<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM 10-Q
[X] Quarterly report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended SEPTEMBER 30, 1999
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from to
-------- --------
Commission file number: 0-20941
PRECISION RESPONSE CORPORATION
(Exact name of Registrant as specified in its charter)
FLORIDA 59-2194806
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1505 N.W. 167TH STREET, MIAMI, FLORIDA 33169
(Address of principal executive offices) (Zip code)
(305) 816-4600
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES [X] NO [ ]
ON NOVEMBER 1, 1999, THE REGISTRANT HAD 21,633,533 OUTSTANDING SHARES
OF COMMON STOCK, $0.01 PAR VALUE.
<PAGE> 2
PRECISION RESPONSE CORPORATION AND SUBSIDIARIES
INDEX
<TABLE>
<CAPTION>
PART I.
ITEM NO. PAGE(S)
<S> <C>
1. FINANCIAL STATEMENTS
Consolidated Balance Sheets (Unaudited)-
September 30, 1999 and December 31, 1998............................................ 3
Consolidated Statements of Operations (Unaudited) -
Three and Nine months ended September 30, 1999 and 1998............................. 4
Consolidated Statements of Cash Flows (Unaudited) -
Nine months ended September 30, 1999 and 1998....................................... 5
Notes to Consolidated Financial Statements............................................... 6-10
2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS.............................................................. 11-22
3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK .............................. 22
PART II.
1. LEGAL PROCEEDINGS........................................................................ 23
2. CHANGES IN SECURITIES AND USE OF PROCEEDS................................................ 23
6. EXHIBITS AND REPORTS ON FORM 8-K......................................................... 24
SIGNATURES............................................................................... 25
</TABLE>
2
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
PRECISION RESPONSE CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1999 1998
-------------- --------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents............................................ $ 2,431 $ 1,656
Accounts receivable, net of allowances of $1,712 and $8,225,
respectively...................................................... 42,088 42,771
Income taxes receivable.............................................. 200 215
Deferred income taxes................................................ 4,568 6,906
Prepaid expenses and other current assets............................ 3,974 4,186
-------------- --------------
Total current assets......................................... 53,261 55,734
Property and equipment, net.............................................. 79,717 71,414
Deferred income taxes.................................................... 4,416 5,516
Other assets............................................................. 2,417 782
-------------- --------------
Total assets................................................. $ 139,811 $ 133,446
============== ==============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current maturities of long-term obligations.......................... $ 1,972 $ 2,510
Accounts payable..................................................... 11,128 16,571
Restructuring accrual................................................ 1,638 3,244
Accrued compensation expenses........................................ 6,708 3,108
Other accrued expenses............................................... 7,956 7,174
Customer deposits.................................................... 1,288 1,108
-------------- --------------
Total current liabilities.................................... 30,690 33,715
Long-term obligations, less current maturities........................... 21,202 16,916
Restructuring accrual.................................................... 2,372 3,456
-------------- --------------
Total liabilities............................................ 54,264 54,087
-------------- --------------
Commitments and contingencies -- --
Shareholders' equity:
Common stock, $0.01 par value; 100,000,000 shares authorized;
21,633,533 and 21,549,000 issued and outstanding, respectively... 216 215
Additional paid-in capital........................................... 98,277 97,179
Accumulated deficit.................................................. (12,709) (18,035)
Unearned compensation................................................ (237) --
-------------- --------------
Total shareholders' equity................................... 85,547 79,359
-------------- --------------
Total liabilities and shareholders' equity................... $ 139,811 $ 133,446
============== ==============
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
3
<PAGE> 4
PRECISION RESPONSE CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE NINE MONTHS
ENDED SEPTEMBER 30, ENDED SEPTEMBER 30,
------------------------- -------------------------
1999 1998 1999 1998
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
REVENUES.................................................. $ 57,006 $ 44,978 $ 153,344 $ 128,892
--------- --------- --------- ---------
OPERATING EXPENSES:
Cost of services ...................................... 46,575 40,541 126,941 114,273
Selling, general and administrative
expenses ........................................... 6,148 10,734 16,689 18,484
Restructuring and asset impairment
charges ............................................. -- 13,583 -- 13,583
--------- --------- --------- ---------
Total operating expenses ...................... 52,723 64,858 143,630 146,340
--------- --------- --------- ---------
Operating income (loss) ....................... 4,283 (19,880) 9,714 (17,448)
OTHER INCOME (EXPENSE):
Interest income ....................................... 1 44 46 196
Interest expense ...................................... (295) (348) (797) (994)
--------- --------- --------- ---------
INCOME (LOSS) BEFORE INCOME TAX
PROVISION (BENEFIT) ....................... 3,989 (20,184) 8,963 (18,246)
Income tax provision (benefit) ............................ 1,597 (7,580) 3,637 (6,844)
--------- --------- --------- ---------
NET INCOME (LOSS) ............................. $ 2,392 $ (12,604) $ 5,326 $ (11,402)
========= ========= ========= =========
NET INCOME (LOSS) PER COMMON SHARE:
Basic ................................................. $ 0.11 $ (0.58) $ 0.25 $ (0.53)
========= ========= ========= =========
Diluted ............................................... $ 0.11 $ (0.58) $ 0.25 $ (0.53)
========= ========= ========= =========
WEIGHTED AVERAGE NUMBER OF COMMON
SHARES OUTSTANDING:
Basic ................................................. 21,565 21,549 21,554 21,548
========= ========= ========= =========
Diluted ............................................... 22,424 21,556 21,729 21,616
========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
4
<PAGE> 5
PRECISION RESPONSE CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE NINE MONTHS ENDED
SEPTEMBER 30,
-------------------------------
1999 1998
------------ ------------
<S> <C> <C>
Operating activities:
Net income (loss) ............................................. $ 5,326 $ (11,402)
Adjustments to reconcile net income (loss) to net cash provided
by (used in) operating activities:
Depreciation and amortization ............................. 10,933 9,702
Provision for bad debts and sales allowances .............. 1,478 6,720
Amortization of unearned compensation ..................... 45 108
Restructuring and asset impairment charges ................ -- 11,850
Deferred income taxes ..................................... 3,621 (6,943)
Changes in operating assets and liabilities:
Accounts receivable ....................................... (795) (20,188)
Income taxes receivable ................................... 15 6,755
Prepaid expenses and other current assets ................. 212 1,050
Other assets .............................................. (97) (682)
Accounts payable .......................................... (5,443) (4,748)
Restructuring accrual ..................................... (2,690) 5,249
Accrued compensation expenses ............................. 3,600 (496)
Other accrued expenses .................................... 782 3,672
Customer deposits ......................................... 180 (2,659)
------------ ------------
Net cash provided by (used in) operating activities ... 17,167 (2,012)
------------ ------------
Investing activities:
Purchases of property and equipment ........................... (19,236) (14,100)
Investment in unconsolidated affiliate ........................ (1,538) --
------------ ------------
Net cash used in investing activities ................. (20,774) (14,100)
------------ ------------
Financing activities:
Net proceeds from revolving credit facility ................... 5,500 8,300
Proceeds from long-term obligations ........................... -- 4,000
Payments on long-term obligations ............................. (1,752) (1,995)
Proceeds from exercise of stock options ....................... 634 --
------------ ------------
Net cash provided by financing activities ............. 4,382 10,305
------------ ------------
Net increase (decrease) in cash and cash equivalents .............. 775 (5,807)
Cash and cash equivalents at beginning of period .................. 1,656 11,080
------------ ------------
Cash and cash equivalents at end of period ........................ $ 2,431 $ 5,273
============ ============
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
5
<PAGE> 6
PRECISION RESPONSE CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. OPERATIONS AND BASIS OF PRESENTATION
Precision Response Corporation and subsidiaries (the "Company") is a
full-service provider of outsourced customer care, utilizing a fully-integrated
mix of traditional call center and e-commerce customer care solutions and
services, to large corporations, predominantly those within the Fortune 1000,
and high-growth Internet-focused companies. Through the integration of its
teleservicing, e-commerce customer care services, database marketing and
management, and fulfillment capabilities, the Company is able to offer a total
customer relationship solution to meet its clients' needs.
