall have the right to submit to arbitration in accordance with Article 39
hereof any dispute in respect of whether Landlord has unreasonably withheld any
consent or approval to any Alteration pursuant to Section 5.1 or any assignment
or subletting pursuant to Section 15.5 requested by Tenant hereunder which
Landlord agreed not to unreasonably withhold hereunder, and Tenant's sole remedy
in all such circumstances shall be that, upon the decision of the arbitrator
that consent was unreasonably withheld, the requested consent or approval shall
be deemed to have been granted as provided above without any further proceedings
or any action being required.
ARTICLE 22
END OF TERM
Section 22.1 Expiration. Upon the expiration or other termination of this
Lease, Tenant shall quit and surrender the Premises to Landlord, vacant, broom
clean and in good order and condition, ordinary wear and tear and damage for
which Tenant is not responsible under the terms of this Lease excepted, and
Tenant shall remove all of Tenant's Property and Tenant's Alterations as may be
required pursuant to Article 5 of this Lease. The foregoing obligation shall
survive the expiration or sooner termination of the Term. If the last day of the
Term or any renewal thereof falls on Saturday or Sunday, this Lease shall expire
on the immediately preceding Business Day.
Section 22.2 Holdover Rent. Landlord and Tenant recognize that the damage
to Landlord resulting from any failure by Tenant to timely surrender possession
of the Premises may be substantial, may exceed the amount of the Rent
theretofore payable hereunder, and will be impossible to accurately measure.
Tenant therefore agrees that if possession of the Premises is not surrendered to
Landlord on or before the Expiration Date or sooner termination of the Term, in
addition to any other rights or remedies Landlord may have hereunder or at law,
Tenant shall (a) pay to Landlord for each month (or any portion thereof) during
which Tenant holds over in the Premises after the Expiration Date or sooner
termination of the Term, a sum equal to the greater of (i) one and one-half
times the Fixed Rent plus one and one-half times Tenant's Tax Payment plus one
and one-half times Tenant's Operating Payment payable under this Lease for each
day of the last full calendar month of the Term in the case of the first 30 days
of any holdover and two times the Fixed Rent plus two times Tenant's Tax Payment
plus two times Tenant's Operating Payment payable under this Lease for each day
of the last full calendar month of the Term in the case of each day thereafter
or (ii) one and one-half times the fair market rental value of the Premises for
such day (as reasonably determined by Landlord), (b) after notice from Landlord
that Landlord has entered into an occupancy agreement with a tenant for the
Premises (or a portion thereof) be liable to Landlord for (i) any payment or
rent concession
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which Landlord may be required to make to any tenant obtained by Landlord for
all or any part of the Premises (a "New Tenant") in order to induce such New
Tenant not to terminate its lease by reason of the holding-over by Tenant, and
(ii) the loss of the benefit of the bargain if any New Tenant shall terminate
its lease by reason of the holding-over by Tenant, and (c) indemnify Landlord
against all claims for damages by any New Tenant. No holding-over by Tenant, nor
the payment to Landlord of the amounts specified above, shall operate to extend
the Term hereof. Nothing herein contained shall be deemed to permit Tenant to
retain possession of the Premises after the Expiration Date or sooner
termination of this Lease, and no acceptance by Landlord of payments from Tenant
after the Expiration Date or sooner termination of the Term shall be deemed to
be other than on account of the amount to be paid by Tenant in accordance with
the provisions of this Article 22. All of Tenant's obligations under this
Article shall survive the expiration or earlier termination of the Term of this
Lease.
Section 22.3 Waiver of Stay. Tenant expressly waives, for itself and for
any Person claiming through or under Tenant, any rights which Tenant or any such
Person may have under the provisions of Section 2201 of the New York Civil
Practice Law and Rules and of any successor law of like import then in force, in
connection with any holdover summary proceedings which Landlord may institute to
enforce the foregoing provisions of this Article 22.
ARTICLE 23
QUIET ENJOYMENT
Provided this Lease is in full force and effect and no Event of Default
then exists, Tenant may peaceably and quietly enjoy the Premises without
hindrance by Landlord or any person lawfully claiming through or under Landlord,
subject to the terms and conditions of this Lease and to all Superior Leases and
Mortgages.
ARTICLE 24
NO SURRENDER; NO WAIVER
Section 24.1 No Surrender or Release. No act or thing done by Landlord or
Landlord's agents or employees during the Term shall be deemed an acceptance of
a surrender of the Premises, and no provision of this Lease shall be deemed to
have been waived by Landlord, unless such waiver is in writing and is signed by
Landlord, and any such waiver shall be effective only for the specific purpose
and in the specific instance in which given. If Tenant at any time desires to
have Landlord sublet the Premises for Tenant's account, Landlord or Landlord's
agents are authorized to receive Tenant's keys to the Premises for such purpose
without releasing Tenant from any of the obligations under this
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Lease, and Tenant hereby relieves Landlord of any liability for loss of or
damage to any of Tenant's effects in connection with such subletting.
Section 24.2 No Waiver. The failure of either party to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease, or any of the Rules and Regulations, shall not be
construed as a waiver or relinquishment of the future performance of such
obligations of this Lease or the Rules and Regulations, or of the right to
exercise such election but the same shall continue and remain in full force and
effect with respect to any subsequent breach, act or omission. The receipt by
Landlord of any Rent payable pursuant to this Lease or any other sums with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Fixed Rent or Additional Rent herein stipulated shall be
deemed to be other than a payment on account of the earliest stipulated Fixed
Rent or Additional Rent, or as Landlord may elect to apply such payment, nor
shall any endorsement or acceptance of any check or other payment in the face of
a statement on such check or any letter accompanying such check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such Fixed Rent
or Additional Rent or pursue any other remedy provided in this Lease. The
existence of a right of renewal or extension of this Lease, or the exercise of
such right, shall not limit Landlord's right to terminate this Lease in
accordance with the terms hereof.
ARTICLE 25
WAIVER OF TRIAL BY JURY
LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY MATTERS IN ANY WAY
ARISING OUT OF OR CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR THE ENFORCEMENT OF ANY
REMEDY UNDER ANY REQUIREMENT. If Landlord commences any summary proceeding
against Tenant, Tenant will not interpose any counterclaim of any nature or
description in any such proceeding (unless failure to impose such counterclaim
would preclude Tenant from asserting in a separate action the claim which is the
subject of such counterclaim), and will not seek to consolidate such proceeding
with any other action which may have been or will be brought in any other court
by Tenant.
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ARTICLE 26
INABILITY TO PERFORM
This Lease and the obligation of Tenant to pay Rent and to perform all of
the other covenants and agreements of Tenant hereunder shall not be affected,
impaired or excused by any Unavoidable Delays. Landlord shall use reasonable
efforts to promptly notify Tenant of any Unavoidable Delay which prevents
Landlord from fulfilling any of its obligations under this Lease.
ARTICLE 27
NOTICES
Except as otherwise expressly provided in this Lease, consents, notices,
demands, requests, approval or other communications given under this Lease shall
be in writing and shall be deemed sufficiently given or rendered if delivered by
hand (provided a signed receipt is obtained) or if sent by registered or
certified mail (return receipt requested) or by a nationally recognized
overnight delivery service making receipted deliveries, addressed as follows:
if to Tenant, (a) at Tenant's address set forth on the first page of
this Lease, Attn: Craig Flechsig if given prior to Tenant's taking
possession of the Premises for the conduct of business, or (b) at the
Premises, Attn: Craig Flechsig if mailed subsequent to Tenant's taking
possession of the Premises for the conduct of its business with copies of
all default notices to: Wilson, Sosini, Goodrich & Rosati, 650 Page Mill
Road, Palo Alto, California 94304, Attn.: Norman Cruz, Esq., or
if to Landlord, at Landlord's address set forth on the first page of
this Lease, Attn: Chief Financial Officer, and with copies to (a) Tishman
Speyer Properties L.P., 520 Madison Avenue, New York, New York 10022 Attn:
Property Manager - 666 Third Avenue, (b) Tishman Speyer Properties L.P.,
520 Madison Avenue, New York, New York 10022, Attn: General Counsel, and
(c) any Mortgagee or Lessor which shall have requested copies of notices,
by notice given to Tenant in accordance with the provisions of this Article
27 at the address designated by such Mortgagee or Lessor;
or to such other address(es) as either Landlord or Tenant or any Mortgagee or
Lessor may designate as its new address(es) for such purpose by notice given to
the other in accordance with the provisions of this Article 27. Any such
approval, consent, notice, demand, request or other communication shall be
deemed to have been given on the date of receipted delivery
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or refusal to accept delivery as provided in this Article 27 or the date
delivery is first attempted but cannot be made due to a change of address of
which no notice was given.
ARTICLE 28
RULES AND REGULATIONS
Tenant and all Tenant Parties shall observe and comply with the Rules and
Regulations, as supplemented or amended from time to time, provided, that in
case of any conflict or inconsistency between the provisions of this Lease and
any of the Rules and Regulations as originally promulgated or as supplemented or
amended from time to time, the provisions of this Lease shall control. Landlord
reserves the right, from time to time, to adopt additional reasonable Rules and
Regulations and to reasonably amend the Rules and Regulations then in effect.
Nothing contained in this Lease shall impose upon Landlord any obligation to
enforce the Rules and Regulations or terms, covenants or conditions in any other
lease against any other Building tenant, and Landlord shall not be liable to
Tenant for violation of the Rules and Regulations by any other tenant, its
employees, agents, visitors or licensees, except that Landlord shall not enforce
any Rule or Regulation against Tenant in a discriminatory fashion.
ARTICLE 29
PARTNERSHIP TENANT
Section 29.1 Partnership Tenant. If Tenant, or a permitted assignee of this
Lease pursuant to Article 15 hereof, is a partnership, or is comprised of two or
more Persons, individually or as partners of a partnership (any such partnership
and such Persons are referred to in this Article as "Partnership Tenant"), the
following shall apply: (a) the liability of each of the general partners
(excluding Persons solely holding interests as limited partners), each of the
partners in a limited liability partnership or Persons comprising Partnership
Tenant (the "Partners") shall be joint and several; (b) each of the Partners
hereby consents in advance to, and agrees to be bound by, any written instrument
which may hereafter be executed by Partnership Tenant or any of the Partners,
which shall modify, extend or discharge this Lease, in whole or in part, or
surrender all or any part of the Premises to Landlord; (c) any bills,
statements, notices, demands, requests or other communications given or rendered
to Partnership Tenant or to any of the Partners shall be binding upon
Partnership Tenant and all of the Partners; (d) if Partnership Tenant shall
admit new Partners, all new Partners shall, by their admission to Partnership
Tenant, be deemed to have assumed joint and several liability for the
performance of all of the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed; (e) Partnership Tenant shall give
prompt notice to Landlord of the admission of any new Partners, and upon
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demand of Landlord, shall cause each such new partner to execute and deliver to
Landlord an agreement in form and substance satisfactory to Landlord, wherein
each new Partner shall assume joint and several liability for the performance of
all the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed (but neither Landlord's failure to request any such
agreement nor the failure of any new Partner to execute or deliver any such
agreement to Landlord shall vitiate the provisions of this Section 29.1(e)); and
(f) no change in the Partners of Partnership Tenant resulting from the admission
of a new Partner, or the death, retirement or withdrawal of a Partner shall
release Partnership Tenant or any Partner or former Partner from their
obligations under this Lease.
Section 29.2 Change of Partners. If Tenant is a Partnership Tenant, (a) the
admission of new Partners, the withdrawal (in the ordinary course of business),
retirement, death, incompetency or bankruptcy of any Partner, or the
reallocation of partnership interests among the Partners shall constitute an
assignment of this Lease unless Partners holding in the aggregate not less than
80% of the partnership interests in Partnership Tenant immediately prior to such
event remain as Partners holding not less than 80% of the partnership interests
in Partnership Tenant during the 12-month period immediately following such
event (i.e., the transfer, by any of the foregoing means, of more than 20% of
the partnership interests in Partnership Tenant in any consecutive 12-month
period shall constitute an assignment of this Lease subject to the provisions of
Article 15), and (b) the reorganization of Partnership Tenant into a
professional corporation or a limited liability partnership, or the
reorganization of Tenant from a professional corporation or a limited liability
partnership into a partnership, shall constitute an assignment of this Lease
unless immediately following such reorganization the Partners or shareholders,
as the case may be, of Tenant shall be the same as those existing immediately
prior to such reorganization, and shall acknowledge in writing to Landlord that
they remain fully liable, jointly and severally, under this Lease as provided in
this Article 29. If Tenant shall become a professional corporation, each
individual shareholder, shareholder-employee, new individual shareholder and new
shareholder-employee of any professional corporation which is a shareholder in
Tenant shall have the same personal liability (if any) as such individual or
shareholder-employee would have under this Lease if Tenant were a partnership
and such individual or shareholder-employee were a Partner or admitted as a new
Partner. If any individual Partner in Tenant is or becomes a
shareholder-employee of a professional corporation, such individual shall have
the same personal liability under this Lease as such individual would have if he
and not the professional corporation were a Partner of Tenant. If Tenant shall
become a limited liability partnership, (i) each Partner therein shall continue
to have the same personal liability as such Partner had under this Lease prior
to Tenant becoming a limited liability partnership, and (ii) each new partner
admitted to such limited liability partnership shall be bound by the provisions
of Section 29.1, and shall execute and deliver to Landlord the assumption
agreement required pursuant to Section 29.1(e) hereof.
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ARTICLE 30
VAULT SPACE
Notwithstanding anything contained in this Lease or indicated on any
sketch, blueprint or plan, no vaults, vault space or other space outside the
boundaries of the Real Property are included in the Premises. Landlord makes no
representation as to the location of the boundaries of the Real Property. All
vaults and vault space and all other space outside the boundaries of the Real
Property which Tenant may be permitted to use or occupy are to be used or
occupied under a revocable license. If any such license shall be revoked, or if
the amount of such space shall be diminished as required by any Governmental
Authority or by any public utility company, such revocation, diminution or
requisition shall not (i) constitute an actual or constructive eviction, in
whole or in part, (ii) entitle Tenant to any abatement or diminution of Rent,
(iii) relieve Tenant from any of its obligations under this Lease, or (iv)
impose any liability upon Landlord. Any fee, tax or charge imposed by any
Governmental Authority for any such vaults, vault space or other space occupied
by Tenant shall be paid by Tenant.
ARTICLE 31
BROKER
Section 31.1 Broker Representations. Landlord has retained Landlord's Agent
as leasing agent in connection with this Lease and Landlord shall be solely
responsible for any fee that may be payable to Landlord's Agent and the Broker
pursuant to separate agreements. Each of Landlord and Tenant represents and
warrants to the other that it has not dealt with any broker in connection with
this Lease other than Landlord's Agent and the Broker and that to the best of
its knowledge and belief, no other broker, finder or like entity procured or
negotiated this Lease or is entitled to any fee or commission in connection
herewith. The execution and delivery of this Lease by each party shall be
conclusive evidence that each party has relied upon the foregoing
representations and warranties.
Section 31.2 Indemnity. Each of Landlord and Tenant shall indemnify,
defend, protect and hold the other party harmless from and against any and all
Losses which the indemnified party may incur by reason of any claim of or
liability to any broker, finder or like agent (other than Landlord's Agent and
the Broker with respect to Tenant's indemnity to Landlord) arising out of any
dealings claimed to have occurred between the indemnifying party and the
claimant in connection with this Lease, and/or the above representation being
false. The provisions of this Article 31 shall survive the expiration or earlier
termination of the Term of this Lease.
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ARTICLE 32
INDEMNITY
Section 32.1 (a) Tenant's Indemnity. Tenant shall not do or permit to be
done any act or thing upon the Premises or the Building which may subject
Landlord to any liability or responsibility for injury, damages to persons or
property or to any liability by reason of any violation of law or of any
Requirement, and shall exercise such control over the Premises as to fully
protect the Indemnitees against any such liability. Subject to the provisions of
Section 12.2, Tenant shall indemnify, defend, protect and hold harmless each of
the Indemnitees from and against any and all Losses (as defined in subsection
(b) hereof), resulting from any claims (i) against Indemnitees arising from any
act, omission or negligence of any Tenant Party, (ii) except to the extent such
Losses arise out of the gross negligence or willful misconduct of Landlord or
its agents, employees or contractors, against the Indemnitees arising from any
accident, injury or damage whatsoever caused to any person or to the property of
any person and occurring during the Term or during the period of time, if any,
prior to the commencement or following the expiration of the Term that any
Tenant Party may have been given access to any portion of the Premises for the
purpose of performing work or otherwise, in or about the Premises, and (iii)
against the Indemnitees resulting from any breach, violation or nonperformance
of any covenant, condition or agreement of this Lease on the part of Tenant to
be fulfilled, kept, observed and performed.
(b) Indemnity Inclusions. As used in this Lease, the term
"Losses" means any and all losses, liabilities, damages, claims, judgments,
fines, suits, demands, costs, interest and expenses of any kind or nature
(including reasonable attorneys' fees and disbursements) incurred in connection
with any claim, proceeding or judgment and the defense thereof, and including
all costs of repairing any damage to the Premises or the Building or the
appurtenances of any of the foregoing to which a particular indemnity and hold
harmless agreement applies.
(c) Landlord's Indemnity. Subject to the provisions of Section
12.2, Landlord shall indemnify, defend and hold harmless Tenant from and against
all Losses incurred by Tenant arising from any accident, injury or damage
whatsoever caused to any person or the property of any person in or about the
common or public areas of the Building (specifically excluding the Premises) to
the extent attributable to the gross negligence or willful misconduct of
Landlord or its agents, employees or contractors.
Section 32.2 Defense and Settlement. If any claim, action or proceeding is
made or brought against any indemnified party, then, upon demand by the
indemnified party, the indemnifying party, at its sole cost and expense, shall
resist or defend such claim, action or proceeding in the indemnified party's
name (if necessary) by attorneys approved by the indemnified party, which
approval shall not be unreasonably withheld. Attorneys for Tenant's insurer
shall hereby be deemed approved for purposes of this Section 32.2.
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Notwithstanding the foregoing, the indemnified party may retain its own
attorneys to participate or assist in defending any claim, action or proceeding
involving potential liability of $10,000,000 or more, provided that the
indemnifying party shall control the defense and the indemnifying party shall
pay the reasonable fees and disbursements of such attorneys. Notwithstanding
anything herein contained to the contrary, the indemnifying party may direct the
indemnified party to settle any claim, suit or other proceeding provided that
(a) such settlement shall involve no obligation on the part of the indemnified
party other than the payment of money, (b) any payments to be made pursuant to
such settlement shall be paid in full exclusively by the indemnifying party at
the time such settlement is reached, (c) such settlement shall not require the
indemnified party to admit any liability, and (d) the indemnified party shall
have received an unconditional release from the other parties to such claim,
suit or other proceeding. The provisions of this Article 32 shall survive the
expiration or earlier termination of this Lease.
ARTICLE 33
ADJACENT EXCAVATION; SHORING
If an excavation shall be made, or shall be authorized to be made, upon
land adjacent to the Real Property, Tenant shall, upon notice, afford to the
person causing or authorized to cause such excavation license to enter upon the
Premises for the purpose of doing such work as such person shall deem necessary
to preserve the wall of the Building from injury or damage and to support the
same by proper foundations. In connection with such license, Tenant shall have
no right to claim any damages or indemnity against Landlord, or diminution or
abatement of Rent, provided that Tenant shall continue to have access to the
Premises.
ARTICLE 34
TAX STATUS OF BENEFICIAL OWNERS
Tenant recognizes and acknowledges that Landlord and/or certain beneficial
owners of Landlord may from time to time qualify as real estate investment
trusts pursuant to Sections 856 et seq. of the Code or as entities described in
Section 511(a)(2) of the Code, and that avoiding (a) the loss of such status,
(b) the receipt of any income derived under any provision of this Lease that
does not constitute "rents from real property" (in the case of real estate
investment trusts) or that constitutes "unrelated business taxable income" (in
the case of entities described in Section 511(a)(2) of the Code), and (c) the
imposition of penalty or similar taxes (each an "Adverse Event") is of material
concern to Landlord and such beneficial owners and Tenant's agreement herein
contained regarding the avoidance of an Adverse Event as a material inducement
to Landlord entering into this Lease. In the event
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that this Lease or any document contemplated hereby could, in the opinion of
counsel to Landlord, result in or cause an Adverse Event, Tenant agrees to
reasonably cooperate with Landlord in amending or modifying this Lease or such
documents and shall at the request of Landlord, and at Landlord's reasonable
expense, execute and deliver such documents reasonably required to effect such
amendment or modification. Any amendment or modification pursuant to this
Article 34 shall be structured so that the economic results to Landlord and
Tenant shall be substantially similar to those set forth in this Lease without
regard to such amendment or modification and shall not increase Tenant's
monetary obligations hereunder at all or, other than to a de minimis extent,
increase Tenant's other obligations hereunder or adversely affect the rights of
Tenant hereunder. Without limiting any of Landlord's other rights under this
Article 34, Landlord may waive the receipt of any amount payable to Landlord
hereunder and such waiver shall constitute an amendment or modification of this
Lease with respect to such payment.