The accompanying unaudited consolidated financial statements were
prepared in accordance with generally accepted accounting principles for interim
financial information and the rules and regulations of the Securities and
Exchange Commission (the "SEC"). The unaudited consolidated interim financial
information reflects all normal recurring adjustments, which are, in the opinion
of management, necessary for a fair presentation of the interim unaudited
consolidated financial statements. The balance sheet at December 31, 1998
included herein has been derived from the audited financial statements at that
date but does not include all of the information and footnotes required by
generally accepted accounting principles for complete financial statements.
These interim results of operations for the three and nine months ended
September 30, 1999 and 1998 are not necessarily indicative of results that may
be expected for the full fiscal years. The unaudited consolidated financial
statements contained herein should be read in conjunction with the audited
financial statements and notes thereto contained in the Company's annual report
on Form 10-K for the fiscal year ended December 31, 1998 filed with the SEC on
March 31, 1999 (the "1998 Form 10-K").
2. EARNINGS PER SHARE
The following reconciles the numerators and denominators of the basic
and diluted earnings per share ("EPS") computations (in thousands, except per
share data):
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED SEPTEMBER 30,
-------------------------------------------------------------
1999 1998
----------------------------- -------------------------------
NET NET
INCOME PER INCOME PER
(LOSS) SHARES SHARE (LOSS) SHARES SHARE
------- ------- -------- --------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS:
Income (loss) available to common shareholders $ 2,392 21,565 $ 0.11 $ (12,604) 21,549 $ (0.58)
EFFECT OF DILUTIVE SECURITIES:
Stock options ................................ -- 859 -- -- 7 --
------- ------- -------- --------- ------- --------
DILUTED EPS:
Income (loss) available to common shareholders
and assumed exercises .................... $ 2,392 22,424 $ 0.11 $ (12,604) 21,556 $ (0.58)
======= ======= ======== ========= ======= ========
</TABLE>
6
<PAGE> 7
<TABLE>
<CAPTION>
FOR THE NINE MONTHS ENDED SEPTEMBER 30,
-------------------------------------------------------------
1999 1998
----------------------------- -------------------------------
NET NET
INCOME PER INCOME PER
(LOSS) SHARES SHARE (LOSS) SHARES SHARE
------- ------- -------- --------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS:
Income (loss) available to common shareholders $ 5,326 21,554 $ 0.25 $ (11,402) 21,548 $ (0.53)
EFFECT OF DILUTIVE SECURITIES:
Stock options ................................ -- 175 -- -- 68 --
------- ------- -------- --------- ------- --------
DILUTED EPS:
Income (loss) available to common shareholders
and assumed exercises .................... $ 5,326 21,729 $ 0.25 $ (11,402) 21,616 $ (0.53)
======= ======= ======== ========= ======= ========
</TABLE>
3. INVESTMENT IN UNCONSOLIDATED AFFILIATE
On June 15, 1999, the Company acquired 6,000,000 shares of common stock
of Global Reservation Systems, Inc. ("GRS"), currently representing an
approximate 15% ownership interest on a fully-diluted basis, for an aggregate
purchase price of $1.5 million. GRS, a California corporation, specializes in
developing Internet-based travel products and service systems. This equity
investment in GRS has been accounted for using the cost method and is included
in Other assets in the accompanying Consolidated Balance Sheet as of September
30, 1999.
In conjunction with this transaction, the Company also was issued a
warrant to purchase an aggregate of 3,000,000 shares of GRS common stock at an
exercise price equivalent to the lesser of (i) the lowest per share price of any
sales or issuances of GRS common stock (other than the sales or issuances
related to outstanding GRS options to purchase 6,065,391 shares or an additional
2,900,000 shares reserved by GRS for future issuances of options) that take
place up to the time of exercise or (ii) $0.85 per share. The exercise price
and/or number of shares issuable upon exercising the warrant will be
proportionately adjusted if effected after any future stock dividends, stock
splits, combinations of stocks or issuance of stock in a reclassification. The
right to exercise the warrant, in whole or in part, expires on June 15, 2002. In
addition, the Company's decision to exercise this warrant currently would
require the consent of the lender on its revolving credit facility and existing
mortgage loan (see Note 6 herein below).
4. PROPERTY AND EQUIPMENT
Property and equipment is comprised of both owned property and property
under capital leases, the details of which are set forth below (in thousands):
7
<PAGE> 8
PRECISION RESPONSE CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999 DECEMBER 31, 1998
----------------------------------- -----------------------------------
OWNED LEASED TOTAL OWNED LEASED TOTAL
--------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Land ............................ $ 1,057 -- $ 1,057 $ 1,057 -- $ 1,057
Buildings and improvements ...... 5,124 -- 5,124 4,878 -- 4,878
Telecommunications
equipment and software ......... 23,050 $ 4,432 27,482 20,946 $ 4,432 25,378
Computer equipment and software . 48,345 5,523 53,868 33,768 5,523 39,291
Leasehold improvements .......... 11,365 -- 11,365 11,167 -- 11,167
Furniture and fixtures .......... 8,416 242 8,658 8,044 242 8,286
Vehicles ........................ 111 -- 111 111 -- 111
--------- --------- --------- --------- --------- ---------
97,468 10,197 107,665 79,971 10,197 90,168
Development in process .......... 13,147 -- 13,147 11,408 -- 11,408
--------- --------- --------- --------- --------- ---------
110,615 10,197 120,812 91,379 10,197 101,576
Less: accumulated depreciation
and amortization ............... (35,527) (5,568) (41,095) (25,943) (4,219) (30,162)
--------- --------- --------- --------- --------- ---------
$ 75,088 $ 4,629 $ 79,717 $ 65,436 $ 5,978 $ 71,414
========= ========= ========= ========= ========= =========
</TABLE>
Included within Computer equipment and software in the above table are
approximately $10.0 million related to system modules, which are associated with
the Company's initiative to implement an Enterprise Resource Planning solution
(which the Company designated the PRISM Project), that were operational as of
September 30, 1999, as well as $1.1 million of software developed for internal
purposes that was available for use as of September 30, 1999. Additionally, as
of September 30, 1999, $7.6 million related to the purchase and integration of
certain teleservices software (IMA Advantage/Edge) not yet certified for client
use and $2.7 million related to the PRISM Project modules not yet operational
are included within Development in process in the above table.
The Company capitalizes interest costs that are incurred as a result of
borrowings under the Company's revolving credit facility used to partially fund
the Company's PRISM Project and the development of internal use software. Total
interest cost incurred during the three and nine months ended September 30, 1999
was $465,000 and $1.3 million, respectively, of which $170,000 and $535,000 was
capitalized as of the three and nine months ended September 30, 1999,
respectively. As internal use software is available for use and as each module
of the PRISM Project is operational, all associated capitalized costs are
amortized on a straight-line basis over the software's or module's estimated
useful life.
5. RESTRUCTURING AND OTHER NON-RECURRING SPECIAL CHARGES
During the third quarter of 1998, the Company performed an extensive
review of its operations and existing available workstation capacity. As a
result of this review, the Company initiated a restructuring and performance
enhancing initiatives plan, which centered on exiting an incentive-based
outbound teleservicing program, making adjustments to certain call centers'
workstation capacity, reducing overhead and administrative headcount and
replacing certain existing software programs utilized in its call center
operations with new customer interaction software reflective of advances in
customer care technology. In adopting this plan, the Company recorded
non-recurring restructuring and other special charges of approximately $22.1
million in the third quarter of 1998 with an after-tax impact of $13.8 million.
Of the total non-recurring restructuring and other special charges accrued in
connection with the 1998 plan, at September 30, 1999, approximately $3.9 million
is included in Restructuring accrual and $764,000 relating to other special
charges is included in Other accrued expenses in the accompanying Consolidated
Balance Sheets.
8
<PAGE> 9
PRECISION RESPONSE CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
During the fourth quarter of 1998, the Company's exit of the
incentive-based outbound teleservices program was completed and during the first
quarter of 1999, the Company completed its termination of certain designated
employees. As of September 30, 1999, the Company had relocated substantially all
of the teleservicing programs from one call center and continued to reconfigure
the workstation capacity in another call center to facilitate operating it at a
reduced workstation count indicative of the surrounding labor market conditions.
Additionally, the Company continued its efforts relative to the implementation
of new customer interaction software reflective of advances in customer care
technology. These remaining initiatives are currently expected to be completed
during the fourth quarter of 1999.