ARTICLE 35
SECURITY DEPOSIT
Section 35.1 Security Deposit. Tenant shall deposit the Security Deposit
with Landlord upon the execution of this Lease in cash as security for the
faithful performance and observance by Tenant of the terms, covenants and
conditions of this Lease, including the surrender of possession of the Premises
to Landlord as herein provided.
Section 35.2 Letter of Credit. In lieu of a cash deposit, Tenant may
deliver the Security Deposit to Landlord in the form of a clean, irrevocable,
non-documentary and unconditional letter of credit in the amount of the Security
Deposit (the "Letter of Credit") issued by and drawable upon any commercial
bank, trust company, national banking association or savings and loan
association with offices for banking purposes in the City of New York (the
"Issuing Bank"), which has outstanding unsecured, uninsured and unguaranteed
indebtedness, or shall have issued a letter of credit or other credit facility
that constitutes the primary security for any outstanding indebtedness (which is
otherwise uninsured and unguaranteed), that is then rated, without regard to
qualification of such rating by symbols such as "+" or "-" or numerical
notation, "Aa" or better by Moody's Investors Service and "AA" or better by
Standard & Poor's Rating Service, and has combined capital, surplus and
undivided profits of not less than $500,000,000. The Letter of Credit shall (a)
name Landlord as beneficiary, (b) be in the amount of the Security Deposit, (c)
have a term of not less than one year, (d) permit multiple drawings, (e) be
fully transferable by Landlord without the payment of any fees or charges by
Landlord, and (f) otherwise be in form and content reasonably satisfactory to
Landlord. If upon any transfer of the Letter of Credit, any fees or charges
shall be so imposed, then such fees or charges shall be payable solely by Tenant
and the Letter of Credit shall so specify. The Letter of Credit shall provide
that it shall be deemed automatically renewed, without amendment, for
consecutive periods of one year
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each thereafter during the Term through the date that is at least 60 days after
the Expiration Date, unless the Issuing Bank sends a notice (the "Non-Renewal
Notice") to Landlord by certified mail, return receipt requested, not less than
45 days next preceding the then expiration date of the Letter of Credit stating
that the Issuing Bank has elected not to renew the Letter of Credit. Landlord
shall have the right, upon receipt of the Non-Renewal Notice, to draw the full
amount of the Letter of Credit, by sight draft on the Issuing Bank, and shall
thereafter hold or apply the cash proceeds of the Letter of Credit pursuant to
the terms of this Article. The Letter of Credit shall state that drafts drawn
under and in compliance with the terms of the Letter of Credit will be duly
honored upon presentation to the Issuing Bank at an office in Manhattan. The
Letter of Credit shall be subject in all respects to the Uniform Customs and
Practice for Documentary Credits (1993 revision), International Chamber of
Commerce Publication No. 500.
Section 35.3 Application of Security. Upon the occurrence of an Event of
Default, Landlord may apply or retain the whole or any part of the cash Security
Deposit or may notify the Issuing Bank and thereupon receive all or a portion of
the Security Deposit represented by the Letter of Credit and use, apply, or
retain the whole or any part of such proceeds, as the case may be, to the extent
required for the payment of any Fixed Rent or any other sum as to which Tenant
is in default including (a) any sum which Landlord may expend or may be required
to expend by reason of Tenant's default, and/or (b) any damages or Deficiency to
which Landlord is entitled pursuant to this Lease or applicable Requirements,
whether such damages or Deficiency accrues before or after summary proceedings
or other reentry by Landlord. If Landlord applies or retains any part of the
Security Deposit, Tenant, upon demand, shall deposit with Landlord the amount so
applied or retained so that Landlord shall have the full Security Deposit on
hand at all times during the Term. If Tenant shall fully and faithfully comply
with all of the terms, covenants and conditions of this Lease, the Security
Deposit (or so much thereof as remains) shall be returned to Tenant after the
Expiration Date and after delivery of possession of the Premises to Landlord in
the manner required by this Lease. Tenant expressly agrees that Tenant shall
have no right to apply any portion of the Security Deposit against any of
Tenant's obligations to pay Rent hereunder.
Section 35.4 Transfer. Upon a sale of the Real Property or the Building or
a leasing of the Building, or any financing of Landlord's interest therein,
Landlord shall have the right to transfer the cash Security Deposit or the
Letter of Credit, as applicable, to the vendee, lessee or lender. With respect
to the Letter of Credit, within five days after notice of such sale, leasing or
financing, Tenant, at its sole cost, shall arrange for the transfer of the
Letter of Credit to the new landlord or the lender, as designated by Landlord in
the foregoing notice or have the Letter of Credit reissued in the name of the
new landlord or the lender. Tenant shall look solely to the new landlord or
lender for the return of such cash Security Deposit or Letter of Credit and the
provisions hereof shall apply to every transfer or assignment made of the
Security Deposit to a new landlord. Tenant shall not assign or encumber or
attempt to assign or encumber the cash Security Deposit or Letter of Credit and
neither Landlord nor its
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successors or assigns shall be bound by any such action or attempted assignment,
or encumbrance.
ARTICLE 36
MISCELLANEOUS
Section 36.1 Delivery. This Lease shall not be binding upon Landlord or
Tenant unless and until Landlord and Tenant shall have executed and delivered a
fully executed copy of this Lease to the other party.
Section 36.2 Transfer of Real Property. Landlord's obligations under this
Lease shall not be binding upon the Landlord named herein after the sale,
conveyance, assignment or transfer or lease of Landlord's interest (collectively
a "Transfer") by Landlord (or upon any subsequent landlord after the Transfer by
such subsequent landlord) of its interest in the Building or the Real Property,
as the case may be, and in the event of any such Transfer, Landlord (and any
such subsequent landlord) shall be entirely freed and relieved of all covenants
and obligations of Landlord hereunder, and the transferee of Landlord's interest
(or that of such subsequent landlord) in the Building or the Real Property, as
the case may be, shall, except as otherwise provided below, be deemed to have
assumed all obligations under this Lease. Notwithstanding the foregoing, such
transferee may elect not to, or fail to, assume Landlord's obligations under
this Lease arising prior to the transfer, in which event the transferring
Landlord shall remain liable for covenants, and obligations of Landlord
hereunder arising prior to such sale, conveyance, assignment or transfer while
such transferring Landlord owned the Building or the Real Property, as the case
may be, but only to the extent of the net undistributed proceeds from such sale,
conveyance, assignment or transfer.
Section 36.3 Limitation on Liability. The liability of Landlord for
Landlord's obligations under this Lease shall be limited to Landlord's interest
from time to time in the Real Property (and the net unapplied and undistributed
sales, condemnation and insurance proceeds thereof) and Tenant shall not look to
any other property or assets of Landlord or the property or assets of any
Indemnitees in seeking either to enforce Landlord's obligations under this Lease
or to satisfy a judgment for Landlord's failure to perform such obligations; and
none of the Indemnitees shall be personally liable for the performance of
Landlord's obligations under this Lease.
Section 36.4 Rent. Notwithstanding anything to the contrary contained in
this Lease, all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated Fixed Rent, Tenant's Tax Payment,
Tenant's Operating Payment, Additional Rent or Rent, shall constitute rent for
the purposes of Section 502(b)(6) of the United States Bankruptcy Code and other
Requirements.
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Section 36.5 Entire Agreement. This Lease (including any Schedules and
Exhibits referred to herein and all supplementary agreements provided for
herein) contains the entire agreement between the parties and all prior
negotiations and agreements are merged into this Lease. All of the Schedules and
Exhibits attached hereto are incorporated in and made a part of this Lease,
provided that in the event of any inconsistency between the terms and provisions
of this Lease and the terms and provisions of the Schedules and Exhibits hereto,
the terms and provisions of this Lease shall control. All Article and Section
references set forth herein shall, unless the context otherwise requires, be
deemed references to the Articles and Sections of this Lease.
Section 36.6 Governing Law. This Lease shall be governed in all respects by
the laws of the State of New York.
Section 36.7 Unenforceability. If any provision of this Lease, or its
application to any Person or circumstance, shall ever be held to be invalid or
unenforceable, then in each such event the remainder of this Lease or the
application of such provision to any other Person or any other circumstance
(other than those as to which it shall be invalid or unenforceable) shall not be
thereby affected, and each provision hereof shall remain valid and enforceable
to the fullest extent permitted by law.
Section 36.8 Consent to Jurisdiction. (a) Except as expressly provided to
the contrary in this Lease, Tenant agrees that all disputes arising, directly or
indirectly, out of or relating to this Lease, and all actions to enforce this
Lease, shall be dealt with and adjudicated in the state courts of the State of
New York or the federal courts for the Southern District of New York; and for
that purpose Tenant expressly and irrevocably submits itself to the jurisdiction
of such courts. Tenant agrees that so far as is permitted under applicable law,
this consent to personal jurisdiction shall be self-operative and no further
instrument or action, other than service of process in one of the manners
specified in this Lease, or as otherwise permitted by law, shall be necessary in
order to confer jurisdiction upon it in any such court. Tenant further agrees
that judgment against it in any such action or proceeding shall be conclusive
and, to the extent permitted by applicable law, may be enforced in any other
jurisdiction within or outside the United States of America by suit on the
judgment, a certified or exemplified copy of which shall be conclusive evidence
of the fact and of the amount of its indebtedness.
(b) To the extent that Tenant has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property,
Tenant irrevocably waives such immunity in respect of its obligations under this
Lease.
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Section 36.9 Landlord's Agent. Unless Landlord shall render written notice
to Tenant to the contrary, Tishman Speyer Properties, L.P. is authorized to act
as Landlord's agent in connection with the performance of this Lease, and Tenant
shall direct all correspondence and requests to, and shall be entitled to rely
upon correspondence received from, Tishman Speyer Properties, L.P., as agent for
the Landlord in accordance with Article 27. Tenant acknowledges that Tishman
Speyer Properties, L.P. is acting solely as agent for Landlord in connection
with the foregoing; and neither Tishman Speyer Properties, L.P. nor any of its
direct or indirect partners, officers, shareholders, directors, employees,
principals, agents or representatives shall have any liability to Tenant in
connection with the performance of this Lease, and Tenant waives any and all
claims against any and all of such parties arising out of, or in any way
connected with, this Lease, the Building or the Real Property.
Section 36.10 Estoppels. (a) Within 10 days following request from
Landlord, any Mortgagee or any Lessor, Tenant shall deliver to Landlord a
written statement executed and acknowledged by Tenant, in form satisfactory to
Landlord, (i) stating the Construction Period Start Date, the Rent Commencement
Date and the Expiration Date, and that this Lease is then in full force and
effect and has not been modified (or if modified, setting forth all
modifications), (ii) setting forth the date to which the Fixed Rent and any
Additional Rent have been paid, together with the amount of monthly Fixed Rent,
Tenant's Tax Payment and Tenant's Operating Payment then payable, (iii) stating
whether or not, to the best of Tenant's knowledge, Landlord is in default under
this Lease, and, if Tenant asserts that Landlord is in default, setting forth
the specific nature of any such defaults, (iv) stating whether Landlord has
failed to complete any work required to be performed by Landlord under this
Lease, (v) stating whether there are any sums payable to Tenant by Landlord
under this Lease, (vi) stating the amount of the Security Deposit, if any, under
this Lease, (vii) stating whether there are any subleases or assignments
affecting the Premises, (viii) stating the address of Tenant to which all
notices and communications under the Lease shall be sent, and (ix) responding to
any other matters reasonably requested by Landlord, such Mortgagee or such
Lessor. Tenant acknowledges that any statement delivered pursuant to this
Section 36.10(a) may be relied upon by any purchaser or owner of the Real
Property or the Building, or all or any portion of Landlord's interest in the
Real Property or the Building or any Superior Lease, or by any Mortgagee, or
assignee thereof or by any Lessor, or assignee thereof.
(b) From time to time, within 10 days following a request by
Tenant, Landlord shall deliver to Tenant a written statement executed and
acknowledged by Landlord, in form reasonably acceptable to Tenant and Landlord,
(i) stating the Construction Period Start Date, the Rent Commencement Date and
the Expiration Date, and that this Lease is then in full force and effect and
has not been modified (or, if modified, setting forth all modifications), (ii)
setting forth the date to which the Fixed Rent and all Additional Rent have been
paid, together with the amount of monthly Fixed Rent, Tenant's Tax Payment and
Tenant's Operating Payment then payable, and (iii) stating whether or not, to
Landlord's knowledge, Tenant is in default under this Lease, and, if Landlord
asserts that Tenant is in
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default, setting forth the specific nature of all such defaults. Landlord
acknowledges that any statement delivered pursuant to this Section 36.10(b) may
be relied upon by any prospective or actual sublessee of the Premises or
assignee of this Lease, or permitted transferee of or successor to Tenant.
Section 36.11 Certain Rules of Interpretation. For purposes of this Lease,
whenever the words "include", "includes", or "including" are used, they shall be
deemed to be followed by the words "without limitation" and, whenever the
circumstances or the context requires, the singular shall be construed as the
plural, the masculine shall be construed as the feminine and/or the neuter and
vice versa. This Lease shall be interpreted and enforced without the aid of any
canon, custom or rule of law requiring or suggesting construction against the
party drafting or causing the drafting of the provision in question.
Section 36.12 Captions. The captions in this Lease are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope of this Lease or the intent of any provision hereof.
Section 36.13 Parties Bound. The terms, covenants, conditions and
agreements contained in this Lease shall bind and inure to the benefit of
Landlord and Tenant and, except as otherwise provided in this Lease, to their
respective legal representatives, successors, and assigns.
Section 36.14 Directory. The lobby at present contains a directory panel
wherein Tenant and others permitted to occupy the Premises shall be listed with
a capacity for up to 40 listings. If Landlord shall install a computerized
directory in the lobby wherein the Building's tenants shall be listed, Tenant
shall be entitled to the greater of (a) 40 listings and (b) such proportion of
such listings as Agreed Area of Premises is to the rentable square foot area of
the Building. From time to time, but not more frequently than once every 3
months, Landlord shall change the directory panel or, if applicable, reprogram
the computerized directory to reflect such changes in the listings therein as
Tenant shall request. Tenant shall pay Landlord's customary charge, if any, from
time to time in effect for making any such change in listings.
Section 36.15 Counterparts. This Lease may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
Section 36.16 Memorandum of Lease. Neither this Lease nor a memorandum in
respect of this Lease shall be recorded.
Section 36.17 Survival. All obligations and liabilities of Landlord or
Tenant to the other which accrued before the expiration or other termination of
this Lease, and all such obligations and liabilities which by their nature or
under the circumstances can only be, or by
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the provisions of this Lease may be, performed after such expiration or other
termination, shall survive the expiration or other termination of this Lease.
Without limiting the generality of the foregoing, the rights and obligations of
the parties with respect to any indemnity under this Lease, and with respect to
Fixed Rent, Tenant's Tax Payment, Tenant's Operating Payment and any other
amounts payable under this Lease, shall survive the expiration or other
termination of this Lease.
Section 36.18 Confidentiality. Landlord and Tenant agree not to disclose
(a) that they have entered into this Lease, except pursuant to a mutually
acceptable press release, and (b) the terms hereof for one (1) year after the
date hereof, except that Landlord and Tenant shall have the right to disclose
any of the above information and terms (x) to partners, affiliates,
shareholders, proposed subtenants and assignees, accountants, attorneys, agents
and representatives and lenders who will be directed to treat such information
confidentially, (y) as required by law and (z) in connection with any legal
action hereunder.
ARTICLE 37
RENEWAL OPTION
Section 37.1 Exercise of Option. Tenant shall have the right, to renew the
Term for all of the Premises for a single renewal term (the "Renewal Term") of 5
years by written notice (the "Renewal Notice") delivered to Landlord not less
than 18 months prior to the Expiration Date, time being of the essence;
provided, however, that (a) no Event of Default shall have occurred and be
continuing either on the date the Renewal Notice is given or on the Renewal Term
Commencement Date (as hereinafter defined), and (b) Tenant shall be in occupancy
of at least 80% of the rentable area of the Premises. Upon the giving of the
Renewal Notice, this Lease shall be deemed renewed for the Renewal Term with the
same force and effect as if the Renewal Term had originally been included in the
Term. The Renewal Term shall commence on the day after the Expiration Date (the
"Renewal Term Commencement Date") and shall terminate on the day preceding the
5th anniversary of the Renewal Term Commencement Date or such earlier date as
this Lease shall terminate pursuant to any of the terms of this Lease.
Section 37.2 Terms. All of the terms, covenants and conditions of this
Lease shall continue in full force and effect during the Renewal Term, except
that (a) the Fixed Rent for the Renewal Term shall be in an amount equal to the
greater of (i) 100% of the Fair Market Value (as hereinafter defined) and (ii)
the annual Fixed Rent, Tenant's Tax Payment and Tenant's Operating Payment then
in effect at the expiration of the initial term of this Lease, (b) Tenant shall
have no further right to renew the Term, (c) the Base Tax Year shall be the Tax
Year commencing on the July 1st prior to the Renewal Term Commencement Date, (d)
the Base Expense Years shall be the Comparison Year commencing on the January
1st prior to the Renewal Term Commencement Date and (e) the Base Operating
Expenses shall
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be the Operating Expenses for such Comparison Year. Any termination,
cancellation or surrender of the entire interest of Tenant under this Lease at
any time during the Term shall terminate any right of renewal of Tenant
hereunder.
Section 37.3 Fair Market Value. "Fair Market Value" shall mean the fair
market annual rental value of the Premises at the commencement of the Renewal
Term for a term equal to the Renewal Term, as determined by Landlord based on
comparable space in the Building, including all of Landlord's services provided
for in this Lease, and with (a) the Premises considered as vacant, and in the
"as is" condition existing on the Renewal Term Commencement Date, (b) the Base
Tax Year being the Tax Year commencing on the July 1st prior to the Renewal Term
Commencement Date, (c) the Base Expense Years being the Comparison Year
commencing on the January 1st prior to the Renewal Term Commencement Date and
(d) the Base Operating Expenses being the Operating Expenses for such Comparison
Year. The calculation of Fair Market Value shall also be adjusted to take into
account all relevant factors. Prior to the commencement of the Renewal Term,
Landlord shall deliver to Tenant Landlord's determination of Fair Market Value.
Section 37.4 Arbitration. If Tenant shall dispute Landlord's determination
of Fair Market Value , Tenant shall give notice to Landlord of such dispute
within 30 days after the delivery of Landlord's determination to Tenant, and
such dispute shall be determined by a single arbitrator appointed in accordance
with the American Arbitration Association Real Estate Valuation Arbitration
Proceeding Rules. If no notice of dispute is given by Tenant within such 30-day
period (time being of the essence), then Landlord's determination shall be
binding upon Tenant. The arbitrator shall be impartial and shall have not less
than 10 years' experience in the County of New York related to the leasing of
commercial office space in office buildings comparable to the Building, and the
fees of the arbitrator shall be shared by Landlord and Tenant. Within 15 days
following the appointment of the arbitrator, Landlord and Tenant shall attend a
hearing before the arbitrator at which each party shall submit a report setting
forth its determination of Fair Market Value, together with such information on
comparable rentals and such other evidence as such party shall deem relevant.
The arbitrator shall, within 30 days following such hearing and submission of
evidence, render his or her decision by selecting the determination of Fair
Market Value submitted by either Landlord or Tenant which, in the judgment of
the arbitrator, most nearly reflects the Fair Market Value. The arbitrator shall
have no power or authority to select any Fair Market Value other than a Fair
Market Value submitted by Landlord or Tenant or to modify any of the provisions
of this Lease, and the decision of the arbitrator shall be final and binding
upon Landlord and Tenant. Prior to the determination of the arbitrator, Tenant
shall pay Fixed Rent based on Landlord's determination of Fair Market Value
submitted to Tenant pursuant to Section 37.3, and following the arbitrator's
final determination, the amount of any overpayment or underpayment shall be
appropriately adjusted between the parties.
Section 37.5 Agreement of Terms. Landlord and Tenant, at either party's
request, shall promptly execute and exchange an appropriate agreement evidencing
the extension of
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the Term for the Renewal Term, and the terms thereof in a form reasonably
satisfactory to both parties, but no such agreement shall be necessary in order
to make the provisions hereof effective.
ARTICLE 38
RIGHT OF FIRST OFFER
Section 38.1 Exercise of Right. If at any time prior to the last 24 months
of the Term (as the same may be extended) all or any portion of the rentable
area of the 31st floor of the Building that is not subject to this Lease (each
such space being hereinafter referred to as an "Expansion Space") is, or
Landlord reasonably believes the same is to become, Available (as hereinafter
defined) and Landlord proposes to lease such Expansion Space, Landlord shall
deliver notice thereof to Tenant (an "Expansion Notice") setting forth a
description of the Expansion Space in question, the rentable square footage of
such Expansion Space, Landlord's determination of the Expansion Space Fair
Market Value (as hereinafter defined) for such Expansion Space and the date
Landlord reasonably anticipates that such Expansion Space will become Available
(the "Anticipated Expansion Space Commencement Date"). Provided that all of the
conditions precedent set forth in this Article 38 are fully satisfied by Tenant,
Tenant shall have the option (an "Expansion Option"), exercisable by Tenant
delivering irrevocable notice to Landlord (an "Acceptance Notice") within 7 days
of the giving by Landlord of the applicable Expansion Notice, time being of the
essence, to lease the Expansion Space described in the related Expansion Notice
upon the terms and conditions set forth in this Article 38. An Expansion Option
may be exercised only with respect to all of the Expansion Space that is the
subject of an applicable Expansion Notice. If Tenant fails to timely give an
Acceptance Notice with respect to any Expansion Space, Tenant shall be deemed to
have rejected Landlord's offer to lease the applicable Expansion Space and
Landlord shall have no further obligation and Tenant shall have no further
rights with respect to that particular Expansion Space during the Term.
Section 38.2 Definitions. (a) "Available" shall mean that at the time in
question (i) no Person leases or occupies the Expansion Space that is the
subject of an Expansion Notice, whether pursuant to a lease or other agreement,
and (ii) no Person holds any option or right to lease or occupy such Expansion
Space, or to renew its lease or right of occupancy thereof. So long as a tenant
or other occupant leases or occupies a portion of the applicable Expansion
Space, Landlord shall be free to extend any such tenancy or occupancy, whether
or not pursuant to a lease or other agreement, and such space shall not be
deemed to be Available. In no event shall Landlord be liable to Tenant for any
failure by any then existing tenant or occupant to vacate any of the Expansion
Space. From and after the date hereof, Landlord shall not grant any rights to
any tenant or other occupant of the Building with respect to any Expansion Space
unless such rights are subordinate to the rights granted Tenant hereunder,
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except to new tenants or occupants of a portion of the Expansion Space after
Landlord shall have duly offered such portion of the Expansion Space to Tenant
pursuant to this Article 38.
(b) "Expansion Space Fair Market Value," with respect to each
Expansion Space, shall mean the fair market annual rental value of such
Expansion Space at the commencement of the leasing of such Expansion Space for a
term commencing on the applicable Expansion Space Commencement Date (as
hereinafter defined) and ending on the Expiration Date, as determined by
Landlord based on comparable space in the Building, including all of Landlord's
services provided for in the Lease and with (i) such Expansion Space considered
as vacant and in the "as is" condition which same shall be in on the applicable
Expansion Space Commencement Date, (ii) the Base Tax Year being the Tax Year
commencing on the July 1st immediately preceding the applicable Expansion Space
Commencement Date, (iii) the Base Expense Years being the Comparison Year
commencing on the January 1st immediately preceding the applicable Expansion
Space Commencement Date, and (iv) the Base Operating Expenses bring the
Operating Expenses for such Comparison Year. The calculation of Expansion Space
Fair Market Value shall also be adjusted to take into account any other relevant
factors.
Section 38.3 Conditions to Exercise. Tenant shall have no right to exercise
an Expansion Option unless all of the following conditions have been satisfied
on the date the applicable Acceptance Notice is delivered to Landlord and on the
Expansion Space Commencement Date:
(a) No Event of Default shall have occurred and be continuing;
(b) Tenant shall be in occupancy of 100% of the rentable area of the
Premises; and
(c) There shall not have occurred any material adverse change in the
financial condition of Tenant from the condition described on the financial
statements submitted by Tenant to Landlord in connection with this Lease.
Section 38.4 Incorporation of Expansion Space. Effective as of the date on
which Landlord delivers vacant possession of an Expansion Space to Tenant (with
respect to each such Expansion Space, the "Expansion Space Commencement Date"):
(a) Fixed Rent for such Expansion Space shall be the Expansion Space
Fair Market Value as determined in accordance with this Article 38.
(b) Tenant shall pay Tenant's Tax Payment and Tenant's Operating
Payment with respect to such Expansion Space in accordance with the
provisions of Article 8, except that (i) the Base Tax Year shall be the Tax
Year commencing on the July 1st immediately preceding the applicable
Expansion Space Commencement Date, (ii) the Base
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Expense Years shall be the Comparison Year commencing on the January 1st
immediately preceding the applicable Expansion Space Commencement Date, and
(iii) the Base Operating Expenses shall be the Operating Expenses for such
Comparison Year.
(c) The rentable square footage of the Expansion Space shall be as set
forth in the applicable Expansion Notice (which the parties agree shall be
the rentable square footage of such Expansion Space for all purposes of
this Lease), the Agreed Area of Premises shall be increased by such
rentable square footage and Tenant's Proportionate Share shall be
appropriately adjusted.
(d) The applicable Expansion Space shall be delivered in its "as is"
condition, and Landlord shall not be obligated to perform any work with
respect thereto or make any contribution to Tenant to prepare such
Expansion Space for Tenant's occupancy;
(e) The Security Deposit shall be increased by an amount equal to (i)
the then existing amount of the Security Deposit then required pursuant to
Article 35, divided by the number of rentable square feet then contained in
the Premises, multiplied by (ii) the number of rentable square feet
contained in such Expansion Space; and
(f) The applicable Expansion Space shall be added to and be deemed to
be a part of the Premises for all purposes of this Lease (except as
otherwise provided in this Section 38).
Section 38.5 Possession. In no event shall Landlord be obligated to incur
any fee, cost, expense or obligation, nor to prosecute any legal action or
proceeding, in connection with the delivery of any Expansion Space to Tenant nor
shall Tenant's obligations under this Lease with respect to the Premises or such
Expansion Space be affected thereby. Landlord shall not be subject to any
liability and this Lease shall not be impaired if Landlord shall be unable to
deliver possession of any Expansion Space to Tenant on any particular date.
Tenant hereby waives any right to rescind this Lease or any Acceptance Notice
under the provisions of Section 223-a of the Real Property Law of the State of
New York, and agrees that the provisions of this Section 38.5 are intended to
constitute "an express provision to the contrary" within the meaning of said
Section 223-a. Landlord agrees that it shall not waive any rights it may have
against any Person holding over in the Expansion Space, without any obligation
to enforce any such rights.
Section 38.6 Arbitration. If Tenant shall dispute Landlord's determination
of the Expansion Space Fair Market Value for any Expansion Space, Tenant shall
give notice to Landlord of such dispute within 20 days following the delivery of
Landlord's determination to Tenant, and such dispute shall be determined by a
single arbitrator appointed in accordance with the American Arbitration
Association Real Estate Valuation Arbitration Proceeding Rules. If no notice of
any dispute is given within such 20 day period (time being of the essence), then
Landlord's determination shall be binding upon Tenant. The arbitrator
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shall be impartial and shall have not less than 10 years' experience in the
County of New York in a calling related to the leasing of commercial office
space in office buildings comparable to the Building, and the fees of the
arbitrator shall be shared by Landlord and Tenant. Within 15 days following the
appointment of the arbitrator, Landlord and Tenant shall attend a hearing before
the arbitrator at which each party shall submit a report setting forth its
determination of the Expansion Space Fair Market Value of the applicable
Expansion Space, together with such information on comparable rentals and such
other evidence as such party shall deem relevant. The arbitrator shall, within
30 days following such hearing and submission of evidence, render his or her
decision by selecting the determination of the Expansion Space Fair Market Value
submitted by either Landlord or Tenant which, in the judgment of the arbitrator,
most nearly reflects the Expansion Space Fair Market Value of the applicable
Expansion Space. The arbitrator shall have no power or authority to select any
Expansion Space Fair Market Value other than an Expansion Space Fair Market
Value submitted by Landlord or Tenant or to modify any of the terms and
provisions of this Lease, and the decision of the arbitrator shall be final and
binding upon Landlord and Tenant. Prior to the determination of the arbitrator,
Tenant shall pay Fixed Rent based on Landlord's determination of the Expansion
Space Fair Market Value for the applicable Expansion Space, and following the
arbitrator's final determination, the amount of any overpayment or underpayment
shall be adjusted between the parties.
Section 38.7 Agreement of Terms. Landlord and Tenant, at either party's
request, shall promptly execute and exchange an appropriate agreement evidencing
the leasing of each Expansion Space and the terms thereof in a form reasonably
satisfactory to both parties, but no such agreement shall be necessary in order
to make the provisions hereof effective.
ARTICLE 39
ARBITRATION
In any arbitration which, pursuant to the express provisions of this Lease,
is governed by this Article 39, either party may submit the dispute for
resolution by arbitration in the City of New York in accordance with the
Commercial Arbitration Rules (Expedited Procedures) of the American Arbitration
Association ("AAA"), except that the terms of this Article 39 shall supersede
any conflicting or otherwise inconsistent rules. Provided the rules and
regulations of the AAA so permit, (i) the AAA shall, within 2 Business Days
after such submission or application, select a single arbitrator having at least
ten (10) years' experience in leasing and management of commercial properties
similar to the Building, (ii) the arbitration shall commence 2 Business Days
thereafter and shall be limited to a total of seven hours on the date of
commencement until completion, with each party having no more than a total of
two hours to present its case and to cross-examine or interrogate persons
supplying information or documentation on behalf of the other party, and (iii)
the arbitrator shall make a determination within 3 Business Days after the
conclusion of the presentation of Landlord's
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and Tenant's cases, which determination shall be limited to a decision upon (A)
whether Landlord acted reasonably in withholding its consent or approval, or (B)
the specific dispute presented to the arbitrator, as applicable (and the
arbitrator shall not be permitted to modify any of the terms of this Lease). The
arbitrator's determination shall be final and binding upon the parties, whether
or not a judgment shall be entered in any court. All actions necessary to
implement such decision shall be undertaken as soon as possible, but in no event
later than 10 Business Days after the rendering of such decision. The
arbitrator's determination may be entered in any court having jurisdiction
thereof. All fees payable to the AAA for services rendered in connection with
the resolution of the dispute shall be paid by the unsuccessful party. The
arbitrator shall not be entitled to award monetary damages.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
405 LEXINGTON, L.L.C., Landlord
By: _/s/ Bruce D. Saber_________
Name: Bruce D. Saber
Title: Vice President
ADVENT SOFTWARE, INC.,
Tenant
By: _/s/ Irv Lichtenwald________
Name: Irv Lichtenwald
Title: CFO
Tenant's Federal Identification Number:
94-2901952
--------------------------------
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ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) SS.:
COUNTY OF SAN FRANCISCO )
On this 20th day of July, 1999 before me personally came Irv H.
Lichtenwald, who, being duly sworn by me, did depose and say that he/she is a
Chief Financial Officer of Advent Software Inc., the corporation described in
and which executed the foregoing instrument, and that he/she signed his/her name
thereto by order of the board of directors of said corporation, as the act and
deed of said corporation for the uses and purposes intended therein.
/s/ Nancy Ann Corsaut
---------------------
Notary Public
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EXHIBIT A
FLOOR PLANS
The floor plans which follow are intended solely to identify the general
location of the Premises, and should not be used for any other purpose. All
areas, dimensions and locations are approximate, and any physical conditions
indicated may not exist as shown.
See Attached
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EXHIBIT B
DEFINITIONS
Affiliate: With respect to any Person, any other Person that, directly
or indirectly (through one or more intermediaries), Controls, is Controlled by,
or is under common Control with, such first Person.
Base Rate: The annual rate of interest publicly announced from time to
time by Citibank, N.A., or its successor, in New York, New York as its "base
rate" (or such other term as may be used by Citibank, N.A., from time to time,
for the rate presently referred to as its "base rate").
Building Systems: The mechanical, electrical, plumbing, sanitary,
sprinkler, heating, ventilation and air conditioning, security, life-safety,
elevator and other service systems or facilities of the Building up to (but not
including) the point of localized distribution to the Premises (excluding,
however, supplemental HVAC systems of tenants (including Tenant), sprinklers and
the horizontal distribution systems within and servicing the Premises and by
which mechanical, electrical, plumbing, sanitary, heating, ventilating and air
conditioning, security, life-safety and other service systems are distributed
from the base Building risers, feeders, panelboards, etc. for provision of such
services to the Premises).
Business Days: All days, excluding Saturdays, Sundays and all days
observed by either the State of New York, the Federal Government or the labor
unions servicing the Building as holidays.
Code:The Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
Control: (i) (a) The ownership, directly or indirectly, of more than
50% of the voting stock of a corporation, or (b) in the case of any Person which
is not a corporation, the ownership, directly or indirectly, of more than 50% of
the beneficial ownership interest in such Person, or (ii) in the case of any
such Person, the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person.
Cost Per Kilowatt Hour: (a) The total cost for electricity incurred by
Landlord to service the Building during a particular billing period (including
energy charges, demand charges, surcharges, time-of-day charges, fuel adjustment
charges, rate adjustment charges, taxes, rebates and any other factors used by
the public utility company in computing its charges to Landlord) during such
period, divided by (b) the total kilowatt hours purchased by Landlord to provide
electricity to the Building during such period.
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Deficiency: The difference between (a) the Fixed Rent and Additional
Rent for the period which otherwise would have constituted the unexpired portion
of the Term (assuming the Additional Rent for each year thereof to be the same
as was payable for the year immediately preceding such termination or re-entry),
and (b) the net amount, if any, of rents collected under any reletting effected
pursuant to the provisions of this Lease for any part of such period (after
first deducting from such rents all expenses incurred by Landlord in connection
with the termination of this Lease, Landlord's re-entry upon the Premises and
such reletting, including repossession costs, brokerage commissions, attorneys'
fees and disbursements, and alteration costs).
Excluded Expenses: (a) Taxes; (b) franchise or income taxes imposed
upon Landlord; (c) mortgage amortization and interest and financing and
refinancing costs and costs incurred in connection with the transfer of the Real
Property; (d) leasing commissions; (e) the cost of tenant installations and
decorations incurred in connection with preparing space for any Building tenant,
including workletters and concessions; (f) wages, salaries and benefits paid to
any persons above the level of the immediate supervisor of the building manager
and excluding the wages, salaries and benefits of such supervisor to the extent
such supervisor provides services to buildings other than the Building; (g)
legal and accounting fees relating to (A) disputes with tenants, prospective
tenants or other occupants of the Building, (B) mortgagees or prospective
mortgagees of the Building or the Real Property or any part of either, or (C)
negotiations of leases, contracts of sale or mortgages; (h) costs of services
provided to other tenants of the Building on a "rent-inclusion" basis which are
not provided to Tenant on such basis; (i) costs that are reimbursed out of
insurance, warranty or condemnation proceeds, or which are reimbursable by
Tenant or other tenants other than pursuant to an expense escalation clause; (j)
costs in the nature of penalties or fines; (k) costs for services, supplies or
repairs paid to any related entity in excess of costs that would be payable in
an "arm's length" or unrelated situation; (l) allowances, concessions or other
costs and expenses of improving any demised or demisable space in the Building
and treating Hazardous Materials in connection with preparing space in the
Building for a tenant's occupancy; (m) advertising and promotional expenses in
connection with leasing of the Building; (n) the costs of installing, operating
and maintaining a specialty improvement, including a cafeteria, lodging or
private dining facility, or an athletic, luncheon or recreational club unless
Tenant is permitted to make use of any such facility without additional cost or
on a subsidized basis consistent with other users; (o) any costs or expenses
(including fines, interest, penalties and legal fees) arising out of Landlord's
failure to timely pay Operating Expenses or Taxes; (p) costs incurred in
connection with the removal, encapsulation or other treatment of asbestos or any
other Hazardous Materials (defined as such on the date hereof) existing in the
Premises as of the date hereof; (q) ground rent, and any other amounts paid to
the Lessor under any Superior Lease, if any, except to the extent such other
amounts are otherwise includable in Operating Expenses; (r) the cost of capital
improvements other than those expressly included in Operating Expenses pursuant
to Section 8.1 of this Lease; (s) costs incurred to comply with Requirements in
effect as of the date of this Lease and with which Landlord is not then in
compliance; (t) costs incurred in
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connection with the initial performance of the Building Work and all costs in
correcting defects in the construction thereof within 12 months after the
completion thereof; (u) the cost of electrical energy and other utilities
furnished to any space leased or available for lease in the Building, which cost
is reimbursed directly by Building occupants and not pursuant to a provision
similar to Article 8 (except with respect to the Building office); (v) costs
associated with the maintenance of the entity that constitutes Landlord, as
distinguished from costs of ownership, operation, repair and maintenance of the
Building; (w) costs allocable directly and solely to any retail space in the
Building; (x) management fees in excess of 3% of the gross rentals collected for
the Building and (y) the cost of repairs or replacements by reason of fire or
other casualty except customary deductibles.
Governmental Authority (Authorities): The United States of America, the
City, County or State of New York, or any political subdivision, agency,
department, commission, board, bureau or instrumentality of any of the
foregoing, or any landmarks preservation agency (or other entity designated or
accepted for such purpose by any Governmental Authority), now existing or
hereafter created, having jurisdiction over the Real Property or any portion
thereof or the curbs, sidewalks, and areas adjacent thereto.
Hazardous Materials: Any substances, materials or wastes currently or
in the future deemed or defined in any Requirements as "hazardous substances",
"toxic substances", "contaminants", "pollutants" or words of similar import.
HVAC Systems: The Building System designed to provide heating,
ventilation and air conditioning.
Indemnitees: Landlord, Landlord's Agent, each Mortgagee and Lessor, and
each of their respective direct and indirect partners, officers, shareholders,
managers, directors, members, trustees, beneficiaries, employees, principals,
contractors, licensees, invitees, servants, agents and representatives.
Lessor: A lessor under a Superior Lease.
Mortgage(s): Any mortgage, trust indenture or other financing document
which may now or hereafter affect the Premises, the Real Property, the Building
or any Superior Lease and the leasehold interest created thereby, and all
renewals, extensions, supplements, amendments, modifications, consolidations and
replacements thereof or thereto, substitutions therefor, and advances made
thereunder.
Mortgagee(s): Any mortgagee, trustee or other holder of a Mortgage.
Person: Any individual, corporation, partnership, limited liability
company, limited liability partnership, joint venture, estate, trust,
unincorporated association, business trust, tenancy-in common or other entity,
or any Governmental Authority.
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Prohibited Use: Any use or occupancy of the Premises that in Landlord's
reasonable judgment would be likely to: (a) cause damage to the Building, the
Premises or any equipment, facilities or other systems therein; (b) impair the
appearance of the Premises or the Building; (c) interfere with the efficient and
economical maintenance, operation and repair of the Premises or the Building or
the equipment, facilities or systems thereof; (d) adversely affect any service
provided to, and/or the use and occupancy by, any Building tenant or occupants;
(e) violate the certificate of occupancy issued for the Premises or the Building
or (f) adversely affect the image of the Building as a first-class office
location in midtown Manhattan. Prohibited Use also includes the use of any part
of the Premises for: (i) a restaurant or bar; (ii) the preparation, consumption,
storage, manufacture or sale of food or beverages (except in connection with
vending machines and/or warming kitchens installed for the use of Tenant's
employees and invitees only), liquor, tobacco or drugs; (iii) the business of
photocopying, multilith or offset printing (except photocopying in connection
with Tenant's own business); (iv) a typing or stenography business; (v) a school
or classroom; (vi) lodging or sleeping; (vii) the operation of retail facilities
(meaning a business whose primary patronage arises from the generalized
solicitation of the general public to visit Tenant's offices in person without a
prior appointment) of a savings and loan association or retail facilities of any
financial, lending, securities brokerage or investment activity; (viii) a
payroll office; (ix) a barber, beauty or manicure shop; (x) an employment
agency, executive search firm or similar enterprise; (xi) offices of any
Governmental Authority, any foreign government, the United Nations, or any
agency or department of the foregoing; (xii) the manufacture, retail sale,
storage of merchandise or auction of merchandise, goods or property of any kind
to the general public which could reasonably be expected to create a volume of
pedestrian traffic substantially in excess of that normally encountered in the
Premises; (xiii) the rendering of medical, dental or other therapeutic or
diagnostic services; or (xiv) any illegal purposes or any activity constituting
a nuisance.
Requirements: All present and future laws, rules, orders, ordinances,
regulations, statutes, requirements, codes and executive orders, extraordinary
and ordinary, of (i) all Governmental Authorities, including the Americans With
Disabilities Act, 42 U.S.C. ss.12101 (et seq.), New York City Local Law 58 of
1987, and any law of like import, and all rules, regulations and government
orders with respect thereto, and any of the foregoing relating to Hazardous
Materials, environmental matters, public health and safety matters and landmarks
preservation, (ii) any applicable fire rating bureau or other body exercising
similar functions, affecting the Real Property or the maintenance, use or
occupation thereof, or any street, avenue or sidewalk comprising a part of or in
front thereof or any vault in or under the same and (iii) all requirements of
all insurance bodies affecting the Premises.
Rules and Regulations: The rules and regulations annexed to and made a
part of this Lease as Exhibit G, as they may be modified from time to time by
Landlord.
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Specialty Alterations: Alterations consisting of kitchens, executive
bathrooms, raised computer floors, computer installations, safe deposit boxes,
vaults, libraries or file rooms requiring reinforcement of floors, internal
staircases, conveyors, dumbwaiters, and other Alterations of a similar
character.