The following table sets forth the details and the cumulative activity
in the restructuring accrual during the nine months ended September 30, 1999 (in
thousands):
<TABLE>
<CAPTION>
ACCRUAL ACCRUAL
BALANCE AT BALANCE AT
DECEMBER 31, SEPTEMBER 30,
1998 EXPENDITURES 1999
------------ ------------ ------------
<S> <C> <C> <C>
Severance and other employee costs ........ $ 697 $ (697) --
Closure and consolidation of facilities and
related exit costs ...................... 6,003 (1,993) $ 4,010
---------- ---------- ------------
Total restructuring accrual ........... 6,700 $ (2,690) 4,010
==========
Less: current portion ................. (3,244) (1,638)
---------- ------------
Total restructuring accrual, long-term $ 3,456 $ 2,372
========== ============
</TABLE>
6. CREDIT FACILITY AND LONG-TERM DEBT
On March 2, 1998, the Company entered into a three-year, $25.0 million
revolving credit facility, replacing its then existing $15.0 million revolving
credit facility. Effective June 30, 1999, the $25.0 million revolving credit
facility was amended (the "Credit Facility") to increase the amount available
under the Credit Facility to $35.0 million through January 31, 2000, subject to
certain limitations as described below. Effective as of February 1, 2000, the
amount available under the Credit Facility reverts back to $25.0 million.
The Credit Facility is collateralized by all of the Company's owned and
hereafter acquired assets. The Company may borrow up to 80% of eligible accounts
receivable. The Credit Facility accrues interest at the Company's option at (i)
the greater of the prime rate or the Federal funds rate plus 0.50% or (ii) the
LIBOR rate plus a specified percentage (1.25% to 1.75%) based upon the ratio of
funded debt to earnings before interest, taxes, depreciation and amortization
("EBITDA"). The Company pays a fee of between 0.1875% and 0.25% per annum on
unused commitments under the Credit Facility based upon the ratio of funded debt
to EBITDA, of which the rate was 0.1875% per annum at September 30, 1999. The
Company is required, under the terms of the Credit Facility, to maintain certain
financial covenants and ratios, including minimum tangible net worth and funded
debt to EBITDA and funded debt to capitalization ratios, to limit capital
expenditures and additional indebtedness and is restricted, among other things,
with respect to the declaration and payment of dividends, redemptions,
investments and acquisitions. At September 30, 1999, the outstanding balance of
the Credit Facility was $16.5 million ($6.5 million at 8.25% per annum, $5.2
million at 6.54% per annum, $2.5 million at 6.56% per annum and $2.3 million at
6.51% per annum) and is included in Long-term obligations, less current
maturities in the accompanying Consolidated Balance Sheets. At September 30,
1999, the available balance under the terms of the Credit Facility was $16.1
million.
9
<PAGE> 10
PRECISION RESPONSE CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The Company also has secured a mortgage, as amended effective June 30,
1999, with the lender on its Credit Facility in connection with the acquisition
of a property (land and existing building) located in Sunrise, Florida. The
mortgage loan is for $5.1 million, of which $4.0 million was advanced at closing
in 1998. The remaining $1.1 million available under the loan is subject to the
Company's completion of future interior improvements to the property by January
31, 2000. The amended mortgage note accrues interest payable quarterly at the
LIBOR rate plus 1.50% per annum, of which the interest rate was 6.90% per annum
at September 30, 1999. Principal payments are due quarterly, commencing on
January 31, 2000, based upon a 20-year amortization schedule, with a balloon
payment due at maturity on June 1, 2005. The amended mortgage loan is
cross-defaulted with and has terms substantially similar to the Credit Facility.
7. LEASE COMMITMENTS
On July 20, 1999, the Company executed a ten-year lease agreement with
Crossroads Business Park Associates (the "Landlord"), which includes options to
extend the initial term of the lease for an additional 15 years. The premises,
located in Plantation, Florida, will be the site of the Company's new principal
corporate offices, as the lease for the Company's existing principal corporate
offices expires in April 2000. Certain terms of the new lease were amended on
October 29, 1999, to provide for additional administrative space. The monthly
base rent, as amended, payable commencing on the earlier of (i) the fifteenth
business day immediately following the date that a certificate of occupancy or
its equivalent is issued permitting the Company to occupy the premises or (ii)
March 15, 2000, will initially be $54,775 per month, subject to 3% annual
increases. The Company will also pay its proportionate share of customary
operating expenses of the office building in which the Company's premises are
located. Pursuant to the lease agreement, as amended, the Landlord will pay the
Company an improvement allowance in the amount of $1.8 million. The Company has
delivered a letter of credit in the amount of $750,000 to the Landlord as
security for the performance of the Company's obligations under the lease
agreement. The amount of such letter of credit will decrease annually by
$150,000.
8. CONTINGENCIES
On or about August 26, 1998 a lawsuit was filed in Connecticut,
captioned HENRY E. FREEMAN AND FREEMAN INDUSTRIAL ENTERPRISES CORPORATION v.
PRECISION RESPONSE CORPORATION, MARK J. GORDON AND DAVID L. EPSTEIN (Case No.
3:98-CV-1895-AVC (D. Conn.)). It is currently pending in the United States
District Court for the District of Connecticut. This lawsuit alleges that the
Company breached its contracts with the plaintiffs by allegedly failing to pay
all commissions relating to certain clients whom the plaintiffs allegedly claim
they procured for the Company. The Amended Complaint also contains claims of
breach of fiduciary duty, breach of covenant of good faith and fair dealing,
civil conspiracy, fraud/fraud in the inducement, intentional infliction of
emotional distress, negligent misrepresentation and violations of the
Connecticut Unfair Trade Practices Act. The plaintiffs seek actual, compensatory
and punitive damages, declaratory judgement that certain contracts are invalid
due to undue influence exercised upon plaintiffs, recission of such contracts,
an accounting and interest, costs and attorneys' fees. The Company has filed a
motion to dismiss the Amended Complaint for failure to state a cause of action,
which is currently pending before the Court.
The case is currently in the discovery stage. The Company believes that
the plaintiffs' allegations are totally without merit and intends to defend the
lawsuit vigorously. A provision for legal defense costs has been accrued and is
included in Other accrued expenses in the accompanying Consolidated Balance
Sheets which management believes is adequate based on available information. No
other provisions have been reflected since management is unable, at this time,
to predict the ultimate outcome of this matter.
10
<PAGE> 11
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion of the financial condition and results of
operations of the Company should be read in conjunction with the Consolidated
Financial Statements and notes thereto included elsewhere in this report.
OVERVIEW AND BASIS OF PRESENTATION
The Company is a full-service provider of outsourced customer care,
utilizing a fully-integrated mix of traditional call center and e-commerce
customer care solutions and services to large corporations, predominantly those
within the Fortune 1000, and high-growth Internet-focused companies. Through the
integration of its teleservicing, e-commerce customer care services, database
marketing and management, and fulfillment capabilities, the Company is able to
offer a total customer relationship solution to meet its clients' needs.
The Company's primary source of revenue is teleservicing activities
which are comprised of both inbound (customer-initiated) and outbound calls. The
majority of teleservicing revenues are derived from inbound calls, which
represented approximately 95% of teleservicing revenues and 84% of total
revenues for the three months ended September 30, 1999 as compared to
approximately 89% of teleservicing revenues and 75% of total revenues for the
three months ended September 30, 1998. For the nine months ended September 30,
1999, teleservicing revenues derived from inbound calls represented
approximately 93% of teleservicing revenues and 82% of total revenues as
compared to approximately 84% of teleservicing revenues and 64% of total
revenues for the same period of the prior year. Inbound teleservicing consists
mostly of longer-term customer care and customer service programs that tend to
be more predictable than other teleservicing revenues. Outbound teleservicing is
driven by marketing programs which change frequently relative to inbound
programs. As such, outbound teleservicing is subject to greater variation in
operating results (see "Fluctuations in Quarterly Results" below).