Substantial Completion. As to any construction performed by any party
in the Premises, including the Initial Installations, any Alterations, or
Landlord's Work, "Substantial Completion" or "Substantially Completed" means
that such work has been completed, as reasonably determined by the party's
architect performing the work, in accordance with (a) the provisions of this
Lease applicable thereto, (b) the plans and specifications for such work, and
(c) all applicable Requirements, except for minor details of construction,
decoration and mechanical adjustments, if any, the noncompletion of which does
not materially interfere with Tenant's use of the Premises or which, in
accordance with good construction practice, should be completed after the
completion of other work to be performed in the Premises.
Superior Lease(s): Any ground or underlying lease of the Real Property
or any part thereof heretofore or hereafter made by Landlord and all renewals,
extensions, supplements, amendments, modifications, consolidations, and
replacements thereof.
Tenant Delay: Any delay which results from any act or omission of any
Tenant Party, including delays due to changes in or additions to, or
interference with any work to be done by Landlord, or delays by Tenant in
submission of information approving working drawings or estimates or giving
authorizations or approvals.
Tenant Party: Any of Tenant, any Affiliate of Tenant, any subtenant or
any other occupant of the Premises, or any of their respective direct or
indirect partners, officers, shareholders, directors, members, trustees,
beneficiaries, employees, principals, contractors, licensees, invitees,
visitors, servants, agents, or representatives.
Tenant's Property: Tenant's movable fixtures and movable walls and
partitions, telephone and other equipment, computer systems, trade fixtures,
furniture, furnishings, and other items of personal property which are removable
without material damage to the Premises or Building.
Unavoidable Delays: Landlord's inability to fulfill or delay in
fulfilling any of its obligations under this Lease expressly or impliedly to be
performed by Landlord or Landlord's inability to make or delay in making any
repairs, additions, alterations, improvements or decorations or Landlord's
inability to supply or delay in supplying any equipment or fixtures, if
Landlord's inability or delay is due to or arises by reason of strikes, labor
troubles or by accident, or by any cause whatsoever beyond Landlord's reasonable
control, including Requirements, laws, governmental preemption in connection
with a national emergency, shortages, or unavailability of labor, fuel, steam,
water, electricity or
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materials, or delays caused by Tenant or other tenants, mechanical breakdown,
acts of God, enemy action, civil commotion, fire or other casualty.
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EXHIBIT C
LANDLORD'S WORK
The following work (unless otherwise specifically provided herein)
shall be of material, manufacture, design, capacity, quality, finish and color
of the standard adopted by Landlord for the Building, and, where quantities are
hereinafter specified, such quantities shall include any existing installations
to the extent useable and used in the performance of such work.
1. Demolish the existing tenant installations in the Premises and
deliver Premises broom clean.
2. Fireproof exposed structural steel in the Premises.
3. Repair, as appropriate, all base- Building air-handling units in the
Premises.
4. Repair, as appropriate, fan coils, associated controls and convector
covers and grills in the Premises.
5. Provide main sprinkler tap on each floor in the Premises in a
location reasonably designated by Landlord.
6. Provide copies of ACP-5 Certificates in respect of item 1.
7. Make an opening in floor slab for Tenant's internal staircase
between the floors of the Premises having the dimensions and in the location
shown on a plan to be submitted by Tenant to Landlord prior to August 15, 1999
and reasonably approved by Landlord.
8. Demise the common corridor on the 31st floor of the Building.
9. Provide the necessary points (as required by applicable
Requirements) of connection for Tenant's fire and life-safety system in a
location reasonably designated by Landlord.
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EXHIBIT D
BUILDING WORK
1.0 EXTERNAL FINISHES
1.1 The building's main entrance will be finished with stone paving.
1.2 EXTERIOR WALL FINISH
a. Glass and aluminum curtain wall system.
b. New store fronts will consist of ornamental metal and
glazing with columns covered with ornamental metal
covers.
2.0 INTERIOR FINISHES IN PUBLIC AREAS
2.1 MAIN LOBBY ON GROUND FLOOR
a. Walls and floor will be finished primarily in stone.
Accent materials will be decorative metal. The
ceiling will be drywall with recessed lighting. The
level of finish will be consistent with comparable
first-class office buildings.
b. Where open to lobby, new retail areas will be
provided with store fronts of decorative metal and
glazing.
3.0 INTERIOR FINISHES
3.1 GENERAL
a. Base-Building finishes will include concrete floors
with a trowel finish in areas of new construction
and exposed structure.
b. Interior columns will be exposed spray-fireproofed
steel or concrete.
c. Core Walls: At the new addition the west core wall
will be a combination of brick and taped, prime-
painted drywall. Core walls elsewhere are general
masonry.
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4.0 ELEVATORS
4.1 Elevator cabs will be re-finished consistent with lobby finishes.
5.0 EXTERIOR WALL
5.1 Windows will consist of glass and aluminum curtainwall system.
5.2 Tenant side of exterior walls
a. At existing construction: existing plaster wall
enclosure to remain at windows, to be painted by
Tenant. Existing sheet metal fan coil units will
remain with painted sheet metal trim provided between
new windows and existing interior window surrounds.
b. At new addition, where window appearance resembles
the existing wall, drywall enclosure around the
windows will be provided.
c. At new west wall portion of addition with continuous
exposed curtainwall columns at the exterior wall will
be clad in drywall. At the base of the tempered glass
windows will be a low continuous, painted sill.
d. All ceiling, drywall and HVAC work within 4 feet of
the floor-to-ceiling glass (the design control zone)
will be done consistent with a Building-standard
design designated by Landlord.
e. Mecho shades designated by Landlord will be provided
and installed by Tenant, at Tenant's expense, in all
perimeter windows and will be maintained at a full
open, full closed or half-up position.
6.0 AIR CONDITIONING SYSTEMS DESCRIPTION - ADDITIONAL SPACE
6.1 The additional space will be served by a central
variable-air-volume, low temperature, chilled-water air
handling system. Base-Building air distribution ductwork will
terminate at floor supply shaft tap-offs, with the capacity to
provide HVAC consistent with the standards provided in Exhibit
E of this Lease and will include automatic fire and smoke
dampers which will also function as floor isolation dampers to
control after hours HVAC and isolate vacant floors.
The supply and return typical floor dampers will be
interlocked with the operation of the central supply and
return fans, and will also be capable of
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being manually controlled from the Fire Command Center Smoke
Control Panel and Building Automation System.
The base-Building will provide a hot water distribution riser
system terminating with valved tap-offs at a core shaft wall
in a Building standard location on each floor.
7.0 STRUCTURAL MATTERS
7.1 Original Building design loads are as follows:
Live Load 50psf
Partitions 20psf
Ceiling 10psf
7.2 New addition design loads are as follows:
Live Load 50psf
Partitions 12psf
Ceiling 8psf
Note: The slab tolerance for the new addition is approximately + 1/4" per 10
feet (non-cumulative)
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EXHIBIT E
HVAC SPECIFICATIONS
The HVAC System serving the Premises is designed to maintain (a) 76
degrees Fahrenheit when summer outdoor conditions are 89 degrees Fahrenheit dry
bulb and 73 degrees Fahrenheit wet bulb and (b) 70 degrees Fahrenheit when the
winter outdoor condition is 11 degrees Fahrenheit. The HVAC System shall be
capable of handling (1) an electrical load of 4 watts per usable square foot,
(2) an occupancy rate of one (1) person per 150 usable square feet, and (3) a
ventilation make-up rate of 20 cfm per person.
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EXHIBIT F
CLEANING SPECIFICATIONS
GENERAL CLEANING
NIGHTLY
General Offices:
1. All hard surfaced flooring to be swept using approved dustdown
preparation.
2. Carpet sweep all carpets, moving only light furniture (desks, file
cabinets, etc. not to be moved).
3. Hand dust and wipe clean all furniture, fixtures and window sills.
4. Empty all waste receptacles and remove wastepaper.
5. Wash clean all Building water fountains and coolers.
6. Sweep all private stairways.
Lavatories:
1. Sweep and wash all floors, using proper disinfectants.
2. Wash and polish all mirrors, shelves, bright work and enameled
surfaces.
3. Wash and disinfect all basins, bowls and urinals.
4. Wash all toilet seats.
5. Hand dust and clean all partitions, tile walls, dispensers and
receptacles in lavatories and restrooms.
6. Empty paper receptacles, fill receptacles from tenant supply and
remove wastepaper.
7. Fill toilet tissue holders from tenant supply.
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8. Empty and clean sanitary disposal receptacles.
WEEKLY
1. Vacuum all carpeting and rugs.
2. Dust all door louvers and other ventilating louvers within a
person's normal reach.
3. Wipe clean all brass and other bright work.
QUARTERLY
High dust premises complete including the following:
1. Dust all pictures, frames, charts, graphs and similar wall hangings
not reached in nightly cleaning.
2. Dust all vertical surfaces, such as walls, partitions, doors,
bucks and other surfaces not reached in nightly cleaning.
3. Dust all venetian blinds or shades.
SEMI-ANNUALLY
1. Wash all windows, weather permitting.
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EXHIBIT G
RULES AND REGULATIONS
1. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades, screens or other obstructions
shall be attached to or hung in or used in connection with any exterior window
or entry door of the Premises, without the prior written consent of Landlord.
2. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed to any part of the outside of the Premises or
Building or on the inside of the Premises if the same can be seen from the
outside of the Premises without the prior written consent of Landlord. Lettering
on doors, if and when approved by Landlord, shall be inscribed, painted or
affixed for Tenant in a size, color and style acceptable to Landlord.
3. The grills, louvers, skylights, windows and doors that reflect or admit
light and/or air into the Premises, halls, passageways or other public places in
the Building shall not be covered or obstructed by Tenant, nor shall any
bottles, parcels or other article be placed on the window sills, radiators or
convectors.
4. Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability as a Building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
5. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or encumbered by Tenant or
used for any purpose other than ingress or egress to and from the Premises and
for delivery of merchandise, equipment and other personal property in prompt and
efficient manner, using elevators and passageways designated for such delivery
by Landlord.
6. Except in those areas designated by Tenant as "security areas", all
locks or bolts of any kind shall be operable by the Grand Master Key. No locks
shall be placed upon any of the doors or windows by Tenant, nor shall any
changes be made in locks or the mechanism thereof which shall make such locks
inoperable by said Grand Master Key. Tenant shall, upon the termination of its
tenancy, turn over to Landlord all keys of stores, offices and toilet rooms,
either furnished to or otherwise procured by Tenant and in the event of the loss
of any keys furnished by Landlord, Tenant shall pay to Landlord the cost
thereof.
7. Tenant shall keep the entrance door to the Premises closed at all times.
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8. All removals or the carrying in or out of any freight, furniture,
packages, boxes, crates or any other object or matter of any description must
take place during Building standard hours. Landlord reserves the right to
inspect all objects and matter to be brought into the Building and to exclude
from the Building all objects and matter which violates any of these Rules and
Regulations or the lease of which these Rules and Regulations are a part.
Landlord may require that any person leaving the public areas of the Building
with any package, object or matter submit a pass, listing each package, object
or matter being removed, but the establishment and enforcement of such
requirement shall not impose any responsibility on Landlord for the protection
of Tenant against the removal of property from the Premises.
9. There shall not be used in any space or in the public halls of the
Building, either by Tenant or by jobbers or any others in the moving or delivery
or receipt of safes, freight, furniture, packages, boxes, crates, paper, office
material or any other matter or thing, any hand trucks except those equipped
with rubber tires, side guards and such other safeguards as Landlord requires.
10. None of Tenant's employees, visitors or contractors shall be permitted
to have access to the Building's roof, mechanical, electrical or telephone rooms
without permission from Landlord.
11. Tenant shall not make or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring Buildings
or premises or those having business with them.
12. Tenant shall not lay floor tile, or other similar floor covering so
that the same shall come in direct contact with the floor of the Premises and,
if such floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor by a paste or other material,
soluble in water, the use of cement or other similar adhesive material being
expressly prohibited.
13. Neither Tenant nor any of Tenant's servants, employees, agents,
visitors or licensees shall at any time bring or keep upon the Premises any
hazardous material, inflammable, combustible or explosive fluid, chemical or
substance except such minimal quantities as are incidental to normal office
occupancy.
14. Tenant shall not use or keep, or permit to be used or kept, any
hazardous or toxic materials or any foul or noxious gas or substance in the
Premises, permit or suffer the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the Building by
reason of noise, odors, vibrations or interfere in any way with other tenants or
those having business therein.
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15. Tenant shall not cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the Premises
which would annoy other tenants or create a public or private nuisance.
16. Except as specifically provided in the Lease, Tenant shall not do any
cooking or conduct any restaurant, luncheonette or cafeteria for the sale or
service of food or beverages to its employees or to others.
17. Tenant may, at its sole cost and expense and subject to compliance with
all applicable requirements of the Lease, install and maintain vending machines
for the exclusive use by Tenant, its officers, employees and business guests,
provided that each machine, where necessary, shall have a waterproof pan
thereunder and be connected to a drain. Tenant shall not permit the delivery of
any food or beverage to the Premises, except by persons approved by Landlord,
which approval shall not be unreasonably withheld or delayed.
18. Tenant shall not employ any person or persons other than the janitor of
Landlord for the purpose of cleaning the Premises, unless otherwise agreed to by
Landlord in writing. Tenant shall not cause any unnecessary labor by reason of
Tenant's carelessness or indifference in the preservation of good order and
cleanliness.
19. Tenant shall store all its trash, garbage and recyclables within its
Premises. No material shall be disposed of which may result in a violation of
any law or ordinance governing such disposal. All garbage and refuse disposal
shall be made only through entry ways and elevators provided for such purposes
and at such times as Landlord shall designate. Tenant shall use Building's
hauler.
20. Tenant shall, at its expense, provide artificial light for
the employees of Landlord while doing janitor service or other cleaning, and in
making repairs or alterations in the Premises.
21. Tenant shall not mark, paint, drill into or in any way deface any part
of the Premises or the Building, except with the prior written consent of
Landlord in the case of the Premises, which consent shall not be unreasonably
withheld. No boring, cutting or stringing of wires shall be permitted, except
with prior written consent of Landlord, and as Landlord may direct.
22. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein.
All damages resulting from any misuse of the fixtures shall be borne by Tenant
who or whose servants, employees, agents, visitors or licensees shall have
caused the same.
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23. Tenant, before closing and leaving the Premises at any time, shall see
that all lights, water, faucets, etc. are turned off. All entrance doors in the
Premises shall be left locked by Tenant when the Premises are not in use.
24. No bicycles, in-line roller skates, vehicles or animals of any kind
(except for seeing eye dogs) shall be brought into or kept by Tenant in or about
the Premises or the Building, except that Tenant may bring bicycles to and from
the Premises by only use of the service entrance of the Building and the freight
elevator.
25. Canvassing, soliciting and peddling in the Building is prohibited and
Tenant shall cooperate to prevent the
same.
26. The Premises shall not be used for lodging or sleeping or for an
immoral or illegal purposes.
27. The Premises shall not be used for manufacturing, for the storage of
merchandise, or for the sale of merchandise, goods or property of any kind at
auction or otherwise, except as specifically permitted by the Lease.
28. Tenant shall not occupy or permit any portion of the Premises as an
office for a public stenographer or public typist or for the possession,
storage, manufacture of sale of narcotics, dope or tobacco in any form or as a
barber or manicure shop or as an employment bureau. Tenant shall not engage or
pay any employees on the Premises, except those actually working for Tenant on
the Premises, nor advertise for labor giving an address at the Premises.
29. Tenant shall not accept barbering or bootblacking services in the
Premises, from any company or persons not approved by Landlord, which approval
shall not be unreasonably withheld, and at hours and under regulations other
than as reasonably fixed by Landlord.
30. The requirements of Tenant will be attended to only upon written
application at the office of the building, except in the event of any emergency
condition. Employees of Landlord or Landlord's agents shall not perform any work
or do anything outside of the regular duties, unless under special instructions
from the office of Landlord or in response to an emergency condition.
31. Tenant shall be responsible for the delivery and pick up of all mail
from the United States Post office.
32. Landlord reserves the right to exclude from the Building between the
hours of 6 P.M. and 8 A.M. and at all hours on Saturdays, Sundays and holidays
observed by
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the Building all persons who do not present a pass to the Building signed or
approved by Landlord, which approval shall not be unreasonably withheld. Tenant
shall be responsible for all persons for whom a pass shall be issued at the
request of Tenant and shall be liable to Landlord for all acts of such persons.
33. In accordance with the alteration section of the Lease, Landlord is
entitled to review and approve architectural and engineering drawings. The
review/alteration of Tenant drawings and/or specifications by Tishman Speyer
Properties and any of its representative is not intended to verify Tenant's
engineering or design requirements and/or solutions. The review/alteration is
performed to determine compatibility with the Building Systems and lease
conditions.
34. Tenant renovations are to: be performed by those contractors and
subcontractors on the Landlord's approved contractor's list, adhere to the
Building's applicable Standard Operating Procedures, be compatible with Building
Class E System and other common systems, etc.
35. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the tenants of the Building.
36. Landlord shall not be responsible to Tenant or to any other person for
the non-observance or violation of these Rules and Regulations by any other
tenant or other person. Tenant shall be deemed to have read the Rules and
Regulations and to have agreed to abide by them as a condition to its occupancy
of the Premises.
37. These Rules and Regulations are in addition to, and shall
not be constructed to in any way modify or amend, in whole or in part, the
terms, covenants, agreements and conditions of the Lease.
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EXHIBIT H
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the
"Agreement") is made as of the 22nd day of July 1999, by and between LEHMAN
BROTHERS HOLDINGS INC. doing business as Lehman Capital, a division of Lehman
Brothers Holdings Inc., a Delaware corporation, having an address at 3 World
Financial Center, 200 Vesey Street, 12th Floor, New York, New York 10285
("Lender"), and Advent Software, Inc., a Delaware Company having an address at
301 Brannan Street, San Francisco, California 94107 ("Tenant").
R E C I T A L S:
A. Lender is the present owner and holder of a certain Mortgage and
Modification Agreement dated as of January 23, 1998 (collectively, the "Security
Instrument") given by Landlord (defined below) to Lender which encumbers the fee
estate of Landlord in certain premises described in Exhibit A attached hereto
(the "Property") and which secures the payment of certain indebtedness owed by
Landlord to Lender evidenced by a certain Amended and Restated Promissory Note
dated as of January 23, 1998, given by Landlord (the "Note");
B. Tenant is the holder of a leasehold estate in a portion of the
Property under and pursuant to the provisions of a certain lease dated as of
July 22, 1999, between 405 Lexington, L.L.C., as landlord ("Landlord"), and
Tenant, (the "Lease"); and
C. Tenant has agreed to subordinate the Lease to the Security
Instruments and to the lien thereof, and Lender has agreed to grant
non-disturbance to Tenant and its permitted subtenants and assigns under the
Lease on the terms and conditions hereinafter set forth.
A G R E E M E N T
For good and valuable consideration, Tenant and Lender agree as follows:
1. Subordination. Tenant agrees that the Lease and all of the terms,
covenants and provisions thereof and all Tenant's right, title and interest
under the Lease are and shall at all times continue to be subject and
subordinate in all respects to the Security Instruments and to the lien thereof,
including, without limitation, all renewals, increases, modifications,
spreaders, consolidations, replacements and extensions thereof and to all sums
secured thereby with the same force and effect as if the Security Instruments
had been executed, delivered and recorded prior to the execution and delivery of
the Lease.
<PAGE>
2. Non-Disturbance. Lender agrees that if any action or proceeding is
commenced by Lender for the foreclosure of or otherwise to enforce the Security
Instruments or the sale of the Property, Tenant and any of its permitted
subtenants shall not be named as a party therein unless such joinder shall be
required by law; provided however, such joinder shall not result in the
termination of the Lease or disturb the Tenant's or such subtenant's possession
or use of the premises demised thereunder, and the sale of the Property in any
such action or proceeding and the exercise by Lender of any of its other rights
under the Note or the Security Instrument, including, but not limited to,
Lender's seeking the appointment of a receiver or accepting a deed in lieu of
foreclosure or otherwise succeeding to the rights of Landlord under the Lease,
shall be made subject to all rights of Tenant and its permitted assigns under
the Lease, provided that at the time of the commencement of any such action or
proceeding or at the time of any such sale or exercise of any such other rights
(a) the term of the Lease shall have commenced, or is due to commence, pursuant
to the provisions thereof, (b) Tenant or its permitted subtenants or assigns
shall be in possession of the premises demised under the Lease (or will be
taking possession within a reasonable time after the commencement of the Lease),
(c) the Lease shall be in full force and effect, and (d) Tenant shall not be in
default under any of the terms, covenants or conditions of the Lease or of this
Agreement on Tenant's part to be observed or performed after having received
notice and the expiration of any applicable grace period. Nothing set forth in
this Agreement is intended to or shall impair, diminish or affect the rights of
Landlord to enforce any obligation of Tenant under the Lease or to take such
action as is available to Landlord thereunder or under applicable law by reason
of any default under the Lease beyond any applicable periods of notice and
grace.