Commencing in 1998 and during the nine months ended September 30, 1999,
the Company began strategic initiatives to capitalize on the extraordinary
growth of Internet commerce by integrating Internet technologies with the
Company's current products and services to, in effect, create multimedia
customer interaction centers. In the first three quarters of 1999, the Company
continued to make advances in the development and marketing of the
Internet-based and e-commerce services offered by PRCNETCARE.COM(SM), its
Internet-based customer service subsidiary. PRCNETCARE.COM is dedicated to
developing and providing a total customer care solution for companies conducting
business over the Internet. During the three months ended September 30, 1999,
its third quarter of operation, PRCNETCARE.COM generated revenues of
approximately $2.0 million primarily from InfiniteAccess, the subsidiary's
principal Internet-based customer care offering. During the nine months ended
September 30, 1999, PRCNETCARE.COM generated revenues of approximately $3.5
million.
PRCNETCARE.COM offers clients its InfiniteAccess suite of products and
services. These products and services enable the Company to integrate clients'
Internet-based customer care and e-commerce activities with the Company's
existing teleservices, database marketing and management, and fulfillment
services. InfiniteAccess's current base of offerings includes: PRC SmartMail, an
automated electronic messaging response service; PRC Web On-Line, a Web
collaborative service enabling the Company's customer care associates to
interact with clients' customers live over the telephone and the Internet; PRC
Internet Fulfillment Service, an e-mail and Web-based fulfillment process that
supports e-commerce transactions; and PRC Host, a Web application hosting and
information service that enables clients to
11
<PAGE> 12
conduct e-commerce activities while limiting their technology investments. The
Company is currently committed to investing in and expanding its Internet-based
and e-commerce services and continues to make strategic infrastructure and
software investments as it seeks to leverage its existing technological
capabilities into a leading position in the emerging market for interactive
customer care services.
The Company offers a wide variety of information services including
formulating, designing and customizing teleservicing and electronic
applications, programming, and demographic and psychographic profiling. The
Company employs information technology specialists who design, develop and
manage applications for each client's unique customer service and marketing
programs.
Fulfillment services include high-speed laser and electronic document
printing, lettershop and mechanical inserting, sorting, packaging and mailing
capabilities. While fulfillment services represents a relatively small portion
of the Company's total revenues, it is an important element in the Company's
overall marketing strategy of providing its customers with a "one-stop" solution
to their telephone-based and interactive customer service and marketing needs.
RESULTS OF OPERATIONS
The following table sets forth certain statements of operations data,
as a percentage of revenues, for the periods indicated (and includes the impact
of restructuring and non-recurring special charges during the three and nine
months ended September 30, 1998 as discussed below):
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE NINE MONTHS
ENDED SEPTEMBER 30, ENDED SEPTEMBER 30,
--------------------------- --------------------------
1999 1998 1999 1998
----------- ------------ ----------- -----------
<S> <C> <C> <C> <C>
SELECTED OPERATING RESULTS:
Revenues.......................................... 100.0% 100.0% 100.0% 100.0%
Cost of services.................................. 81.7 90.1 82.8 88.7
----------- ------------ ----------- -----------
Gross margin.............................. 18.3 9.9 17.2 11.3
Selling, general and administrative expenses...... 10.8 23.9 10.9 14.3
Restructuring and asset impairment charges........ -- 30.2 -- 10.5
----------- ------------ ----------- -----------
Operating income (loss)................... 7.5% (44.2)% 6.3% (13.5)%
=========== ============ =========== ===========
</TABLE>
During the third quarter of 1998, the Company performed an extensive
review of its operations and existing available workstation capacity. As a
result of this review, the Company initiated a restructuring and performance
enhancing initiatives plan, which centered on exiting an incentive-based
outbound teleservicing program, consolidating and making adjustments to certain
call centers' workstation capacity, reducing overhead and administrative
headcount and replacing certain existing software programs utilized in its call
center operations with new customer interaction software reflective of advances
in customer care technology. In adopting this plan, the Company recorded
non-recurring restructuring and other special charges of approximately $22.1
million in the third quarter of 1998 with an after-tax impact of $13.8 million.
The charges to earnings are included in the following categories in the
accompanying Consolidated Statements of Operations for the three and nine months
ended September 30, 1998:
12
<PAGE> 13
<TABLE>
<CAPTION>
AFTER-TAX PER
PRE-TAX DOLLAR SHARE
AMOUNT (DILUTED)
(IN MILLIONS) AMOUNT
------------------- ----------------
<S> <C> <C>
Restructuring and asset impairment
charges.............................. $ 13.6 $ (0.39)
Cost of services........................ 2.3 (0.07)
Selling, general and administrative
expenses............................. 6.2 (0.18)
------------------- ----------------
Total........................... $ 22.1 $ (0.64)
=================== ================
</TABLE>
REVENUES
Revenues for the three and nine months ended September 30, 1999 were
$57.0 million and $153.3 million, respectively, an increase of $12.0 million, or
26.7%, and $24.4 million, or 19.0%, over the comparable periods in the prior
year. The principal components of revenues are teleservicing activities
(representing 89.1% and 88.8% of revenues for the three and nine months ended
September 30, 1999, respectively, and 84.3% and 77.3% of revenues for the three
and nine months ended September 30, 1998, respectively), information services
(representing 8.1% and 8.2% of revenues for the three and nine months ended
September 30, 1999, respectively, and 7.7% and 9.3% of revenues for the three
and nine months ended September 30, 1998, respectively) and fulfillment services
(representing 2.8% and 3.0% of revenues for the three and nine months ended
September 30, 1999, respectively, and 8.0% and 13.4% of revenues for the three
and nine months ended September 30, 1998, respectively).
The Company had seven call centers and approximately 4,550 workstations
in operation as of September 30, 1999, and eight call centers and approximately
4,500 workstations in operation as of September 30, 1998. In connection with its
1998 restructuring and performance-enhancing initiatives plan, the Company, as
of September 30, 1999, had substantially relocated all of the teleservicing
programs from one call center and continued to reconfigure the workstation
capacity in another center. This relocation and elimination was offset by the
expansion of workstations and capacity in existing call centers. The Company is
continuing to expand workstation capacity in its existing sites to meet current
capacity needs. However, should the Company experience continued growth beyond
that which can be serviced from existing sites, additional workstation capacity
would be necessary. If such circumstance arises, the Company would open an
additional center, most likely in the facility it currently owns in Sunrise,
Florida. As of September 30, 1999, the Company's workstation utilization rate
was approximately 88%. The Company continues to attempt to seek the award of
additional work from existing clients and pursue new client opportunities in
order to improve the utilization of its workstations.
Teleservicing activities accounted for the majority of the revenue
growth during both the three and nine months ended September 30, 1999. Revenues
from teleservicing activities for the three and nine months ended September 30,
1999 were $50.8 million and $136.1 million, respectively, an increase of $12.9
million, or 34.1%, and $36.5 million, or 36.7%, over the comparable periods in
the prior year. Major factors contributing to the increase in teleservicing
revenues were the addition of several new programs for existing clients as well
as the addition of new clients. Revenues from the Company's largest client
accounted for 41.1% and 43.5% of total revenues for the three and nine months
ended September 30, 1999, compared to 51.2% and 44.7% for the three and nine
months ended September 30, 1998. Besides the Company's largest client, no other
client accounted for 10% or more of total revenues for the three or nine months
ended September 30, 1999. Generally, teleservicing revenues are earned on a
rate-
13
<PAGE> 14
per-hour basis. However, during the three and nine months ended September 30,
1998, approximately 3.8% and 14.2% of total revenues were earned under
incentive-based compensation agreements, respectively. At the end of the third
quarter of 1998 the Company made a strategic decision to exit the
incentive-based outbound teleservices program and ceased earning revenues under
incentive-based compensation agreements during the fourth quarter of 1998.
Revenues from information services for the three and nine months ended
September 30, 1999 were $4.6 million and $12.6 million, respectively, an
increase of $1.1 million, or 32.3%, and $0.6 million, or 4.9%, compared to the
same periods of the prior year. These increases were primarily attributable to
information services provided as a result of the addition of new clients and
growth in the Company's relationships with existing clients. The increase for
the nine months ended September 30, 1999 was offset by information services
provided to a certain client during the second quarter of 1998 compared to no
such services provided to this client for the comparable period of 1999.
Revenues from Internet-based customer care services for the three and
nine months ended September 30, 1999, in connection with PRCNETCARE.COM'S third
quarter of operations, were approximately $2.0 million and $3.5 million,
respectively, and are included in revenues from teleservicing and information
services noted above. PRCNETCARE.COM continues to develop client relationships
with existing PRC clients, as well as new Internet-focused companies, including
one of the nations largest Internet e-commerce companies.