3. Attornment. Lender and Tenant agree that if Lender shall succeed to the
rights of Landlord under the Lease or shall become the owner of the Property by
reason of the foreclosure of the Security Instruments or the acceptance of a
deed or assignment in lieu of foreclosure or otherwise, and the conditions set
forth in Section 2 above have been met at the time Lender becomes such successor
or owner of the Property, the Lease shall not be terminated or affected thereby
but shall continue in full force and effect as a direct lease between Lender and
Tenant upon all of the terms, covenants and conditions set forth in the Lease,
and in that event, Tenant agrees to attorn to Lender and Lender agrees to accept
such attornment; provided, however, that the provisions of the Security
Instrument shall govern with respect to the disposition of any casualty
insurance proceeds or condemnation awards and Lender shall not be (a) obligated
to complete any construction work required to be done by Landlord pursuant to
the provisions of the Lease, or to reimburse Tenant for any construction work
done by Tenant, (b) liable (i) for Landlord's failure to perform any of its
obligations under the Lease which have accrued prior to the date on which Lender
shall become the owner of the Property, or succeeded to the rights of Landlord
under the Lease, or (ii) for any act or omission of Landlord, whether prior to
or after such foreclosure or sale; (c) required to make any repairs to the
Property or to the premises demised under the Lease required as a result of
fire, or other casualty or by reason of condemnation unless Landlord shall be
obligated under the Lease to make such repairs, and Lender shall have received
or be entitled to receive sufficient casualty insurance proceeds or condemnation
awards to finance the completion of such repairs; (d) required to make any
capital improvements to the
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Property or to the premises demised under the Lease which Landlord may have
agreed to make, but had not completed, or to perform or provide any services not
related to possession or quiet enjoyment of the premises demised under the
Lease; (e) subject to any offsets, defenses, abatements or counterclaims which
shall have accrued to Tenant against Landlord prior to the date upon which
Lender shall become the owner of the Property or succeeded to the rights of
Landlord under the Lease; (f) liable for the return of rental security deposits,
if any, paid by Tenant to Landlord in accordance with the Lease, except to the
extent such sums are actually received by Lender; (g) bound by any payment of
rents, additional rents or other sums which Tenant may have paid more than one
(1) month in advance to any prior Landlord unless (i) such sums are actually
received by Lender or (ii) such prepayment shall have been expressly approved of
by Lender; (h) bound to make any payment to Tenant which was required under the
Lease, otherwise to be made prior to the time Lender succeeded to Landlord's
interest; (i) bound by any agreement amending, modifying or terminating the
lease made without Lender's prior written consent prior to the time Lender
succeeded to Landlord's interest; or (j) bound by any assignment of the Lease or
sublease of the Property, or any portion thereof, made prior to the time Lender
succeeded to Landlord's interest other than if pursuant to the provisions of the
Lease.
4. Notice to Tenant. After notice is given to Tenant and Landlord by Lender
that the Landlord is in default under the Note and the Security Instrument and
that the rentals under the Lease should be paid to Lender pursuant to the terms
of the assignment of leases and rents executed and delivered by Landlord to
Lender in connection therewith or as provided pursuant to a Lockbox Agreement
between Landlord and Lender. Tenant shall thereafter pay to Lender, or as
directed by the Lender, all rents and all other monies due or to become due to
Landlord under the Lease until further notice from Lender, and Landlord hereby
expressly authorizes Tenant to make such payments to Lender and hereby agrees
that Tenant's compliance with such notice from Lender shall not be deemed a
violation of the Lease.
5. Lender's Consent. Tenant shall not, without obtaining the prior written
consent of Lender, (a) enter into any agreement, modifying or terminating the
Lease, except as otherwise expressly contemplated by the Lease; (b) prepay any
of the rents, additional rents or other sums due under the Lease for more than
one (1) month in advance of the due dates thereof; (c) voluntarily surrender the
premises demised under the Lease or terminate the Lease without cause or shorten
the term thereof; or (d) assign the Lease or sublet the premises demised under
the Lease or any part thereof other than pursuant to the provisions of the
Lease; and any such amendment, modification, termination, prepayment, voluntary
or surrender, without Lender's prior consent, shall not be binding upon Lender.
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6. Representation and Warranties. Tenant hereby represents and warrants to
Lender that as of the date hereof (a) Tenant is the owner and holder of the
Tenant's interest under the Lease; (b) the Lease has not been modified or
amended; (c) the Lease is in full force and effect and the term thereof shall
commence in accordance with the terms thereof; (d) neither Tenant nor, to
Tenant's current actual knowledge, Landlord is in default under or in breach of
any of the terms, covenants or provisions of the Lease, and Tenant, to the best
of its knowledge, knows of no event which but for the passage of time or the
giving of notice or both would constitute an event of default or breach by
Tenant or Landlord under the Lease; (e) neither Tenant nor, to the best of
Tenant's knowledge, Landlord has commenced any action or given or received any
notice for the purpose of terminating the Lease; (f) all rents, additional rents
and other sums currently due and payable under the Lease have been paid in full,
and no rents, additional rents or other sums payable under the Lease have been
paid for more than one (1) month in advance of the due dates thereof; (g) there
are no offsets or defenses to the payment of the rents, additional rents or
other sums due and payable under the Lease, except as expressly set forth in the
Lease; (h) Tenant has no option or right of first refusal to purchase the
premises demised under the Lease or any portion thereof; (i) no action, whether
voluntary or otherwise, is pending against Tenant under the bankruptcy,
insolvency or similar laws of the United States or any state thereof; and (j)
Tenant has deposited the security deposit set forth in the Lease with Landlord.
7. Lender to Receive Notices. Tenant shall provide Lender with copies of
all written notices of default sent to Landlord pursuant to the Lease
simultaneously with the transmission of such notices to the Landlord. Tenant
shall notify Lender and Landlord of any default by Landlord under the Lease
which would entitle Tenant to cancel the Lease or to an abatement of the rents,
additional rents or other sums payable thereunder, and agrees that,
notwithstanding any provisions of the Lease to the contrary, no notice of
cancellation thereof shall be effective, unless Lender shall have received
notice of default giving rise to such cancellation or abatement and shall have
failed within a reasonable period for remedying such default after receipt of
such notice to cure such default, or if such default cannot be cured within
sixty (60) days, shall have failed within a reasonable period after receipt of
such notice to commence and thereafter diligently pursue any action necessary to
cure such default.
8. Notices. All notices or other written communications hereunder shall be
deemed to have been properly given (i) upon delivery, if delivered in person or
by facsimile transmission with receipt acknowledged by the recipient thereof,
(ii) one (1) Business Day (hereinafter defined) after having been deposited for
overnight delivery with any reputable overnight courier service, or (iii) three
(3) Business Days after having been deposited in any post office or mail
depository regularly maintained by the U.S. Postal Service and sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
If to Tenant: Advent Software, Inc.
301 Brannan Street
San Francisco, CA 94107
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With Copy to: Wilson, Sonsini, Goodrich & Rosati
650 Page Mill road
Palo Alto, CA 94304
Attention: Norman Cruz, Esq. and
Neil Botwinoff
Facsimile No. 212-+371-1084
If to Lender: Lehman Brothers Holdings Inc.
3 World Financial Center
200 Vesey Street, 12th Floor
New York, Now York 10285
Attention: Mr. Yon Cho
Facsimile No. (212) 528-1233
With a copy to: Windels, Marx, Davies & Ives
156 West 56th Street
New York, New York 10019
Attention: James J. Thomas, Esq.
Facsimile No. (212) 262-1215
With an additional
copy to: Hatfield Philips, Inc.
285 Peachtree Center Avenue
Marquis Two Tower, Suite 2300
Atlanta, Georgia 30303
Attention: Mr. Robert Hyla
Facsimile No. (404) 420-5610
If to Landlord: 405 Lexington, L.L.C.
c/o Tishman Speyer Properties, L.P.
520 Madison Avenue
New York, New York 10022
Attention: Bruce Saber, Esq.
Facsimile No. (212) 935-8239
with a copy to: Davis & Gilbert, LLP
1740 Broadway
New York, New York 10019
Attention: Donald Sonnenborn, Esq.
Facsimile No. (212) 468-4888
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or addressed as such party may from time to time designate by written notice to
the other parties. For purposes of this Section 8, the term "Business Day" shall
mean a day on which commercial banks are not authorized or required by law to
close in New York, New York.
Either party by notice to the other may designate additional or different
addresses for subsequent notices or communications.
9. Joint and Several Liability. If Tenant consists of more than one person,
the obligations and liabilities of each such person hereunder shall be joint and
several. This Agreement shall be binding upon and inure to the benefit of Lender
and Tenant, its permitted subtenants and their respective successors and
assigns.
10. Definitions. The term "Lender" as used herein shall include the
successors and assigns of Lender and any nominee or designee of Lender and any
person, party or entity which shall succeed to the rights of Landlord under the
Lease or shall become the owner of the Property by reason of a foreclosure of
the Security Instrument or the acceptance of a deed or assignment in lieu of
foreclosure or otherwise. The term "Landlord" as used herein shall mean and
include the present landlord under the Lease and such landlord's predecessors
and successors in interest under the Lease but shall not mean or include Lender.
The term "Property" as used herein shall mean the Property, the improvements now
or hereafter located thereon and the estates therein encumbered by the Security
Instrument. The term "Tenant" as used herein shall mean and include the present
tenant under the Lease and its permitted successors in interest under the Lease.
11. No Oral Modifications. This Agreement may not be modified in any manner
or terminated, except by an instrument in writing executed by the parties
hereto.
12. Governing Law. This Agreement shall be deemed to be a contract entered
into pursuant to the laws of the state where the Property is located and shall
in all respects be governed, construed applied and enforced in accordance with
the laws of the state where the Property is located.
13. Inapplicable Provisions. If any term, covenant or condition of this
Agreement is held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be construed without such provision.
14. Duplicate Originals; Counterparts. This Agreement may be executed in
any number of duplicate originals, and each duplicate original shall be deemed
to be an original. This Agreement may be executed in several counterparts, each
of which counterparts shall be deemed an original instrument and all of which
together shall constitute a single Agreement. The failure of any party hereto to
execute this Agreement, or any counterpart hereof, shall not relieve the other
signatories from their obligations hereunder.
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15. Number and Gender. Whenever the context may require, any pronouns used
herein shall include the corresponding masculine, feminine or neuter forms, and
the singular form of nouns and pronouns shall include the plural and vice versa.
16. Transfer of Loan. Lender may sell, transfer and deliver the Note and
assign the Security Instrument, this Agreement and the other documents executed
in connection therewith to one or more Investors (as defined in the Security
Instrument) in the secondary mortgage market. In connection with such sale,
Lender may retain or assign responsibility for servicing the loan, including the
Note, the Security Instrument, this Agreement and the other documents executed
in connection therewith, or may delegate some or all of such responsibility
and/or obligations to a servicer, on behalf of the Investors. All references to
Lender herein shall refer to and include any such servicer to the extent
applicable.
17. Further Acts. Tenant will, at the cost of Tenant, and without expense
to Lender, do, execute, acknowledge and deliver all and every such further acts
and assurances as Lender shall, from time to time, reasonably require for the
better assuring and confirming unto Lender the Property and rights hereby
intended now or hereafter so to be, or for carrying out the intention or
facilitating the performance of the terms of this Agreement or for filing,
registering or recording this Agreement.
[Signatures on Following Page]
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IN WITNESS WHEREOF, Lender and Tenant have duly executed this Agreement as
of the date first above written.
LENDER:
LEHMAN BROTHERS HOLDINGS INC.,
a Delaware corporation
By:/s/ Yon Cho
------------------
Name: Yon Cho
Title: Authorized Signatory
TENANT:
AN ADVENT SOFTWARE, INC.
A DELAWARE CORPORATION
By:/s/ Irv Lichtenwald
--------------------
Name: Irv H. Lichtenwald
Title: CFO
The undersigned accepts and agrees to the provisions of Section 4 hereof:
LANDLORD:
405 LEXINGTON, L.L.C.,
A Delaware limited liability company
By: /s/ Bruce Saber
---------------------
Name: Bruce D. Saber
Title:Vice President
<PAGE>
EXHIBIT 13.1
SELECTED PORTIONS OF ADVENT'S 1999 ANNUAL REPORT TO STOCKHOLDERS
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
We are the leading provider of stand-alone and client/server software
products, data interfaces and related maintenance and services that automate,
integrate and support mission-critical functions of investment management
organizations. Our clients vary significantly in size and assets under
management and include investment advisors, brokerage firms, banks, hedge funds,
corporations, public funds, universities and non-profit organizations.
ACQUISITIONS
In February 1998, we issued 750,000 shares of Common Stock in exchange for
all of the outstanding shares of MicroEdge, a leading provider of software
products to foundations, corporations and other organizations to manage their
grant-making activities. This business combination was accounted for as a
pooling of interests and the results of operations of MicroEdge are included in
the financial statements beginning January 1, 1998. The results of operations as
well as the assets and liabilities of MicroEdge in 1997, or prior years, were
not material to the consolidated results of operations or financial position.
Accordingly, we did not restate our financial statements for periods prior to
January 1, 1998.
In May 1998, we issued 510,000 shares of Common Stock for certain assets of
the Grants Management Division of Blackbaud, Inc., a privately held company
located in Charleston, South Carolina. Through this acquisition we combined the
Grants Management product line of Blackbaud with MicroEdge. This transaction was
accounted for as a purchase and the results of operations of the business and
assets acquired are included in our financial statements from the date of
acquisition. We incurred a charge relating to in-process research and
development and other expenses of $5.4 million in connection with this
transaction. We believe that the technology required had not reached
technological feasibility and had no alternative future use. Other intangibles
of $2.0 million were recorded in connection with this acquisition and are being
amortized over a period of 5 years.
In November 1998, we issued 45,000 shares of Common Stock and paid $4.1
million in exchange for all the outstanding shares of Hub Data, Inc., a
distributor of consolidated securities information and data to investment
management organizations. Hub Data is located in Cambridge, MA and delivers
services to over 240 institutional investment firms. This business combination
was accounted for as a purchase and the results of operations for Hub Data are
included in our financial statements beginning on the acquisition date. We
incurred a charge relating to in-process research and development of $3.0
million in connection with this transaction. We believe that the technology
acquired had not reached technological feasibility and had no alternative future
use. As a result of net liabilities assumed and acquisition expenses of $1.6
million, goodwill of $3.2 million was recorded in connection with this
transaction and is being amortized over a 7 year period.
In November 1998, we paid AUS $583,000 (approximately US $370,000) in
exchange for all the outstanding shares of Portfolio Management Systems, Pty.
Ltd., a distributor of Advent products in Australia. This business combination
was accounted for as a purchase and the results of operations are included in
our financial statements beginning on the acquisition date. This acquisition
provides an international channel for sale of our products and services. As a
result of net liabilities assumed and acquisition expenses of $2.0 million,
goodwill of $2.4 million was recorded in connection with this transaction and is
being amortized over a period of 10 years. Subsequent to the acquisition, we
changed the name of this subsidiary to Advent Australia.
DISTRIBUTOR RELATIONSHIP
We rely on a number of strategic alliances to help us achieve market
acceptance of our products and to leverage our development, sales, and marketing
resources. In the third quarter of 1999, our existing distributor in Scandinavia
formed Advent Europe to distribute the Advent Office suite throughout most of
the European Community. Advent Europe, incorporated in The Netherlands, is an
independent entity and is financially backed by our Scandinavian
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distributor. It will make tax and language modifications to Advent Office to fit
the various needs of the local jurisdictions and then market and license the
Advent Office suite. All transactions between Advent Europe and us will be
transacted in U.S. dollars.
SECONDARY OFFERING
In June 1999, we completed a secondary public offering of 3.9 million
shares of Common Stock at an offering price of $20.688 per share. Of the 3.9
million shares of Common Stock offered, 300,000 shares were sold by a selling
stockholder. The net proceeds of the offering to Advent were $70.2 million.
STOCK SPLITS
Our Board of Directors approved a three-for-two split of our Common Stock
in July 1999. The stock split was effected as a stock dividend. Stockholders of
record as of the close of business on July 30, 1999 were issued a certificate
representing one additional Common Share for every two shares of Common Stock
held on the record date. These certificates were distributed on August 16, 1999.
This stock split increased the number of shares outstanding from approximately
9.6 million shares to approximately 14.4 million shares.
Our Board of Directors approved a two-for-one split of our Common Stock in
February 2000. The stock split was effected as a stock dividend. Stockholders of
record as of the close of business on February 28, 2000 were issued a
certificate representing one additional Common Share for each share of Common
Stock held on the record date. These certificates were distributed on March 13,
2000. This stock split increased the number of shares of Common Stock
outstanding from approximately 14.8 million shares to approximately 29.6 million
shares.
All shares and per share data in this Form 10-K have been adjusted to
reflect both stock splits.
RESULTS OF OPERATIONS FOR THE YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997
REVENUES
Net revenues were $102 million, $71 million, and $49 million in 1999, 1998,
and 1997, respectively, representing increases of 43% from 1998 to 1999 and 46%
from 1997 to 1998. Our net revenues are derived from license and development
fees, maintenance and other recurring revenues, and professional services and
other revenues related to our software products. In each of 1999, 1998 and 1997,
the majority of our net revenues were from domestic sales, with international
sales representing less than 8% of net revenues. License revenues are derived
from the licensing of software products while development fees are derived from
development contracts that we have entered into with other companies, including
customers and development partners. Maintenance and other recurring revenues are
derived from maintenance fees charged in the initial licensing year, renewals of
annual maintenance services in subsequent years and revenues derived from client
utilization of proprietary interfaces to access pricing and other data supplied
by third parties. Professional services and other revenues include fees for
consulting, implementation and integration management, custom programming,
training services and semi-annual conferences.
Axys and its related products and services accounted for the majority of
net revenues in 1999, 1998 and 1997. However, we have been successful in
increasing multi-product sales by emphasizing our suite of products and,
therefore, new products have accounted for an increasing portion of net revenues
in all three years.
Each of the major revenue categories has historically varied as a
percentage of net revenues and we expect this variability to continue in future
periods. This variability is primarily due to the timing of the introduction of
new products, the relative size and timing of individual licenses, as well as
the complexity of the implementation, the resulting proportion of the
maintenance and professional services components of these license transactions
and the amount of client utilization of pricing and related data.
LICENSE AND DEVELOPMENT FEES. License and development fees revenue were
$49.3 million, $36.6 million and $23.7 million in 1999, 1998 and 1997,
respectively, representing increases of 35% from 1998 to 1999 and 54% from 1997
to 1998. License and development fees revenues as a percentage of net revenues
were 49%, 52% and 49% in 1999, 1998 and 1997, respectively. The increase in
absolute dollars from 1998 to 1999 was primarily due to increased
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demand for the Advent Office suite and increased demand for our Geneva software
which is sold primarily to global financial institutions, partially offset by
decreased development fees from certain development partners. The increase in
absolute dollars from 1997 to 1998 was primarily due to continued demand for our
Advent Office suite and increased development fees. We typically license our
products on a per server, per user basis with the price per site varying based
on the selection of the products licensed and the number of authorized users. As
we carry out larger implementations and continue our Internet initiative, we may
enter into further development contracts through which we earn development fees.
In 1999 and 1998, license revenues also increased due to an increase of
multi-product transactions. We expect these transactions to continue to
represent a significant proportion of revenues.
MAINTENANCE AND OTHER RECURRING. Maintenance and other recurring revenues
were $38.2 million, $25.5 million and $18.0 million in 1999, 1998 and 1997,
respectively, representing increases of 50% from 1998 to 1999 and 42% from 1997
to 1998. Maintenance and other recurring revenues, as a percentage of net
revenues, were 38%, 36% and 37% in 1999, 1998 and 1997, respectively. The growth
in maintenance and other recurring revenues, in absolute dollars, in all periods
was primarily due to a larger customer base and higher average maintenance fees.
Higher average maintenance fees are primarily due to the increased complexity of
the maintenance services provided and increased client use of proprietary
interfaces to access pricing and other data provided by our Hub Data subsidiary
as well as those supplied by external parties. Our proprietary interfaces enable
users of the Advent Office suite as well as Geneva to retrieve critical data
from external sources, including pricing, corporate actions, and analytical and
fundamental data via interfaces to information vendors, such as Interactive
Data. In addition, in 1999 and 1998, increased demand for implementation
management support and the growth of our client base due to multi-product
transactions contributed to the increase in maintenance and other recurring
revenues. The acquisitions we made in 1998, to a lesser extent, also contributed
to the rise in maintenance and other recurring revenues during 1999.
PROFESSIONAL SERVICES AND OTHER. Professional services and other revenues
were $14.1 million, $8.9 million and $6.9 million in 1999, 1998 and 1997,
respectively, representing increases of 58% from 1998 to 1999 and 29% from 1997
to 1998. Professional services and other revenues as a percentage of net
revenues were relatively stable at 14% for 1999, 12% for 1998 and 14% for 1997.