Revenues from fulfillment services for the three and nine months ended
September 30, 1999 were $1.6 million and $4.6 million, respectively, a decrease
of $2.0 million, or 56.0%, and $12.7 million, or 73.1%, compared to the same
period of the prior year. Revenues from fulfillment services for both the three
and nine months ended September 30, 1998 included fulfillment services provided
in connection with the incentive-based outbound teleservices program. As
described above, the Company exited the incentive-based outbound teleservices
program in the fourth quarter of 1998. This program included several fulfillment
services.
COST OF SERVICES
Cost of services generally include all direct and some indirect costs
incurred in connection with the Company's revenue-producing departments,
including, but not limited to, labor, telephone expenses directly related to
revenue-generating activities, equipment under operating leases used in the call
centers and fulfillment facility, direct overhead for all such operational
facilities, such as rent, security and insurance, and depreciation and
amortization of property and equipment used in operations. Cost of services for
the three and nine months ended September 30, 1999 were $46.6 million and $126.9
million, respectively. Excluding the impact of the restructuring and
non-recurring special charges during the three and nine months ended September
30, 1998, this represented an increase of $8.4 million, or 22.0%, and $14.9
million, or 13.3%, over the comparable periods in the prior year. The increases
are principally as a result of the growth in operations. In addition, included
in these amounts are the cost of services related to PRCNETCARE.COM, which were
approximately $1.8 million and $3.6 million for the three and nine months ended
September 30, 1999, respectively.
Excluding the impact of restructuring and non-recurring special charges
during the three and nine months ended September 30, 1998, the decrease in cost
of services, as a percentage of revenues, from 84.9% for the three months ended
September 30, 1998 to 81.7% for the three months ended September 30, 1999 and
from 86.8% for the nine months ended September 30, 1998 to 82.8% for the nine
months ended September 30, 1999, was primarily attributable to the Company's
less than satisfactory operating
14
<PAGE> 15
results generated by the incentive-based outbound teleservices program for the
three and nine months ended September 30, 1998, as well as the Company's
continued focus on increasing cost efficiencies and operating leverage during
the three and nine months ended September 30, 1999. As described above, the
Company exited the incentive-based outbound teleservices program in the fourth
quarter of 1998. The decrease is also attributable to the Company's continued
improvement in the utilization of workstation capacity.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative expenses ("SG&A") generally include
the costs of central services the Company provides to support and manage its
operations, including senior management, sales and marketing, human resources,
finance and management information systems functions. SG&A for the three and
nine months ended September 30, 1999 were $6.1 million and $16.7 million,
respectively. Excluding the impact of restructuring and non-recurring special
charges during the three and nine months ended September 30, 1999, this
represented an increase of $1.6 million, or 35.6%, and $4.4 million, or 35.8%,
over the comparable periods in the prior year. A portion of this increase is due
to the Company's continued investment in the development, sales and marketing of
PRCNETCARE.COM, resulting in SG&A of approximately $800,000 and $1.9 million
during the three and nine months ended September 30, 1999, respectively. The
remainder of the increase is principally due to the Company's growth in
operations, the addition of certain management positions during the first half
of 1999 and annual salary increases.
Excluding the impact of restructuring and non-recurring special charges
during the three and nine months ended September 30, 1998, SG&A, as a percentage
of revenues, increased from 10.1% for the three months ended September 30, 1998
to 10.8% for the three months ended September 30, 1999 and from 9.5% for the
nine months ended September 30, 1998 to 10.9% for the nine months ended
September 30, 1999. This increase is principally a result of the development,
sales and marketing of PRCNETCARE.COM, as well as the addition of certain
management positions during the first half of 1999 and annual salary increases.
INTEREST, NET
Interest expense, net of interest income and capitalized interest, was
$294,000 and $751,000 for the three and nine months ended September 30, 1999,
respectively, compared to net interest expense of $304,000 and $798,000 for the
comparable periods of the prior year. The decrease in net interest expense is
due to the capitalization of certain interest costs during the three and nine
months ended September 30, 1999 that were incurred as a result of borrowings
under the Company's revolving credit facility used to partially fund the
Company's PRISM Project and the development of internal use software. (See Note
4 - Property and Equipment of the Notes to Consolidated Financial Statements.)
INCOME TAXES
The Company had a deferred tax asset of $9.0 million at September 30,
1999 and $12.4 million at December 31, 1998. The net deferred tax asset in the
amount of $9.0 million at September 30, 1999 is based upon expected utilization
of net operating loss carryforwards and reversal of certain temporary
differences. Although realization is not assured, the Company believes it is
more likely than not that all of the net deferred tax asset will be realized.
The amount of the deferred tax asset considered realizable, however, could be
reduced in the near term if estimates of future taxable income during the
carryforward period are reduced. The Company will continue to review the
assumptions used on a quarterly basis and make adjustments as appropriate.
15
<PAGE> 16
NET INCOME (LOSS) AND NET INCOME (LOSS) PER SHARE
For the three months ended September 30, 1999, net income was $2.4
million compared to net income of $1.2 million, excluding the impact of
restructuring and non-recurring special charges, for the comparable period of
1998. Net income per common share for the three months ended September 30, 1999
was $0.11 and net income per common share for the three months ended September
30, 1998, excluding the impact of restructuring and non-recurring special
charges, was $0.06. After giving effect to the impact of restructuring and
non-recurring special charges, for the three months ended September 30, 1998,
net loss was $12.6 million and net loss per share for the three months ended
September 30, 1998, was $(0.58).
For the nine months ended September 30, 1999, net income was $5.3
million compared to net income of $2.4 million, excluding the impact of
restructuring and non-recurring special charges, for the comparable period of
1998. Net income per common share for the nine months ended September 30, 1999
was $0.25 and net income per common share for the nine months ended September
30, 1998, excluding the impact of restructuring and non-recurring special
charges, was $0.11. After giving effect to the impact of restructuring and
non-recurring special charges, for the nine months ended September 30, 1998, net
loss was $11.4 million and net loss per share for the three months ended
September 30, 1998, was $(0.53).
LIQUIDITY AND CAPITAL RESOURCES
During the first nine months of 1999, the Company funded its operations
and capital expenditures primarily through cash flows from operations and, to a
lesser extent, bank borrowings. See Note 6 - Credit Facility and Long-Term Debt
of the Notes to Consolidated Financial Statements for discussion of the terms of
the Company's credit facility and mortgage loan.
At September 30, 1999, the Company had cash and cash equivalents of
$2.4 million and total long-term obligations (including current maturities
thereof) of $23.2 million. Net cash provided by operating activities was $17.2
million for the nine months ended September 30, 1999 and net cash used in
operating activities was $2.0 million for the same period in the prior year. The
decrease in cash used in operating activities from the first nine months of 1999
compared to the same period in 1998 was primarily attributable to a
significantly lower change in accounts receivable balances for the nine months
ended September 30, 1999 as compared to the same period in 1998 as a result of
increased collection efforts and improved capacity utilization.
Net cash used in investing activities was $20.8 million and $14.1
million for the nine months ended September 30, 1999 and 1998, respectively.
Investing activities for the nine months ended September 30, 1999 were
principally for capital expenditures as well as a $1.5 million equity investment
in Global Reservation Systems, Inc., a West Coast firm specializing in
Internet-based travel products and service systems, which is described in
further detail in Note 3 - Investment in Unconsolidated Affiliate of the Notes
to Consolidated Financial Statements. All investing activities for the nine
months ended September 30, 1998 were for capital expenditures.
Capital expenditures increased from $14.1 million for the nine months
ended September 30, 1998 to $19.2 million for the same period of the current
year. Capital expenditures for the nine months ended September 30, 1998 were
primarily for the completion of the relocation and consolidation of
administrative office space into unused space in an existing facility, costs
incurred for the Company's
16
<PAGE> 17
internal financial and operating system enhancements (the PRISM Project) and the
purchase of land and a building located in Sunrise, Florida. Capital
expenditures for the nine months ended September 30, 1999 relate primarily to
costs incurred for the expansion of workstations in existing facilities to
accommodate the award of new and existing client programs and the PRISM Project,
PRCNETCARE.COM product and service offerings, and IMA Advantage/Edge, as
discussed below.