Professional services and other revenues increased $5.2 million from 1998 to
1999 and $2.0 million from 1997 to 1998. The increase from 1998 to 1999 was
primarily due to higher consulting fees due to the increasingly complex
implementations at larger financial institutions, increased services provided by
our MicroEdge subsidiary and increased revenues from our semi-annual client
conferences. The increase from 1997 to 1998 was primarily due to additional
consulting revenue associated with higher product sales activity and additional
interface business resulting from higher market demand for automated interfaces.
In 1999 and 1998, the increase was also attributed to increased consulting fees.
COST OF REVENUES
COST OF LICENSE AND DEVELOPMENT FEES. Cost of license and development fees
revenues were $3.6 million, $2.9 million, and $601,000 in 1999, 1998 and 1997,
respectively, representing 7%, 8% and 3% of license and development fees
revenues in these periods, respectively. Cost of license and development fees
revenue consists primarily of the cost of product media and duplication,
manuals, packaging materials, the direct labor involved in producing and
distributing our software as well as royalties paid to third parties. Cost of
license and development fees as a percentage of related revenues between 1999
and 1998 decreased slightly due to decreased development fee revenues which have
higher related costs. The increase from 1997 to 1998 was primarily due to costs
associated with increased development fee projects that have a higher cost of
revenue. The increase in absolute dollars in all years is primarily related to
increased revenues.
COST OF MAINTENANCE AND OTHER RECURRING. Cost of maintenance and other
recurring revenues were $10.4 million, $6.3 million and $4.8 million in 1999,
1998 and 1997, respectively, representing 27%, 25% and 27% of maintenance and
other recurring revenues in these periods, respectively. These costs are
primarily comprised of the direct costs of providing technical support and other
services for recurring revenues, the engineering costs associated with product
updates and royalties paid to third party data vendors. These expenses, in
absolute dollars, increased in each year due to increased staffing required to
support a larger customer base and more complex implementations as well as
increased royalties paid to third party vendors as a result of increasing data
revenues from our clients' use of proprietary interfaces.
22
<PAGE>
COST OF PROFESSIONAL SERVICES AND OTHER. Cost of professional services and
other revenues were $5.3 million, $3.9 million and $3.6 million in 1999, 1998
and 1997, respectively, representing 38%, 44% and 53% of professional services
and other revenues in these periods, respectively. These costs consist primarily
of personnel related costs of the client services and support organization that
are incurred in providing consulting, custom programming, conversions of data
from clients' previous systems, and cost of hosting our client conferences. To
the extent that such personnel are not fully used in consulting, training,
conversion or custom programming projects, they are allocated to presales,
marketing and engineering activities and the resultant costs are charged to
operating expenses. Cost of professional services and other, in absolute
dollars, increased year to year due to increase staffing necessary to provide
services to an expanded installed base. Cost of professional services as a
percentage of related revenues decreased from 1998 to 1999 primarily due to
revenues increasing faster than expenses.
OPERATING EXPENSES
SALES AND MARKETING. Sales and marketing expenses were $32.2 million, $23.5
million and $15.6 million in 1999, 1998 and 1997, respectively, representing
increases of 37% from 1998 to 1999 and 51% from 1997 to 1998. Sales and
marketing expenses, as a percentage of net revenues remained steady at 32%, 33%
and 32% in 1999, 1998 and 1997, respectively. Sales and marketing expenses
consist primarily of the costs of all personnel involved in the sales and
marketing process, sales commissions, advertising and promotional materials,
sales facilities expense, trade shows, and seminars. Sales and marketing
expenses, in absolute dollars, increased from 1997 to 1998 and from 1998 to 1999
due to the continued increase in sales and marketing employees and increased
marketing efforts towards the Advent Office suite and our Internet Initiative.
The year over year growth in sales and marketing expenses were higher between
1997 and 1998 because of our initial efforts towards our Internet initiative and
other new product introductions.
PRODUCT DEVELOPMENT. Product development expenses were $16.8 million, $12.6
million and $9.4 million in 1999, 1998 and 1997, respectively, representing
increases of 33% from 1998 to 1999 and from 1997 to 1998. Product development
expenses as a percentage of net revenues were relatively stable at 17%, 18% and
19% in 1999, 1998 and 1997, respectively. Product development expenses increased
in absolute dollars primarily due to an increase in personnel as we increased
our product development efforts to accelerate the rate of product enhancements
and new product introductions. Product development expenses as a percentage of
net revenues have been declining due to revenues increasing at a faster rate
than the expenses. Development costs prior to achievement of technological
feasibility are expensed as product development costs in the period incurred.
Once the point of technological feasibility is reached, development costs are
capitalized. No software development costs have been capitalized during 1999,
1998 or 1997.
GENERAL AND ADMINISTRATIVE. General and administrative expenses were $9.9
million, $7.5 million and $5.1 million in 1999, 1998 and 1997, respectively,
representing increases of 31% from 1998 to 1999 and 47% from 1997 to 1998.
General and administrative expenses as a percentage of net revenues were 10% in
1999 and 11% in 1998 and 1997. General and administrative expenses consist
primarily of personnel costs for finance, administration, operations and general
management, as well as legal and accounting expenses. The increases from 1998 to
1999 and from 1997 to 1998 were primarily due to increased staffing to support
our growth.
AMORTIZATION OF INTANGIBLES. We recorded amortization of intangibles of
approximately $1.5 million for 1999. This was based on recorded goodwill of $5.6
million in connection with the acquisitions of HubData and Advent Australia,
formerly named Portfolio Management Systems, Pty. Ltd. As of this filing, we
have made progress on the development efforts associated with the HubData
products. In addition, the revenue and costs associated with the in-process
technology have been materially consistent with the assumptions we used in the
valuation. Since the valuation was based on our estimates of market potential,
product introductions, and technology trends, we will periodically assess our
estimates related to the valuation model to determine if the assets acquired
have been impaired. If we determine that there has been impairment, there could
be additional charges to income.
PURCHASED RESEARCH AND DEVELOPMENT AND OTHER. In May 1998, we issued
510,000 shares of Common Stock for certain assets of the Grants Management
Division of Blackbaud, Inc. and incurred a charge for in-process research and
development and other expenses of $5.4 million in connection with this
transaction. In November 1998, we incurred a charge for in-process research and
development of $3.0 million in connection with the acquisition of Hub Data. In
determining the amount of in-process research and development, we engaged an
independent valuation firm to conduct an appraisal of the acquired assets. The
intangible assets acquired, including in-process research and development
23
<PAGE>
expenses, were valued based on estimates of future net cash flows discounted to
their present value at risk-adjusted rates of return.
The in-process research and development charge for Hub Data was determined
by estimating the net cash flows from the sale of the resulting projects,
discounted to net present value using a 25% discount rate and also assumed that
the project was approximately 61% complete.
The Blackbaud transaction resulted in the acquisition of certain assets,
but not an ongoing business. The assets acquired included rights to Blackbaud's
32-bit in-process technology, access to certain Blackbaud source code to be used
in developing the new Advent products, a non-compete agreement and access to the
Blackbaud customer base. The acquired technology was purchased for use in
Advent's research and development "grant management" project and had no
alternative future use.
INTEREST AND OTHER INCOME, NET
Interest and other income, net was approximately $4.6 million, $1.4 million
and $1.2 million in 1999, 1998 and 1997, respectively. Interest and other
income, net consists of interest income, interest expense and miscellaneous
non-operating income and expense items. The increase from 1997 to 1998 was due
to greater interest income generated from higher cash and short-term investment
balances. The increase from 1998 to 1999 was due to higher interest income from
the increased cash received from our secondary offering and from a one-time gain
of $1.2 million from the sale of securities. The securities were warrants from
one of our strategic partners as part of our initial business relationship which
we converted to stock and sold during the fourth quarter.
INCOME TAXES
We had effective income tax rates of 34%, 40% and 37% in 1999, 1998 and
1997, respectively. These rates differ from the federal statutory rate primarily
due to state income tax, offset by certain research and development credits. The
lower income tax rate in 1999 was primarily due to tax planning strategies
implemented in the second half of 1998. The higher rate in 1998 was due to
certain acquisition related charges incurred during 1998 that were not
deductible for tax purposes.
LIQUIDITY AND CAPITAL RESOURCES
Our cash and cash equivalents at December 31, 1999 were $64.3 million,
increasing by $28.7 million from $35.6 million at December 31, 1998. The
increase was due to $77.0 million provided by financing activities and $19.0
million provided by operating activities offset by $67.3 million used in
investing activities.
The net cash provided from operating activities for 1999 was primarily due
to net income and increases in deferred revenues and accrued liabilities offset
by increases in accounts receivable as well as prepaid and other assets.
Financing activities provided $77.0 million for 1999, primarily due to $70.2
million of proceeds from our secondary offering. The remaining was from proceeds
of the exercise of stock options and issuance of Common Stock in connection with
our employee stock purchase plan. Net cash used in investing activities of $67.3
million for 1999 related primarily to the purchases of short-term investments of
$52.6 million and expenditures for furniture, fixtures and equipment of $8.3
million. Further activity included prepayment of $7.0 million to a recurring
revenue partner to further bring new products and services to our clients.
At December 31, 1999, we had $121.9 million in working capital. We
currently have no significant capital commitments other than commitments under
operating leases. We believe that our available sources of funds and anticipated
cash flows from operations will be adequate to finance current operations and
anticipated capital expenditures through, at least, fiscal 2000.
IMPACT OF YEAR 2000 ISSUE
To the best of our knowledge, the products we currently license have been
designed to be and continue to be Year 2000 compliant. To date we have not
experienced any major issues from the products we currently license regarding
Year 2000 compliance. Year 2000 compliant means that our products will continue
to operate substantially in
24
<PAGE>
accordance with published documentation on and after January 1, 2000. Our
internal systems, to the best of our knowledge continue to be Year 2000
compliant. To date, we have experienced no major issues regarding our internal
operations regarding Year 2000 compliance, and before, during and after the date
change on Jan 1, 2000, no Year 2000 related interruption in either the
operations of systems or business processes has occurred. We do not anticipate
any significant additional Year 2000 issues or costs at this point.
NEW ACCOUNTING PRONOUNCEMENTS
In March 1998, AcSec issued SOP 98-1, Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use. SOP 98-1 requires that certain
costs related to the development or purchase of internal-use software be
capitalized and amortized over the estimated useful life of the software. SOP
98-1 is effective for financial statements issued for fiscal years beginning
after December 15, 1998. The adoption of SOP 98-1 did not have a significant
impact on the Company's results of operations.
In June of 1998, the FASB issued Statement of Financial Accounting
Standards No. 133, "Accounting for Derivative Instruments and Hedging
Activities," which establishes accounting and reporting standards for derivative
instruments, and for hedging activities. It requires that an entity recognize
all derivatives as either assets or liabilities in the statement of financial
position and measure those instruments at fair value. Management has not yet
evaluated the effects of this change on its operations.
In December 1998, the Accounting Standards Executive Committee (AcSEC)
released Statement of Position 98-9, or SOP 98-9, Modification of SOP 97-2,
"Software Revenue Recognition," with respect to certain transactions. SOP 98-9
amends SOP 97-2 to require that an entity recognize revenue for multiple element
arrangements by means of the "residual method" when (1) there is vendor-specific
objective evidence (VSOE) of the fair values of all the undelivered elements
that are not accounted for by means of long-term contract accounting, (2) VSOE
of fair value does not exist for one or more of the delivered elements, and (3)
all revenue recognition criteria of SOP 97-2 (other than the requirement for
VSOE of the fair value of each delivered element) are satisfied.
The provisions of SOP 98-9 that extend the deferral of certain paragraphs
of SOP 97-2 became effective December 15, 1998. These paragraphs of SOP 97-2 and
SOP 98-9 will be effective for transactions that are entered into in fiscal
years beginning after March 15, 1999. Retroactive application is prohibited. We
have evaluated the requirements of SOP 98-9 and do not believe it will have a
material impact on our current revenue recognition policies.
In July 1999, the FASB issued Statement of Financial Accounting Standards
No. 137, or SFAS No. 137, Accounting for Derivative Instruments and Hedging
Activities - Deferral of the Effective Date of FASB No. 133. SFAS 137 deferred
the effective date of SFAS 133 until the first fiscal quarter beginning after
June 15, 2000.
In December 1999, the Securities and Exchange Commission issued Staff
Accounting Bulletin No. 101 (SAB 101), "Revenue Recognition in Financial
Statements." SAB 101 provides guidance for revenue recognition under certain
circumstances. We are currently evaluating the impact of SAB 101 on our
financial statements and related disclosures. The accounting and disclosures
prescribed by SAB 101 will be effective for our fiscal year ended December 31,
2000.
RISK FACTORS AND FORWARD-LOOKING STATEMENTS
The discussion in "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and elsewhere in this Annual Report
contains trend analysis and other forward-looking statements that are based on
current expectations and assumptions made by management. Words such as
"expects", "anticipates", "intends", "plans", "believes", "seeks", "estimates",
and variations of such words and similar expressions are intended to identify
such forward-looking statements. These statements are not guarantees of future
performance and involve certain risks and uncertainties, which are difficult to
predict. Therefore, actual results could differ materially from those expressed
or forecasted in the forward-looking statements as a result of the factors
summarized below and other risks detailed from time to time in reports filed
with the Securities and Exchange Commission, including our 1999 Annual Report to
Stockholders, incorporated by reference in our 1999 Form 10-K Report.
Additionally, the financial statements for the periods presented are not
necessarily indicative of results to be expected for any future period.
24
<PAGE>
We operate in a rapidly changing environment that involves a number of
risks, some of which are beyond our control. These risks include the potential
for period to period fluctuations in operating results and the dependence on the
successful development and market acceptance of new products and product
enhancements on a timely, cost effective basis, as well as the stability of
financial markets, maintenance of our relationship with Interactive Data and
price and product/performance competition. In particular, our net revenues and
operating results have varied substantially from period-to-period on a quarterly
basis and may continue to fluctuate due to a number of factors. Our software
products typically are shipped shortly after receipt of a signed license
agreement. License backlog at the beginning of any quarter typically represents
only a small portion of that quarter's expected revenues. In addition, as
licenses into multi-user networked environments increase both in individual size
and number, the timing and size of individual license transactions are becoming
increasingly important factors in our quarterly operating results. The sales
cycles for these transactions are often lengthy and unpredictable, and the
ability to close large license transactions on a timely basis or at all could
cause additional variability in our quarterly operating results. In addition,
our results could be adversely impacted by generic issues surrounding market
volatility, global economic uncertainty and reductions in capital expenditures
by large customers. The target clients for our products include a range of
organizations that manage investment portfolios, including investment advisors,
brokerage firms, banks and hedge funds. In addition, we target corporations,
public funds, universities and non-profit organizations, which also manage
investment portfolios and have many of the same needs. The success of many of
our clients is intrinsically linked to the health of the financial markets. We
believe that demand for our products could be disproportionately affected by
fluctuations, disruptions, instability or downturns in the financial markets
which may cause clients and potential clients to exit the industry or delay,
cancel or reduce any planned expenditures for investment management systems and
software products.
Our future success will continue to depend upon our ability to develop our
products, such as Advent Office suite, and Geneva, that continue to address the
future needs of our target markets and to respond to emerging industry standards
and practices. We are directing a significant amount of our product development
efforts to the on-going development of Geneva. The failure to achieve widespread
market acceptance of Geneva on a timely basis would adversely affect our
business and operating results. To take advantage of the Internet, we have
launched an Internet Initiative whereby we are developing services, both
announced and unannounced, to bring Internet-based products and services to
clients. As we continue to develop new products and services, we have and will
continue to enter into development agreements with information providers,
clients, or other companies in order to accelerate the delivery of new products
and services. There can be no assurance that we will be successful in marketing
our existing products, new product or modifications of our products. Our failure
to do so could adversely affect our business and operating results.
26
<PAGE>
Advent Software, Inc.
Consolidated Balance Sheets
<TABLE>
<CAPTION>
December 31, 1999 1998
- --------------------------------------------------------------------------------------------------------------------------
(in thousands, except per share data)
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 64,315 $ 35,602
Short-term marketable securities 54,811 7,682
Accounts receivable, net of allowance for doubtful accounts of
$716 in 1999 and $362 in 1998 25,452 17,452
Prepaid expenses and other 3,789 2,010
Deferred income taxes 3,209 1,900
------------------ ------------------
Total current assets 151,576 64,646
------------------ ------------------
Fixed assets, net 16,661 11,433
Other assets, net 22,951 11,131
------------------ ------------------
Total assets $ 191,188 $ 87,210
================== ==================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 1,185 $ 1,793
Accrued liabilities 7,962 6,270
Deferred revenues 17,230 14,511
Income taxes payable 3,328 3,924
------------------ ------------------
Total current liabilities 29,705 26,498
------------------ ------------------
Long-term liabilities:
Other liabilities 824 537
------------------ ------------------
Total liabilities 30,529 27,035
------------------ ------------------
Stockholders' equity:
Preferred Stock, $0.01 par value
Authorized: 2,000 shares
Issued and outstanding: none - -
Common stock, $0.01 par value
Authorized: 40,000 shares
Issued and outstanding: 29,250 shares in 1999
and 24,627 shares in 1998 292 246
Additional paid-in capital 130,960 47,990
Retained earnings 29,382 11,939
Cumulative other comprehensive income 25 -
------------------ ------------------
Total stockholders' equity 160,659 60,175
------------------ ------------------
Total liabilities and stockholders' equity $ 191,188 $ 87,210
================== ==================
- --------------------------------------------------------------------------------------------------------------------------
The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
27
<PAGE>
Advent Software, Inc.
Consolidated Statements of Income and Comprehensive Income
<TABLE>
<CAPTION>
Year Ended December 31, 1999 1998 1997
- --------------------------------------------------------------------------------------------------------------------------------
(in thousands, except per share data)
<S> <C> <C> <C>
Revenues:
License and development fees $ 49,270 $ 36,588 $ 23,710
Maintenance and other recurring 38,239 25,539 18,042
Professional services and other 14,051 8,871 6,861
----------------- ---------------- ----------------
Net revenues 101,560 70,998 48,613
----------------- ---------------- ----------------
Cost of revenues:
License and development fees 3,602 2,931 601
Maintenance and other recurring 10,431 6,261 4,832
Professional services and other 5,292 3,874 3,638
----------------- ---------------- ----------------
Total cost of revenues 19,325 13,066 9,071
----------------- ---------------- ----------------
Gross margin 82,235 57,932 39,542
----------------- ---------------- ----------------
Operating expenses:
Sales and marketing 32,216 23,465 15,580
Product development 16,770 12,582 9,439
General and administrative 9,883 7,533 5,125
Amortization of intangibles 1,533 - -
Purchased research and development and other - 8,440 -
----------------- ---------------- ----------------
Total operating expenses 60,402 52,020 30,144
----------------- ---------------- ----------------
Income from operations 21,833 5,912 9,398
Interest and other income, net 4,596 1,442 1,236
----------------- ---------------- ----------------
Income before income taxes 26,429 7,354 10,634
Provision for income taxes 8,986 2,955 3,921
----------------- ---------------- ----------------
Net income $ 17,443 $ 4,399 $ 6,713
================= ================ ================
Other comprehensive income, net of tax
Foreign currency translations adjustment 25 - -
----------------- ---------------- ----------------
Comprehensive income $ 17,468 $ 4,399 $ 6,713
================= ================ ================
NET INCOME PER SHARE DATA
Diluted
Net income per share $ 0.58 $ 0.17 $ 0.28
Shares used in per share calculations 30,324 26,110 24,051
Basic
Net income per share $ 0.64 $ 0.18 $ 0.30
Shares used in per share calculations 27,072 24,198 22,563
- --------------------------------------------------------------------------------------------------------------------------------
The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
28
<PAGE>
Advent Software, Inc.
Consolidated Statements of Stockholders' Equity
<TABLE>
<CAPTION>
Cumulative
Common Stock Additional Other
----------------- Paid-in Retained Comprehensive Total
Shares Amount Capital Earnings Income Equity
- ------------------------------------------------------------------------------------------------------------------------------------
(in thousands)
<S> <C> <C> <C> <C> <C> <C>
Balances, December 31, 1996 22,032 $220 $ 34,914 $ 1,928 $ - $ 37,062
Three
Exercise of stock options 600 6 1,139 1,145
Tax benefit from exercise of stock options 704 704
Common stock issued under employee stock purchase plan 114 1 868 869
Net income 6,713 6,713
-----------------------------------------------------------------------
Balances, December 31, 1997 22,746 227 37,625 8,641 46,493
Exercise of stock options 462 5 1,576 1,581
Tax benefit from exercise of stock options 795 795
Common stock issued under employee stock purchase plan 114 1 945 946
Pooling of interests with MicroEdge 750 8 (5) (1,101) (1,098)
Shares issued in connection with acquisition of HubData 45 - 546 546
Shares issued in connection with acquisition of Blackbaud 510 5 6,508 6,513
Net income 4,399 4,399
-----------------------------------------------------------------------
Balances, December 31, 1998 24,627 246 47,990 11,939 60,175
Exercise of stock options 921 9 5,256 5,265
Tax benefit from exercise of stock options 6,040 6,040
Common stock issued in secondary offering, net 3,600 36 70,202 70,238
Common stock issued under employee stock purchase plan 102 1 1,472 1,473
Translation adjustment 25 25
Net income 17,443 17,443
-----------------------------------------------------------------------
Balances, December 31, 1999 29,250 $292 $ 130,960 $ 29,382 $ 25 $ 160,659
=======================================================================
- -----------------------------------------------------------------------------------------------------------------------------------
The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
29
<PAGE>
Advent Software, Inc.
Consolidated Statements of Cash Flows
<TABLE>
<CAPTION>
Year ended December 31, 1999 1998 1997
- ----------------------------------------------------------------------------------------------------------------------------------
(in thousands)
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $ 17,443 $ 4,399 $ 6,713
Adjustments to reconcile net income to net cash
provided by (used in) operating activities:
Purchased research and development and other - 7,511 -
Depreciation and amortization 4,578 2,559 1,970
Provision for doubtful accounts 1,130 471 248
Deferred income taxes (2,729) (3,514) (267)
Deferred rent 287 - (62)
Cash provided by (used in) operating assets and liabilities:
Accounts receivable (9,130) (5,521) (3,975)
Prepaid and other current assets (1,779) (401) (789)
Accounts payable (608) 539 168
Accrued liabilities 1,692 1,220 350
Deferred revenues 2,718 6,403 1,761
Income taxes payable 5,444 3,006 1,565
Net liabilities assumed in pooling of interests with Microedge - (1,101) -
--------------- -------------- ---------------
Net cash provided by operating activities 19,046 15,571 7,682
--------------- -------------- ---------------
Cash flows from investing activities:
Net cash used in acquisition of Hub Data, net of cash acquired - (4,279) -
Net cash used in acquisition of Portfolio Management Systems, net of
cash acquired - (446) -
Acquisition of fixed assets (8,276) (6,186) (5,290)
Proceeds from sale of fixed assets - 60 -
Purchases of short-term marketable securities (52,558) (4,880) (10,041)
Maturities of short-term marketable securities 5,429 7,229 1,183
Purchase of other investments (3,160) - -
Long-term prepaids (8,284) - -
Deposits and other (486) (19) -
--------------- -------------- ---------------
Net cash used in investing activities (67,335) (8,521) (14,148)
--------------- -------------- ---------------
Cash flows from financing activities:
Proceeds from exercise of stock options 5,294 1,581 1,145
Proceeds from issuance of common stock 71,682 946 869
--------------- -------------- ---------------
Net cash provided by financing activities 76,976 2,527 2,014
--------------- -------------- ---------------
Effect of exchange rate changes on cash and short-term securities 26 - -
--------------- -------------- ---------------
Net increase (decrease) in cash and cash equivalents 28,713 9,577 (4,452)
Cash and cash equivalents at beginning of year 35,602 26,025 30,477
--------------- -------------- ---------------
Cash and cash equivalents at end of year $ 64,315 $ 35,602 $ 26,025
=============== ============== ===============
Supplemental disclosure of cash flow information:
Cash paid for income taxes during year $ 5,399 $ 2,888 $ 2,515
Issuance of common stock shares for the acquisition of Blackbaud: - 6,513 -
Issuance of common stock shares for the acquisition of Hub Data: - 546 -
- ------------------------------------------------------------------------------------------------------------------------------------
The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
30
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
OPERATIONS We provide stand-alone and client/server software products, data
interfaces and related maintenance and services that automate, integrate and
support certain mission-critical functions of the front, middle and back office
of investment management organizations. Our clients vary significantly in size
and assets under management and include investment advisors, brokerage firms,
banks, hedge funds, corporations, public funds, foundations, universities and
non-profit organizations.
PRINCIPLES OF CONSOLIDATION The consolidated financial statements include
the accounts of Advent and its wholly-owned subsidiaries. All intercompany
transactions and amounts have been eliminated.
CASH AND CASH EQUIVALENTS Cash equivalents are comprised of highly liquid
investments purchased with an original maturity of 90 days or less. These
securities are maintained with major financial institutions.
MARKETABLE SECURITIES Short-term marketable securities are securities with
maturities greater than 90 days but less than one year. They are classified as
held-to-maturity securities, stated at cost and adjusted for amortization of
premiums and accretion of discounts to maturity. Amounts reported for short-term
investments are considered to approximate the fair value based on comparable
market information available at the respective balance sheet dates. Realized and
unrealized investment gains and losses have not been significant.
FAIR VALUE OF FINANCIAL INSTRUMENTS The amounts reported for cash
equivalents, marketable securities, receivables, accounts payable, accrued
liabilities and other financial instruments are considered to approximate their
market values based on comparable market information available at the respective
balance sheet dates, and their short-term nature.
Financial instruments that potentially subject us to concentrations of
credit risks comprise, principally, cash, short-term marketable securities, and
trade accounts receivable. We invest excess cash through banks, mutual funds,
and brokerage houses primarily in highly liquid securities and have investment
policies and procedures which are reviewed periodically to minimize credit risk.
Advent does not require collateral from its customers but performs ongoing
credit evaluations and maintains reserves for potential credit losses which
historically have been within management's estimates.
DEPRECIATION AND AMORTIZATION Fixed assets are stated at cost. Depreciation
of leasehold improvements is computed using the straight-line method over the
shorter of the estimated useful life of the assets or the remaining lease term.
Other fixed assets are depreciated using the straight-line method over the
estimated useful life of the related assets, generally five years.
CAPITALIZED SOFTWARE Costs incurred for software development prior to
technological feasibility are expensed as product development costs in the
period incurred. Once the point of technological feasibility is reached,
development costs are capitalized. No software costs have been capitalized
during 1999, 1998 or 1997.
INVESTMENTS Investments consisted of nonmarketable investments in private
companies, which are carried at the lower of cost or net realizable value. The
estimated aggregate fair value of these investments approximated the carrying
amount at December 31, 1999.
REVENUE RECOGNITION We license application software programs and offer
annual maintenance programs which provide for technical support and updates to
software products. Our development agreements generally provide for development
of technologies and products which are expected to become part of our product or
product offerings in the future. Certain agreements may require royalty payments
based on future sales of the developed products. Such amounts will be included
in costs of goods sold. We also offer customers on-site consulting services,
training, custom programming, and other services.
We adopted the provisions of Statement of Position 97-2, or SOP 97-2,
Software Revenue Recognition, as amended by Statement of Position 98-4, Deferral
of the Effective Date of Certain Provisions of SOP 97-2, effective January 1,
1998. SOP 97-2 supersedes Statement of Position 91-1, Software Revenue
Recognition, and delineates the accounting for software product and maintenance
revenue. Under SOP 97-2, we recognize license revenue upon shipment of a product
to
31
<PAGE>
the client if a signed contract exists, the fee is fixed and determinable and
collection of resulting receivables is probable. For contracts with multiple
obligations (e.g. deliverable and undeliverable products, maintenance and other
services), we allocate revenue to each component of the contract based on
objective evidence of its fair value, which is specific to the client, or for
products not being sold separately, the price established by management. We
recognize revenue allocated to undelivered products when the criteria for
product revenue set forth above are met. We recognize revenue allocated to
maintenance fees for ongoing customer support and product updates ratably over
the period of the maintenance contract. Payments for maintenance fees are
generally made in advance and are non-refundable. Revenues for interface and
other development and custom programming are recognized using the percentage of
completion method of accounting based on the costs incurred to date compared
with the estimated cost of completion. Revenues from professional services are
recognized as work is performed.
In December 1998, the Accounting Standards Executive Committee (AcSEC)
released Statement of Position 98-9, or SOP 98-9, Modification of SOP 97-2,
"Software Revenue Recognition," with respect to certain transactions. SOP 98-9
amends SOP 97-2 to require that an entity recognize revenue for multiple element
arrangements by means of the "residual method" when (1) there is vendor-specific
objective evidence (VSOE) of the fair values of all the undelivered elements
that are not accounted for by means of long-term contract accounting, (2) VSOE
of fair value does not exist for one or more of the delivered elements, and (3)
all revenue recognition criteria of SOP 97-2 (other than the requirement for
VSOE of the fair value of each delivered element) are satisfied.
The provisions of SOP 98-9 that extend the deferral of certain paragraphs
of SOP 97-2 became effective December 15, 1998. These paragraphs of SOP 97-2 and
SOP 98-9 will be effective for transactions that are entered into in fiscal
years beginning after March 15, 1999. Retroactive application is prohibited. We
have evaluated the requirements of SOP 98-9 and do not believe it will have a
material impact on our current revenue recognition policies.
NET INCOME PER SHARE Basic net income per share is computed by dividing net
income available to common stockholders by the weighted average number of common
shares outstanding for that period. Diluted net income per share is computed
giving effect to all dilutive potential common shares that were outstanding
during the period. Dilutive potential shares consist of incremental common
shares issuable upon exercise of stock options and warrants and conversion of
preferred stock for all periods. All share and per-share data presented reflect
the three-for-two stock split paid in August 1999 and the two-for one stock
split paid in March 2000 (See footnote 8).
RECLASSIFICATIONS Certain prior year amounts have been reclassified to the
current year presentation.
COMPREHENSIVE INCOME We have adopted the provisions of Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive Income",
effective January 1, 1998. This statement requires the disclosure of
comprehensive income and its components in a full set of general-purpose
financial statements. Comprehensive income is the change in equity from
transactions and other events and circumstances other than those resulting from
investments by owners and distributions to owners.
SEGMENT INFORMATION We adopted SFAS No. 131, "Disclosures about Segments of
an Enterprise and Related Information," which is effective for fiscal years
beginning after December 31, 1997. SFAS No. 131 supersedes SFAS No. 14,
"Financial Reporting for Segments of a Business Enterprise." SFAS No. 131
changes current practice under SFAS No. 14 by establishing a new framework on
which to base segment reporting and introduces requirements for interim
reporting of segment information.
We have determined that Advent has a single reportable segment consisting
of the development, marketing and sale of stand-alone and client/server software
products, data interfaces and related maintenance and services that automate,
integrate and support certain mission critical functions of investment
management organizations.
Management uses one measurement of profitability and does not disaggregate
its business for internal reporting. Our international operations in 1999, 1998
and 1997 have not been material to revenue or net income.
USE OF ESTIMATES The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities, the
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues
32
<PAGE>
and expenses during the reporting period. These estimates are based on
information available as of the date of the financial statements. Actual results
could differ from those estimates.
ACCOUNTING FOR LONG-LIVED ASSETS We review property, equipment, goodwill
and other intangible assets for impairment whenever events or changes in
circumstances indicate that the carrying amount of an asset may not be
recoverable. Recoverability is measured by comparison of its carrying amount to
future net cash flows the assets are expected to generate. If such assets are
considered to be impaired, the impairment to be recognized is measured by the
amount by which the carrying amount of the asset exceeds its fair market value.
Intangibles are amortized over their estimated useful lives (typically five to
ten years).
FOREIGN CURRENCY TRANSLATION The functional currency of the our foreign
subsidiary is the local currency, the Australian dollar. All assets and
liabilities denominated in foreign currency are translated into U.S. dollars at
the exchange rate on the balance sheet date. Revenues, costs and expenses are
translated at average rates of exchange prevailing during the period. Gains and
losses resulting from foreign currency transactions are included in the
consolidated statements of operations and have not been significant, to date.
ADVERTISING COSTS We expense advertising costs as incurred. Total
advertising expenses were approximately $173,000, $134,000 and $173,000 for the
years ended December 31, 1999, 1998 and 1997, respectively.
STOCK-BASED COMPENSATION We elected to continue to use the intrinsic
value-based method as allowed under Accounting Principles Board (APB) Opinion
No. 25, Accounting for Stock Issued to Employees, to account for all of its
stock-based employee compensation plans. Pursuant to SFAS No. 123, Accounting
for Stock-Based Compensation, we are required to disclose the pro forma effects
on operating results as if we had elected to use the fair value approach to
account for all its stock-based employee compensation plans (See footnote 8).
NEW ACCOUNTING PRONOUNCEMENTS In March 1998, AcSec issued SOP 98-1,
Accounting for the Costs of Computer Software Developed or Obtained for Internal
Use. SOP 98-1 requires that certain costs related to the development or purchase
of internal-use software be capitalized and amortized over the estimated useful
life of the software. SOP 98-1 is effective for financial statements issued for
fiscal years beginning after December 15, 1998. The adoption of SOP 98-1 did not
have a significant impact on the Company's results of operations.
In June of 1998, the FASB issued Statement of Financial Accounting
Standards No. 133, "Accounting for Derivative Instruments and Hedging
Activities," which establishes accounting and reporting standards for derivative
instruments, and for hedging activities. It requires that an entity recognize
all derivatives as either assets or liabilities in the statement of financial
position and measure those instruments at fair value. Management has not yet
evaluated the effects of this change on its operations.
In December 1998, the Accounting Standards Executive Committee (AcSEC)
released Statement of Position 98-9, or SOP 98-9, Modification of SOP 97-2,
"Software Revenue Recognition," with respect to certain transactions. SOP 98-9
amends SOP 97-2 to require that an entity recognize revenue for multiple element
arrangements by means of the "residual method" when (1) there is vendor-specific
objective evidence (VSOE) of the fair values of all the undelivered elements
that are not accounted for by means of long-term contract accounting, (2) VSOE
of fair value does not exist for one or more of the delivered elements, and (3)
all revenue recognition criteria of SOP 97-2 (other than the requirement for
VSOE of the fair value of each delivered element) are satisfied.
The provisions of SOP 98-9 that extend the deferral of certain paragraphs
of SOP 97-2 became effective December 15, 1998. These paragraphs of SOP 97-2 and
SOP 98-9 will be effective for transactions that are entered into in fiscal
years beginning after March 15, 1999. Retroactive application is prohibited. We
have evaluated the requirements of SOP 98-9 and do not believe it will have a
material impact on our current revenue recognition policies.
In July 1999, the FASB issued Statement of Financial Accounting Standards
No. 137, or SFAS No. 137, Accounting for Derivative Instruments and Hedging
Activities - Deferral of the Effective Date of FASB No. 133. SFAS 137 deferred
the effective date of SFAS 133 until the first fiscal quarter beginning after
June 15, 2000.
In December 1999, the Securities and Exchange Commission issued Staff
Accounting Bulletin No. 101 (SAB 101), "Revenue Recognition in Financial
Statements." SAB 101 provides guidance for revenue recognition under certain
33
<PAGE>
circumstances. We are currently evaluating the impact of SAB 101 on its
financial statements and related disclosures. The accounting and disclosures
prescribed by SAB 101 will be effective for our fiscal year ended December 31,
2000.
2. ACQUISITIONS
In February 1998, we issued 750,000 shares of Common Stock in exchange for
all of the outstanding shares of MicroEdge. MicroEdge is the leading provider of
software products to foundations, corporations and other organizations to manage
their grant-making activities. This business combination was accounted for as a
pooling of interests, and the results of operations of MicroEdge are included in
our financial statements beginning January 1, 1998. The results of operations as
well as the assets and liabilities of MicroEdge, in prior periods, were not
material to our consolidated results of operations or financial position.
Accordingly, we did not restate our financial statements for periods prior to
January 1, 1998.
In May 1998, we issued 510,000 shares of Common Stock for certain assets of
the Grants Management Division of Blackbaud, Inc. This acquisition combines the
grants management product line of Blackbaud with MicroEdge. This transaction was
accounted for as a purchase and the results of operations are included in our
financial statements beginning on the acquisition date. We incurred a charge for
in-process research and development and other expenses of $5.4 million in
connection with this transaction. We believe that the technology acquired had
not reached technological feasibility and had no alternative future use. Other
intangibles of $2.0 million were recorded in connection with this acquisition
and are being amortized over a period of 5 years.
In November 1998, we issued 45,000 shares of Common Stock and paid $4.1
million in exchange for all the outstanding shares of Hub Data, Inc., a
distributor of consolidated securities information and data to investment
management organizations. Hub Data is located in Cambridge, MA and delivers
services to over 240 institutional investment firms. This business combination
was accounted for as a purchase and the results of operations for Hub Data are
included in our financial statements beginning on the acquisition date. We
incurred a charge relating to in-process research and development of $3.0
million in connection with this transaction. We believe that the technology
acquired had not reached technological feasibility and had no alternative future
use. As a result of net liabilities assumed and acquisition expenses of $1.6
million, goodwill of $3.2 million was recorded in connection with this
transaction and is being amortized over a 7 year period.
In November 1998, we paid AUS $583,000 (approximately US $370,000) in
exchange for all the outstanding shares of Portfolio Management Systems, Pty.
Ltd., a distributor of Advent products in Australia. This business combination
was accounted for as a purchase and the results of operations are included in
our financial statements beginning on the acquisition date. This acquisition
provides an international channel for sale of our products and services. As a
result of net liabilities assumed and acquisition expenses of $2.0 million,
goodwill of $2.4 million was recorded in connection with this transaction and is
being amortized over a period of 10 years. Subsequent to the acquisition, we
changed the name of this subsidiary to Advent Australia.
34
<PAGE>
3. BALANCE SHEET DETAIL
The following is a summary of fixed assets:
December 31, 1999 1998
- -----------------------------------------------------------------------------
(in thousands)
Computer equipment $ 13,386 $ 10,444
Leasehold improvements 11,970 7,266
Furniture and fixtures 1,325 978
Telephone system 1,226 943
------------ ------------
27,907 19,631
Accumulated depreciation (11,246) (8,198)
------------ ------------
Total Fixed assets, net $ 16,661 $ 11,433
============ ============
Depreciation expense was approximately $3,048,000, $2,250,000, and $1,728,000
for the years ended December 31, 1999, 1998 and 1997, respectively.
The following is a summary of other assets:
December 31, 1999 1998
- -----------------------------------------------------------------------------
(in thousands)
Investments $ 3,160 $ -
Goodwill, net of accumulated amortization of
$1,183 at December 31, 1999 and $57 at
December 31, 1998. 4,403 5,529
Other intangibles, net of accumulated
amortization of $673 at December 31, 1999 and
$269 at December 31, 1998. 1,348 1,752
Deposits and other 1,012 526
Prepaids 8,284 -
Deferred taxes 4,744 3,324
------------ ------------
Total Other assets, net $ 22,951 $ 11,131
============ ============
Amortization expense was approximately $1,530,000, $319,000, and $242,000 for
the years ended December 31, 1999, 1998 and 1997, respectively.
The following is a summary of accrued liabilities:
December 31, 1999 1998
- -----------------------------------------------------------------------------
(in thousands)
Salaries and benefits payable $ 3,411 $ 2,624
Commissions payable 1,356 1,229
Sales taxes payable 1,061 1,212
Other 2,134 1,205
------------ ------------
Total accrued liabilities $ 7,962 $ 6,270
============ ============
35
<PAGE>
4. INCOME TAXES
The provision for income taxes includes:
Year Ended December 31,
1999 1998 1997
---------------------------------------------
(in thousands)
Current
Federal $ 9,585 $ 5,008 $ 3,089
State 2,129 1,461 815
Deferred
Federal (1,471) (2,650) 26
State (1,257) (864) (9)
-------------- --------------- --------------
Total $ 8,986 $ 2,955 $ 3,921
============== =============== ==============
Advent's effective tax rate, as a percent of pre-tax income, differs from the
statutory federal rate as follows:
Year Ended December 31,
1999 1998 1997
---------------------------------------------
Statutory federal rate 35.0% 35.0% 35.0%
State taxes 3.3 5.3 7.6
Research and development tax
credits (1.9) (4.4) (3.0)
Other (2.4) 4.3 (2.7)
-------------- --------------- --------------
Total 34.0% 40.2% 36.9%
============== =============== ==============
Deferred income taxes reflect the net tax effects of temporary differences
between the basis of assets and liabilities for financial reporting and income
tax purposes. The approximate tax effects of temporary differences which give
rise to net deferred tax assets are:
Year Ended December 31,
1999 1998
------------------------------
(in thousands)
Current:
Deferred revenue $ 128 $ 515
Accrued liabilities 1,002 725
Reserves 1,501 543
State taxes 254 117
Credits 324 -
-------------- ---------------
3,209 1,900
-------------- ---------------
Noncurrent:
Depreciation and amortization 4,380 3,149
Deferred rent 364 175
-------------- ---------------
4,744 3,324
-------------- ---------------
Total deferred tax assets $ 7,953 $ 5,224
============== ===============
36
<PAGE>
5. COMMITMENTS
We lease office space and equipment under noncancelable operating lease
agreements, which expire at various dates through June 2010. Some operating
leases contain escalation provisions for adjustments in the consumer price
index. We are responsible for maintenance, insurance, and property taxes and
have five-year extension options on our primary facility leases. Future minimum
payments under the noncancelable operating leases consist of the following at
December 31, 1999 (in thousands):
2000 $ 5,341
2001 6,464
2002 6,538
2003 6,692
2004 6,277
Thereafter 27,654
--------------
Total minimum lease
payments $ 58,966
==============
Rent expense for 1999, 1998, and 1997 was approximately $3,948,000, $2,494,000,
and $1,484,000, respectively.