During the first quarter of 1998, the Company began its implementation
of an Enterprise Resource Planning ("ERP") solution, which will allow for all
internal systems (including those related to billing, payroll, client
profitability management, human resource management and general ledger) to be
fully integrated into a common platform. The Company has designated its ERP
implementation as the PRISM Project. The PRISM Project is utilizing both
internal resources as well as outside consultants to allow for a quick and
efficient implementation. Full implementation, including software, hardware,
consulting fees, training and internal resources, will cost approximately $13.0
million, of which $12.7 million was spent as of September 30, 1999. As of
September 30, 1999, all modules of the PRISM Project had been implemented, with
the exception of the billing module, which is expected to be placed in service
during the fourth quarter of 1999. See Note 4- Property and Equipment of the
Notes to Consolidated Financial Statements.
In connection with PRCNETCARE.COM, the Company expects through the
middle of 2000 to continue its investment in developing and enhancing software
products and technology infrastructure to accommodate Internet-based interactive
customer communications. In addition, the Company is in the process of
implementing IMA Advantage/Edge, a third-party customer interaction software
product that utilizes advanced customer care technology. The full implementation
of IMA Advantage/Edge is currently expected to cost approximately $9.0 million,
of which $7.6 million was spent as of September 30, 1999, and will take place
during the fourth quarter of 1999. See Note 4- Property and Equipment of the
Notes to Consolidated Financial Statements.
Net cash provided by financing activities was $4.4 million and $10.3
million for the nine months ended September 30, 1999 and 1998, respectively.
Financing activities for the first nine months of 1999 and 1998 are principally
comprised of net borrowings under the Company's revolving credit facility. In
addition, during the nine months ended September 30, 1998, included in net cash
provided by financing activities are the proceeds from the mortgage loan for the
land and building located in Sunrise, Florida.
The Company believes that funds generated from operations, available
borrowings under the revolving credit facility and capital lease financings will
be sufficient to finance its planned capital expenditures for the next twelve
months. The Company's long-term capital requirements will depend on many
factors, including, but not limited to, the rate at which the Company expands
its business and the level of future capital expenditures required to develop
and/or enhance software products and technology infrastructure to accommodate
Internet-based interactive customer communications. To the extent that the funds
generated from the sources described above are insufficient to fund the
Company's activities in the short or long-term, the Company would need to raise
additional funds through public or private financings. No assurance can be given
that additional financing will be available or that, if available, it will be on
terms favorable to the Company.
17
<PAGE> 18
YEAR 2000 ISSUE
The Year 2000 issue affects the Company's installed computer systems,
network elements, software applications and other business systems that have
time-sensitive programs, including those with embedded microprocessors, that may
not properly reflect or recognize the year 2000 and years thereafter. Because
many computers and computer applications define dates by the last two digits of
the year, "00" or other two-digit dates after the year 2000 may not be properly
identified as the year 2000 or the appropriate later year, but rather the year
1900 or a year between 1901 and 1999 (as the case may be). This error could
result in system and equipment failures or malfunctions causing disruption of
operations, including, among others, a temporary inability to process calls,
transactions and information, or engage in similar normal business activities.
The Company has evaluated its installed computer systems, network
elements, software applications and other business systems that have
time-sensitive programs and has developed a plan to ensure their Year 2000
compliance. The Company has established a Year 2000 Compliance Team that meets
generally on a weekly basis to monitor the progress and status of the Company's
Year 2000 plan. The Company's Year 2000 plan is divided into seven major
sections: Internal Systems and Equipment (business applications for accounting,
administration, human resources and other Company-wide applications and office
equipment, including non-information technology infrastructure in which
non-compliant software or embedded microprocessors might exist); Hardware
(Company-wide information technology architecture); Software Packages (standard
personal computer and individual software packages, such as electronic
spreadsheet and word processing software); Application Tools and Products
(products utilized by information technology development organizations to
develop and implement automated business applications); Client Applications;
Client Interfaces; and Third Party Suppliers. In order to address the Year 2000
issue and the seven major sections stated above, the Company's Year 2000 plan
involves five phases: Planning and Awareness Phase (developing a budget and
project plan); Inventory and Assessment Phase (identify systems and
applications, assess risks and prioritize efforts); Remediation Phase (repair,
replace or retire non-compliant systems or processes); Validation Phase (perform
testing of systems and processes); and Implementation Phase.
The following chart outlines, by major section, the phases of the
Company's Year 2000 plan that have been completed:
<TABLE>
<CAPTION>
Phases
-----------------------------------------------------------------------------------------
Planning Inventory
and and
Major Section Awareness Assessment Remediation Validation Implementation
- ----------------------------- ------------- ------------- --------------- ------------- -----------------
<S> <C> <C> <C> <C> <C>
Internal Systems and
Equipment................. Completed Completed Completed Completed Completed
Hardware................... Completed Completed Completed Completed Completed
Software Packages.......... Completed Completed Completed Completed Completed
Application Tools and
Products.................. Completed Completed Completed Completed Completed
Client Applications........ Completed Completed Completed Completed Completed
Client Interfaces.......... Completed Completed Completed Completed Completed
Third Party Suppliers...... Completed Completed Completed Completed Completed
</TABLE>
As shown in the chart above, the Company has completed all phases of
its Year 2000 plan. However, the Company will continue to monitor its Year 2000
plan throughout the remainder of 1999.
18
<PAGE> 19
The Company, pursuant to the PRISM Project, which was undertaken by the
Company for reasons unrelated to any Year 2000 issues, has expended
approximately $12.7 million of the estimated $13.0 million required to upgrade
and enhance its internal financial and administrative systems. An ancillary
benefit of the PRISM Project is that the resulting systems will be Year 2000
compliant. Implementation of substantially all aspects of the PRISM Project took
place as of the third quarter of 1999, with the exception of the billing module,
which is expected to be implemented during the fourth quarter of 1999. Through
September 30, 1999, the Company, exclusive of the PRISM Project, has spent
approximately $1.3 million on the Year 2000 issue. As all phases of the
Company's Year 2000 plan have been completed as of September 30, 1999, the
Company does not currently expect to incur any significant additional costs
throughout the remainder of 1999 related to its Year 2000 efforts. This does not
include any costs associated with the implementation of contingency plans, if
required, which are described in more detail below. All incremental costs
associated with the Year 2000 issue are being expensed as incurred.
Since the Year 2000 issue may also affect the systems and applications
of the Company's customers or suppliers, the Company has initiated formal
communications with its customers and suppliers to determine their overall Year
2000 readiness and the extent to which the Company's interface systems are
vulnerable to those third parties' failure to remediate their own Year 2000
issues. As part of its overall communication process, the Company has mailed
letters to all of its customers and suppliers in an effort to receive the
appropriate warranties and assurances that those parties are, or will be, Year
2000 compliant. For those responses that have not been received from customers
or suppliers or for those customers or suppliers that have not published a
statement or disclosure concerning their Year 2000 readiness, the Company has
developed contingency plans, which are described in further detail below.
Although the Company currently does not anticipate any material adverse impact
on its operations as a result of Year 2000 issues of its customers or suppliers,
no assurance can be given that the failure by one or more of its major suppliers
or customers to become Year 2000 compliant will not have a material adverse
impact on its operations.
The extent of the Company's Year 2000 exposure, the costs of achieving
Year 2000 compliance and the time period within which the Company believes it
will achieve its Year 2000 compliance are based on management's knowledge to
date and its best estimates to date. Although the Company expects its critical
systems and applications to be Year 2000 compliant prior to any anticipated
impact on its operations, there is no guarantee that these results will be
achieved. Specific factors that give rise to this uncertainty, as well as the
timing and cost of achieving Year 2000 compliance (if at all), include, but are
not limited to, availability and cost of personnel, failure to identify and
correct all Year 2000 susceptible systems and applications, noncompliance by
customers, suppliers and other third parties whose systems and operations impact
the Company, and other similar uncertainties. A reasonably possible worst case
scenario might include the failure of third parties to provide services, such as
power and telecommunication services, or the loss of the Company's automated
call distributors or dialers which could, depending on its duration, result in a
material disruption to the Company's operations and its ability to generate
revenue.