6. EMPLOYEE BENEFIT PLANS
401(k) Plan
We have a 401(k) deferred savings plan covering substantially all
employees. Employee contributions, limited to 15% of compensation, are matched
50% by us, up to a maximum of $500 per employee per year. Matching contributions
by us in 1999, 1998 and 1997 were approximately $157,000, $117,000 and $103,000,
respectively. In addition to the employer matching contribution, we may make
profit sharing contributions at the discretion of the Board of Directors. We
made profit sharing contributions of approximately $218,000, $143,000 and
$121,000 in 1999, 1998 and 1997, respectively.
1995 Employee Stock Purchase Plan
All individuals employed by us are eligible to participate in the Employee
Stock Purchase Plan (Purchase Plan) if they are employed by us for at least 20
hours per week and at least five months per year. The Purchase Plan permits
eligible employees to purchase our Common Stock through payroll deductions at a
price equal to 85% of the lower of the closing sale price for our Common Stock
reported on the Nasdaq National Market at the beginning and the end of each
six-month offering period. In any calendar year, eligible employees can withhold
up to 10% of their salary and certain variable compensation. A total of 900,000
shares of Common Stock have been reserved for issuance under the Purchase Plan
of which approximately 489,000 shares have been issued. Approximately, 102,000,
114,000 and 114,000 shares were sold through the Purchase Plan in 1999, 1998 and
1997, respectively.
37
<PAGE>
7. NET INCOME PER SHARE
<TABLE>
<CAPTION>
Year ended December 31,
1999 1998 1997
------------------ ------------------ ------------------
<S> <C> <C> <C>
(in thousands, except per share data)
Net income $ 17,443 $ 4,399 $ 6,713
Reconciliation of shares used in basic and diluted
per share calculations
BASIC
Weighted average common shares outstanding 27,072 24,198 22,563
------------------ ------------------ ------------------
Shares used in basic net income per share calculation 27,072 24,198 22,563
------------------ ------------------ ------------------
Basic net income per share $ 0.64 $ 0.18 $ 0.30
================== ================== ==================
DILUTED
Weighted average common shares outstanding 27,072 24,198 22,563
Dilutive effect of stock options and warrants 3,252 1,912 1,488
------------------ ------------------ ------------------
Shares used in diluted net income per share calculation 30,324 26,110 24,051
------------------ ------------------ ------------------
Diluted net income per share $ 0.58 $ 0.17 $ 0.28
================== ================== ==================
Options outstanding at December 31, 1999, 1998 & 1997
not included in computation of diluted EPS because
the exercise price was greater than the average market
price 107,441 324,236 1,257,372
Price range of options not used in diluted EPS calculation $25.56 - $28.31 $12.50 - $14.21 $9.33 - $10.92
</TABLE>
8. STOCKHOLDERS' EQUITY
SECONDARY OFFERING
In June 1999, we completed a secondary public offering of 3.9 million
shares of Common Stock at an offering price of $20.688 per share. Of the 3.9
million shares of Common Stock offered, 300,000 shares were sold by a selling
stockholder. The net proceeds of the offering to Advent were $70.2 million.
STOCK SPLITS
Our Board of Directors approved a three-for-two split of our Common Stock
in July 1999. The stock split was effected as a stock dividend. Stockholders of
record as of the close of business on July 30, 1999 were issued a certificate
representing one additional Common Share for every two shares of Common Stock
held on the record date. These certificates were distributed on August 16, 1999.
This stock split increased the number of shares outstanding from approximately
9.6 million shares to approximately 14.4 million shares.
Our Board of Directors approved a two-for-one split of our Common Stock in
February 2000. The stock split was effected as a stock dividend. Stockholders of
record as of the close of business on February 28, 2000 were issued a
certificate representing one additional Common Share for each share of Common
Stock held on the record date. These certificates were distributed on March 13,
2000. The stock split increased the number of shares of Common Stock outstanding
from approximately 14.8 million shares to approximately 29.6 million shares.
All shares and per share data in this Form 10-K have been adjusted to
reflect both stock splits.
38
<PAGE>
STOCK OPTIONS
Under our 1992 Stock Plan (the Plan) we may grant options to purchase
Common Stock to employees and consultants. Options granted may be incentive
stock options or nonstatutory stock options and shall be granted at a price not
less than fair market value on the date of grant. Fair market value (as defined
in the Plan) and the vesting of these options shall be determined by the Board
of Directors. The options generally vest over 5 years and expire no later than
10 years from the date of grant. Unvested options on termination of employment
are canceled and returned to the Plan.
The activity under the Plan was as follows:
<TABLE>
<CAPTION>
Outstanding Options
----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Weighted
Aggregate Average
Available Number of Price Per Exercise Price Per
for Grant Options Share Price Share
- -------------------------------------------------------------------------------------------------------------------------
Balances, December 31, 1996 598,000 3,291,000 $0.21 - 10.67 $ 13,140,000 $ 3.99
Authorized 1,800,000 - - - -
Options granted (2,508,000) 2,508,000 8.34 - 9.59 21,737,000 8.67
Options exercised - (594,000) 0.21 - 6.50 (853,000) 1.43
Options canceled 436,000 (436,000) 0.34 - 10.67 (2,902,000) 6.66
--------------- --------------- ------------------ ------------------ ---------------
Balances, December 31, 1997 326,000 4,769,000 0.32 - 16.00 31,122,000 6.53
Authorized 1,500,000 - - - -
Options granted (1,998,000) 1,998,000 9.17 - 14.21 22,004,000 11.01
Options exercised - (454,000) 0.21 - 10.67 (1,372,000) 3.02
Options canceled 322,000 (322,000) 1.39 - 14.21 (2,594,000) 8.06
--------------- --------------- ------------------ ------------------ ---------------
Balances, December 31, 1998 150,000 5,991,000 0.67 - 28.42 49,160,000 8.21
Authorized 2,678,000 - - - -
Options granted (2,154,000) 2,154,000 15.58 - 25.56 49,495,000 22.98
Options exercised - (898,000) 0.33 - 21.38 (5,097,000) 5.68
Options canceled 174,000 (174,000) 1.67 - 14.21 (2,028,000) 11.66
--------------- --------------- ------------------ ------------------ ---------------
Balances, December 31, 1999 848,000 7,073,000 $ 0.34 -25.57 $ 91,530,000 $ 12.94
=============== =============== ================== ================== ===============
</TABLE>
At December 31, 1999, 1998 and 1997, 2,295,000, 1,713,000, and 993,000 options
outstanding were exercisable with an aggregate exercise price of $18,717,000,
$9,691,000 and $3,190,000, respectively.
In November 1998, the Board of Directors approved the 1998 Nonstatutory
Stock Option Plan ("Nonstatutory Plan") and reserved 300,000 shares of Common
Stock for issuance thereunder. Under our 1998 Nonstatutory Plan, we may grant
options to purchase Common Stock to employees and consultants, excluding persons
who are executive officers and directors. Options granted are nonstatutory stock
options and shall be granted at a price not less than fair market value on the
date of grant. Fair market value (as defined in the Nonstatutory Plan) and the
vesting of these options shall be determined by the Board of Directors. The
options generally vest over 5 years and expire no later than 10 years from the
date of grant. Unvested options on termination of employment are canceled and
returned to the Nonstatutory Plan. The activity under the Nonstatutory Plan was
as follows:
39
<PAGE>
<TABLE>
<CAPTION>
Outstanding Options
-----------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Weighted
Aggregate Average
Available Number of Price Per Exercise Price Per
for Grant Options Share Price Share
----------- ------------- ------------ -------------- ------------
Authorized 300,000 - $ - $ - $ -
Options granted (276,000) 276,000 12.42 3,423,000 12.42
Options exercised - - - - -
Options canceled - - - - -
----------- ------------- ------------ -------------- ------------
Balances, December 31, 1998 24,000 276,000 12.42 3,423,000 12.42
Authorized - - - - -
Options granted - - - - -
Options exercised - (15,700) 12.42 (194,800) 12.42
Options canceled 9,400 (9,400) 12.42 (117,300) 12.42
----------- ------------- ------------ -------------- ------------
Balances, December 31, 1999 33,400 250,900 $ 12.42 $3,110,900 $ 12.42
=========== ============= ============ ============== ============
</TABLE>
At December 31, 1999, 42,000 options under the 1998 Nonstatutory Plan were
exercisable with an aggregate exercise price of $521,000. No options outstanding
at December 31, 1998, under the 1998 Nonstatutory Plan, were exercisable.
In addition to the Plan and the Nonstatutory Plan, we have granted options
to purchase Common Stock to employees or consultants under special arrangements.
These options have an exercise price of $.34 per share. There were 14,000,
21,000 and 30,000 of these options outstanding at December 31, 1999, 1998 and
1997, respectively. The change in each period was a result of the exercise of
7,000, 9,000 and 6,000 options during 1999, 1998 and 1997 respectively. The
options outstanding at December 31, 1999 are fully vested.
Our 1995 Director Option Plan (the Director Plan) provides for the grant of
nonstatutory stock options to our non-employee directors (Outside Directors).
Under the Director Plan, each Outside Director is granted a non-qualified option
to purchase 30,000 shares on the last to occur of the date of effectiveness of
the Director Plan or the date upon which such person first becomes a director
with an exercise price equal to the fair market value of our Common Stock as of
the date of the grant. In subsequent years, each Outside Director is
automatically granted an option to purchase 6,000 shares on December 1 with an
exercise price equal to the fair value of our Common Stock on that date. Options
granted under the Director Plan vest over a five year period and have a ten year
term.
40
<PAGE>
The activity under the Director Plan was as follows:
<TABLE>
<CAPTION>
Outstanding Options
------------------------------------------------------------------
Weighted
Aggregate Average
Available Number of Price Per Exercise Price Per
for Grant Options Share Price Share
---------------- --------------- ---------------- ---------------- --------------
<S> <C> <C> <C> <C> <C>
Balances, December 31, 1996 117,000 108,000 $6.00 - 10.92 $ 736,500 $ 6.82
Options exercised - (8,400) 6.00 (50,400) 6.00
Options granted (72,000) 72,000 8.30 - 8.34 599,500 8.33
Options canceled 27,600 (27,600) 6.00 - 10.92 (194,500) 7.05
---------------- --------------- ---------------- ---------------- --------------
Balances, December 31, 1997 72,600 144,000 6.00 - 10.92 1,091,100 7.58
Options granted (24,000) 24,000 12.92 310,000 12.92
Options exercised - - - - -
Options canceled - - - - -
---------------- --------------- ---------------- ---------------- --------------
Balances, December 31, 1998 48,600 168,000 6.00 - 12.92 1,401,100 8.34
Options granted (24,000) 24,000 28.31 679,500 28.31
Options exercised - - - - -
Options canceled - - - - -
---------------- --------------- ---------------- ---------------- --------------
Balances, December 31, 1999 24,600 192,000 $6.00 - 28.31 $ 2,080,600 $ 10.84
================ =============== ================ ================ ==============
</TABLE>
At December 31, 1999, 1998 and 1997, 74,000, 57,000 and 25,000 options
outstanding were exercisable with an aggregate exercise price of $502,000,
$403,000 and $150,000, respectively.
We have adopted the disclosure-only provisions of SFAS No. 123.
Accordingly, no compensation cost has been recognized for our stock option
plans. If compensation had been determined based on the fair value at the grant
date for awards in 1999, 1998 and 1997 consistent with the provisions of SFAS
No. 123, Advent's net income and net income per share for the year ended
December 31, 1999, 1998 and 1997, respectively, would have been as follows:
1999 1998 1997
--------- --------- ---------
Net income - as reported $ 17,443 $ 4,399 $ 6,713
Net income - pro forma $ 11,658 $ 1,380 $ 5,026
PER SHARE DATA
Diluted
Net income per share - as reported $ 0.58 $ 0.17 $ 0.28
Net income per share - pro forma $ 0.38 $ 0.08 $ 0.31
Basic
Net income per share - as reported $ 0.64 $ 0.18 $ 0.30
Net income per share - pro forma $ 0.43 $ 0.09 $ 0.03
Such pro forma disclosures may not be representative of future compensation
costs because options vest over several years and additional grants are made
each year.
The weighted-average grant-date fair value of options granted were $13.16,
$5.61 and $4.83 per option for the years ended December 31, 1999, 1998 and 1997,
respectively.
41
<PAGE>
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes valuation model with the following weighted average
assumptions:
1999 1998 1997
--------------- --------------- ---------------
Risk-free interest rate 5.9% 4.9% 5.99%
Volatility 58.7 60.4 56.91
Expected life 5 years 5 years 5 years
Expected dividends None None None
Average turnover rate 8% 8% 8%
The risk-free interest rate was calculated in accordance with the grant
date and expected life. Volatility was based on weekly closing prices for our
Common Stock. The weighted average expected life was calculated based on the
vesting period and the exercise behavior of the participants.
The fair value for the Employee Stock Purchase Plan rights were also
estimated at the date of grant using a Black-Scholes options pricing model with
the following assumptions for 1999, 1998 and 1997: risk-free interest rates of
5.9%, 4.9% and 5.99%, respectively; dividend yield of 0%; volatility factors of
58.7%, 60.4% and 56.91% for 1999, 1998 and 1997, respectively; and a six-month
expected life. The weighted average fair value of the ESPP rights granted in
1999, 1998 and 1997 was $6.52, $3.21 and $2.99, respectively.
The options outstanding and currently exercisable by exercise price at
December 31, 1999 are as follows:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
----------------------------------------------- -------------------------------
Weighted
Average
Remaining
Number Contractual Weighted Average Number Weighted Average
Exercise Prices Outstanding Life Exercise Price Exercisable Exercise Price
<S> <C> <C> <C> <C> <C>
$ .33 - $ 2.17 709,000 4.81 $ 1.69 609,000 $ 1.63
$ 6.00 - $ 9.92 3,328,000 7.87 8.76 1,262,000 8.67
$10.67 - $15.58 1,376,000 8.11 12.47 436,000 12.05
$21.38 - $28.31 2,117,000 9.61 23.25 116,000 21.81
--------------- --------- ----------------- ------------ -----------------
7,530,000 8.12 $ 12.85 2,423,000 $ 8.15
=============== ========= ================= ============ =================
</TABLE>
42
<PAGE>
Report of Independent Accountants
To the Board of Directors and Stockholders of
Advent Software, Inc.:
In our opinion, the accompanying consolidated balance sheets and the
related consolidated statements of income and comprehensive income, of
stockholders' equity and of cash flows present fairly, in all material respects,
the financial position of Advent Software, Inc. and its subsidiaries at December
31, 1999 and December 31, 1998, and the results of their operations and their
cash flows for each of the three years in the period ended December 31, 1999, in
conformity with accounting principles generally accepted in the United States.
These financial statements are the responsibility of the Company's management;
our responsibility is to express an opinion on these financial statements based
on our audit. We conducted our audits of these statements in accordance with
auditing standards generally accepted in the United States which require that we
plan and perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements, assessing the accounting principles used and
significant estimates made by management, and evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for the opinion expressed above.
PricewaterhouseCoopers LLP
San Francisco, California
January 21, 2000, except as to the stock split described in Note 8, as to which
the date is February 17, 2000
43
<PAGE>
SELECTED FINANCIAL DATA
SELECTED ANNUAL DATA
<TABLE>
<CAPTION>
Year Ended December 31, 1999 1998* 1997 1996* 1995
- --------------------------------------------------------------------------------------------------------
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C>
Statement of operations
Net revenues $ 101,560 $ 70,998 $ 48,613 $ 36,744 $ 25,957
Income from operations 21,833 5,912 9,398 591 4,158
Net income (loss) 17,443 4,399 6,713 (1,099) 2,819
Net income (loss) per share data
Diluted
Net income (loss) per share 0.58 0.17 0.28 (0.05) 0.15
Shares used in per share calculation** 30,324 26,110 24,051 21,210 18,480
Basic
Net income (loss) per share 0.64 0.18 0.30 (0.05) 0.27
Shares used in per share calculation** 27,072 24,198 22,563 21,210 10,365
Balance Sheet
Working capital $ 121,871 $ 38,148 $ 38,836 $ 32,775 $ 31,008
Total assets 191,188 87,210 59,285 46,691 44,750
Long-term liabilities 824 537 537 599 470
Stockholders' equity 160,659 60,175 46,493 37,062 34,584
</TABLE>
SELECTED QUARTERLY DATA
<TABLE>
<CAPTION>
First Second Third Fourth
Quarter Quarter Quarter Quarter
- --------------------------------------------------------------------------------------------------
(in thousands, except per share data)
<S> <C> <C> <C> <C>
1999
Net revenues $ 20,220 $ 24,223 $ 27,020 $ 30,097
Income from operations 2,591 4,846 6,377 8,019
Net income 1,954 3,489 5,024 6,976
Net income per share - Diluted 0.07 0.12 0.16 0.21
Net income per share - Basic 0.08 0.14 0.17 0.24
1998*
Net revenues $ 14,049 $ 16,706 $ 18,604 $ 21,638
Income (loss) from operations 1,622 (2,155) 4,288 2,159
Net income (loss) 1,258 (1,582) 3,062 1,662
Net income (loss) per share - Diluted 0.05 (0.07) 0.12 0.06
Net income (loss) per share - Basic 0.05 (0.07) 0.13 0.07
</TABLE>
* In 1998 and 1996, we recognized charges of $8.4 million and $5.6 million,
respectively, in connection with the write-off of purchased research and
development and other expenses. Excluding these charges, net income per share -
diluted would have been $0.39 and $0.19 in 1998 and 1996, respectively. For
further explanation, see "Purchased
44
<PAGE>
Research and Development and Other" in Management's Discussion and Analysis of
Financial Condition and Results of Operations.
** For an explanation of shares used in per share calculations, see Note 1 and
Note 7 of the Notes to Consolidated Financial Statements.
PRICE RANGE OF COMMON STOCK
NASDAQ National Market Symbol "ADVS" High Low
- --------------------------------------------------------------------------------
Year Ended December 31, 1999
First Quarter $ 18 13/24 $ 13 3/8
Second Quarter 23 1/2 16 3/4
Third Quarter 31 1/8 20 5/6
Fourth Quarter 35 1/16 24 5/8
Year Ended December 31, 1998
First Quarter $ 16 $ 8 3/4
Second Quarter 16 1/24 11 1/6
Third Quarter 17 1/2 10
Fourth Quarter 16 5/24 6 29/48
45
<PAGE>
STOCK INFORMATION
Advent's Common Stock has traded on the Nasdaq National Market under the symbol
ADVS since our initial public offering on November 15, 1995.
We have not paid cash dividends on our Common Stock and presently intend to
continue this policy in order to retain its earnings for the development of our
business.
TRANSFER AGENT & REGISTRAR
EquiServe is the Transfer Agent and Registrar of our Common Stock and maintains
stockholder accounting records. Inquiries regarding lost certificates,
consolidation of accounts, and changes in address, name or ownership should be
addressed to:
EquiServe
Boston EquiServe Division
Shareholder Services
150 Royall Street
Canton, MA 02021
Telephone: (781) 575-3120
Internet: http://www.equiserve.com
46
EXHIBIT 21.1
SUBSIDIARIES OF ADVENT SOFTWARE, INC.
Name State of Incorporation
- ------------------------------ ----------------------
MicroEdge, Inc. New York
Advent Technology, Inc. Delaware
Bold Software, Inc. New York
Advent Australia, Pty., Ltd. Australia
HubData, Inc. Massachusetts
Data Exchange, Inc. Pennsylvania
Rex Development, Inc. Delaware
Second Street Securities, Inc. Delaware
47
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (No.'s 333-79573, 333-79553, 333-56905, 333-39747 and
333-28725) and on Form S-3 (No.'s 333-58659, 333-48513 and 333-39747) of Advent
Software, Inc. of our report dated January 21, 2000, except as to the stock
split described in Note 8, as to which the date is February 17, 2000, relating
to the financial statements, which appear in the Annual Report to Shareholders,
which is incorporated in this Annual Report on Form 10-K. We also consent to the
incorporation by reference of our report dated January 21, except as to the
stock split described in Note 8, as to which the date is February 17, 2000,
relating to the financial statement schedule, which appears in this Form 10-K.
PricewaterhouseCoopers LLP
San Francisco, California
March 9, 2000
48
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 64,315
<SECURITIES> 54,811
<RECEIVABLES> 26,168
<ALLOWANCES> 716
<INVENTORY> 0
<CURRENT-ASSETS> 151,576
<PP&E> 27,907
<DEPRECIATION> 11,246
<TOTAL-ASSETS> 191,188
<CURRENT-LIABILITIES> 29,705
<BONDS> 0
0
0
<COMMON> 292
<OTHER-SE> 160,367
<TOTAL-LIABILITY-AND-EQUITY> 191,188
<SALES> 49,270
<TOTAL-REVENUES> 101,560
<CGS> 3,602
<TOTAL-COSTS> 19,325
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 26,429
<INCOME-TAX> 8,986
<INCOME-CONTINUING> 17,443
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 17,443
<EPS-BASIC> 0.64
<EPS-DILUTED> 0.58
</TABLE>