19
<PAGE> 20
The Company has developed contingency plans in the unlikely event that
the uncertainties or worst case scenario described above do in fact occur. The
Company's contingency plans, which were created based on the probability of an
event and the magnitude of its impact on operations, are as follows:
Suppliers - The Company's providers of basic resources, such as
electric, telephone service, water, etc., have been contacted and/or
the Company has reviewed statements or disclosures published by its
suppliers concerning their Year 2000 readiness. Substantially all of
the Company's suppliers are addressing the Year 2000 issue and planning
to achieve compliance prior to any impact on their respective business.
In the unlikely event a critical supplier fails to achieve Year 2000
compliance, with the exception of the Company's local and long distance
telecommunications carriers which are addressed below, contingency
plans have been developed by the Company to mitigate minor, short-term
disruptions, such as in-house generation for the loss of electric
power. Long-term, widespread disruptions, for which there is no viable
contingency, would cause operations to be discontinued and call centers
to be shut down, which would result in a material disruption to the
Company's operations and its ability to generate revenue.
The Company's local and long distance telecommunications carriers will
have the greatest impact on the Company's operations should they not
achieve Year 2000 compliance. The Company addressed the issue on
several levels and assessed the feasibility of developing and
implementing a contingency plan, including the use of back-up or
replacement telecommunication lines. The Company determined that there
is no feasible contingency for a failure of its local and/or long
distance telecommunications carriers to achieve Year 2000 compliance,
based upon the following:
o There would be no guarantee that the replacement networks
would continue without disruption, as the alternate
carriers offer no greater guarantees than the Company's
current telecommunication providers.
o Transition from one network to another has the potential
to create the same types of disruptions that the Company
would be attempting to avoid.
o The Company's local and long distance telecommunications
providers have declared themselves to be Year 2000
compliant and the risk of massive network outages are
remote based on their assurances, as well as the critical
nature of their services to businesses and consumers
nationwide.
o The high cost of establishing replacement networks would
not be justified in light of the issues described above.
Customers - The Company's customers have been contacted and/or the
Company has reviewed statements or disclosures published by its
customers concerning their Year 2000 readiness. Substantially all of
the Company's customers are addressing the Year 2000 issue and planning
to achieve compliance prior to any impact on their respective business.
For those customers that have not yet directly responded to the Company
with respect to their Year 2000 compliance or for those customers that
have not published a statement or disclosure concerning their Year 2000
readiness, the Company has determined that any impact on its operations
resulting from those customers' non-compliance will be minor.
Nonetheless, contingency plans have been developed as necessary on a
client-by-client basis.
Internal Systems and Applications - Due to the Company's adherence to
its plan for achieving Year 2000 compliance, the Company expects its
critical systems and
20
<PAGE> 21
applications to be Year 2000 compliant. The Company currently
anticipates that the impact of Year 2000, if any, on its systems and
applications would be minor disruptions of short-term duration to be
remedied in the normal course of business. The Company has developed
contingency plans, such as taking steps to ensure that adequate
personnel will be available to provide maximum support of the Company's
systems and infrastructure prior and subsequent to the turn of the
century.
The Company will continue to assess the need for further or modified
contingency plans based on the progress of the Year 2000 efforts by the Company
and third parties throughout the remainder of 1999.
FLUCTUATIONS IN QUARTERLY RESULTS
The Company experiences quarterly variations in revenues, operating
margins and operating income principally as a result of the timing of clients'
marketing campaigns and customer service programs, the commencement of new
contracts, changes in the Company's revenue mix among its various services
offered to clients, including the percentage (if any) of services provided under
incentive-based compensation agreements, and the timing of additional operating
and capital expenses to acquire and support new business and/or in connection
with new products and services. In addition, the completion or termination of a
large customer service program or the loss or delay in the implementation of a
large customer service program or in a transfer of teleservicing-based
application software could cause the Company to experience such quarterly
variations.
FORWARD-LOOKING STATEMENTS
This report contains forward-looking statements (within the meaning of
Section 21E. of the Securities Exchange Act of 1934, as amended), representing
the Company's current expectations and/or beliefs concerning future events and
goals. If and when used in this report, the words "believes," "feels,"
"estimates," "plans," "expects," "intends," "projects," "anticipates," "sees,"
"contemplates," "may," "would," "could" and similar expressions as they relate
to the Company or its management are intended to identify forward-looking
statements. The Company can give no assurance that such expectations and beliefs
will prove to be correct. Accordingly, the actual results of the Company could
differ materially from those indicated by the forward-looking statements because
of various risks and uncertainties related to and including, without limitation,
the Company's effective and timely initiation, development and implementation of
new client relationships and programs (especially with respect to its Internet
clients), the maintenance of existing client relationships and programs
(particularly since the Company's agreements with its clients generally do not
assure the Company will generate a specific level of revenue, do not designate
the Company as the exclusive service provider and are terminable on short
notice), the effective completion of the implementation of the Company's
restructuring plan and performance-enhancing initiatives, the achievement of
satisfactory levels of both gross and operating profits and margins, the opening
of new customer interaction centers in accordance with strategic plans and in a
timely and economic manner consistent with existing capacity requirements, the
ability of the Company to hire, train and retain a sufficient labor force of
qualified personnel at competitive wage rates, the development and continued
enhancement of telecommunication, Internet, computer and information
technologies and infrastructures and operational and financial systems
(including the successful and timely completion of the implementation and
installation of the PRISM Project), the effective and timely marketing to, and
level of acceptance and increased utilization by, existing and new clients of
the Company of Precision Resolution, InfiniteAccess and other Internet products
and services, technical difficulties or errors, problems or excessive costs
incurred by the Company in connection with the completion of the development,
implementation and/or future enhancement of InfiniteAccess, Precision
21
<PAGE> 22
Resolution, and/or IMA Advantage/Edge, and/or the integration of Internet
technologies with the Company's current products and services to create customer
interaction centers and the success and acceptance by the Company's clients
thereof, the failure of the Company to cost-effectively develop new Internet
services and products or to maintain or enter into new strategic or key business
relationships in connection with the development and/or enhancement of its
Internet offerings, the over-estimation by the Company of the level of need and
demand for customer support and service through the use of the Internet, the
ability of the Company to hire, train and retain qualified technology and other
personnel in connection with its development, implementation and/or enhancement
efforts and the operations of PRCNETCARE.COM, the compatibility of
InfiniteAccess, Precision Resolution and other Internet products and services
with existing systems of the Company's clients and the extent of the technical
problems arising with respect to obtaining such compatibility, the realization
by the Company of the expected direct and indirect benefits and returns
(including operational and marketing benefits) from its investment in GRS, the
introduction of new competitive Internet and other products and services in the
Company's industry by other companies and, in connection therewith, the ability
of the Company to maintain a leadership role in both traditional and
Internet-based customer care products and services, the achievement by the
Company and its suppliers and customers of Year 2000 compliance in a timely and
cost efficient manner, the anticipated growth in industry trends towards
outsourcing and cosourcing of telephone and Internet based marketing and
customer service operations (particularly in the telecommunications services and
equipment, transportation, financial services, utility, consumer products, food
and beverage, and travel industries), changes in competition and the forms of
direct sales and marketing techniques, consumer interest in, and use of, the
Company's clients' products and services, general economic conditions, costs of
telephone services, financing and leasing of equipment, the level of costs
associated with the development and then expansion of PRCNETCARE.COM's business
and operations, the adequacy of cash flows from operations and available
financing to fund capital needs and future growth, changes in and additions to
governmental rules and regulations applicable to the Company, the realization of
the Company's net deferred tax asset and other risks set forth in this report,
in the Company's other filings with the SEC and in the Company's press releases.
These risks and uncertainties are beyond the ability of the Company to control;
in many cases, the Company cannot predict the risks and uncertainties that could
cause actual results to differ materially from those indicated by the
forward-looking statements and the Company undertakes no obligation to revise or
update any forward-looking statements in order to reflect events or
circumstances that may arise after the date of this report.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
During the quarter ended September 30, 1999, there have been no
material changes in the information about the Company's market risk as of
December 31, 1998 as set forth in Item 7A. of the 1998 Form 10-K.
22
<PAGE> 23
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
For a discussion of the lawsuit captioned HENRY E. FREEMAN AND FREEMAN
INDUSTRIAL ENTERPRISES CORPORATION v. PRECISION RESPONSE CORPORATION, MARK J.
GORDON AND DAVID L. EPSTEIN (Case No. 3:98-CV-1895-AVC (D. Conn.)), see Note 8 -
Contingencies of the Notes to Consolidated Financial Statements in Item 1 of
Part I of this report, which Note 8 is incorporated by reference into this Item
1 of Part II.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
(c) Recent Sales of Unregistered Securities
The Company did not issue or sell any unregistered securities during
the quarter ended September 30, 1999, although the Company granted the
stock options described below pursuant to the Company's Amended and
Restated 1996 Incentive Stock Plan, as amended (the "Incentive Stock
Plan"):
(i) The Company granted options to purchase 20,500 shares of
Common Stock to 23 employees at an exercise price of $5.60 per
share. These options have a term of seven years and vest at
the rate of 20% on each of the first five anniversaries from
the date of grant (July 2, 1999).
(ii) The Company granted options to purchase 25,000 shares of
Common Stock to an employee of the Company at an exercise
price of $5.69 per share. These options have a term of seven
years and vest at the rate of 20% on each of the first five
anniversaries from the date of grant (July 6, 1999).
(iii) The Company granted options to purchase 125,500 shares of
Common Stock to 22 employees at an exercise price of $8.41 per
share. These options have a term of seven years and vest at
the rate of 20% on each of the first five anniversaries from
the date of grant (August 31, 1999).
The foregoing stock options were granted by the Company in reliance
upon the exemption from registration available under Section 4(2) of
the Securities Act of 1933, as amended.
23
<PAGE> 24
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a)Exhibits
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- -------------- -----------------------------------------------------------
10.1 Lease Agreement effective as of July 20, 1999, between
Crossroads Business Park Associates, as landlord, and the
Company, as tenant, as amended by Lease Amendment No. 1
dated and effective as of October 29, 1999, between
Crossroads Business Park Associates, as landlord, and the
Company, as tenant*
10.2 Employment Agreement effective as of August 9, 1999,
between the Company and Paul M. O'Hara*+
27.1 Financial Data Schedule (for SEC use only)*
---------------
* Filed herewith.
+ Indicates a management contract or compensatory plan or arrangement
(b) Reports on Form 8-K
No reports on Form 8-K were filed by the Company during the quarter
ended September 30, 1999.
24
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PRECISION RESPONSE CORPORATION
(Registrant)
By: /s/ Paul M. O'Hara
-----------------------------------
Paul M. O'Hara
Executive Vice President - Finance
and Chief Financial Officer
By: /s/ Thomas F. Jennings, Jr.
-----------------------------------
Thomas F. Jennings, Jr.
Vice President and Controller
(Principal Accounting Officer)
Dated: November 4, 1999
25
<PAGE> 26
PRECISION RESPONSE CORPORATION
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- -------------- -----------------------------------------------------------
10.1 Lease Agreement effective as of July 20, 1999, between
Crossroads Business Park Associates, as landlord, and the
Company, as tenant, as amended by Lease Amendment No. 1
dated and effective as of October 29, 1999, between
Crossroads Business Park Associates, as landlord, and the
Company, as tenant*
10.2 Employment Agreement effective as of August 9, 1999,
between the Company and Paul M. O'Hara*
27.1 Financial Data Schedule*
---------------
* Filed herewith.
<PAGE> 1
Exhibit 10.1
- --------------------------------------------------------------------------------
LEASE AGREEMENT
BETWEEN
CROSSROADS BUSINESS PARK ASSOCIATES
as Landlord,
and
PRECISION RESPONSE CORPORATION
as Tenant
FOR THE PREMISES
Fourth Floor, Crossroads Building Two
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
DEFINITIONS 1
1.01 PREMISES.................................................................................................5
1.02 CONSTRUCTION DRAWINGS....................................................................................5
1.03 DELIVERY OF POSSESSION OF THE PREMISES...................................................................6
1.04 CONSTRUCTION OF THE INTERIOR MODIFICATIONS...............................................................6
1.05 PAYMENT OF LANDLORD'S CONTRIBUTION.......................................................................7
1.06 MEASUREMENT OF THE PREMISES..............................................................................8
2.01 TERM OF LEASE............................................................................................8
3.01 MONTHLY BASE RENT........................................................................................9
3.02 TIME FOR PAYMENT OF RENT................................................................................10
3.03 RENT ESCALATION.........................................................................................10
4.01 LETTER OF CREDIT........................................................................................10
5.01 PERMITTED USE...........................................................................................10
6.01 TENANT'S TAXES..........................................................................................11
7.01 PROPORTIONATE SHARE OF OPERATING COSTS..................................................................11
8.01 TENANT'S OBLIGATIONS....................................................................................12
9.01 LANDLORD'S OBLIGATIONS..................................................................................12
9.02 TENANT'S SELF HELP REMEDY...............................................................................13
10.01 ALTERATIONS.............................................................................................13
11.01 SIGNS AND WINDOW TREATMENT..............................................................................14
12.01 INSPECTIONS.............................................................................................14
13.01 UTILITIES...............................................................................................15
14.01 ASSIGNMENT AND SUBLETTING...............................................................................15
15.01 FIRE AND CASUALTY DAMAGE................................................................................16
16.01 LIABILITY...............................................................................................17
17.01 CONDEMNATION............................................................................................18
18.01 HOLDING OVER............................................................................................19
19.01 QUIET ENJOYMENT.........................................................................................19
20.01 EVENTS OF DEFAULT.......................................................................................19
20.02 REMEDIES................................................................................................20
21.01 RIGHTS RESERVED TO LANDLORD.............................................................................23
22.01 OMITTED
23.01 LANDLORD'S LIEN.........................................................................................23
24.01 ATTORNMENT AND SUBORDINATION............................................................................23
25.01 MECHANICS LIENS.........................................................................................24
26.01 NOTICES.................................................................................................25
27.01 MISCELLANEOUS...........................................................................................25
28.01 COMPLIANCE WITH PUBLIC ACCOMMODATION LAWS...............................................................28
29.01 ENVIRONMENTAL MATTER....................................................................................28
29.02 RADON GAS...............................................................................................28
30.01 RIGHT OF FIRST OFFER....................................................................................28
31.01 MOVING COST ALLOWANCE...................................................................................29
32.01 ROOFTOP RIGHTS..........................................................................................29
33.01 SMOKE FREE BUILDING.....................................................................................29
34.01 NON EXCLUSIVE PARKING...................................................................................29
SCHEDULE OF EXHIBITS
Building Legal Description....................Exhibit A
N/A and none included.........................Exhibit B
Construction Work Letter......................Exhibit C
Rules and Regulations.........................Exhibit D
</TABLE>
<PAGE> 3
Crossroads Business Park Building Two
8151 West Peters Road, Fourth Floor
Plantation, Florida 33317
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and is entered into by and between
CROSSROADS BUSINESS PARK ASSOCIATES, a Florida general partnership (the
"Landlord") and PRECISION RESPONSE CORPORATION, a Florida corporation (the
"Tenant" or "You"). To help in understanding the terms of this Lease, the
following defined terms shall have the following respective meanings:
"Adjustment Date" means the first day of the Lease Year (other than the
first Lease Year).
"Affiliate" means an affiliate of yours as defined in Rule 405
promulgated under the Securities Act of 1933, as amended. The term "Affiliate"
shall also include any entity which succeeds to your business by reason of
merger, consolidation or purchase of all or substantially all of your assets
provided that such entity has a net worth equal to or exceeding your net worth.
"Base Building Condition" means a shell which is slab to slab, no
perimeter drywall, no HVAC (other than HVAC unit(s) serving the Common Areas),
electric panels in the electric room only, and no distribution.
"Building" means the office building located at 8151 West Peters Road,
Plantation, Florida 33317, which Building is sometimes referred to by the
Landlord as Crossroads Building Two. The Building is located on land legally
described in EXHIBIT A annexed hereto, which legal description is subject to
change based on the final as built survey which may be prepared subsequent to
the Effective Date. The Building is comprised of approximately 100,000 rentable
square feet (r.s.f). of space.
"Commencement Date" means the Effective Date.
"Common Areas" means the lobbies, elevators, common restrooms, common
hallways, shipping and receiving areas, and common parking areas, driveways, and
sidewalks, common entrances and other similar areas and access ways serving the
Building.
"Construction Drawings" means Landlord approved plans and
specifications for your construction of the Interior Buildout, as same may be
modified from time to time.
"Controllable Operating Costs" means all Operating Costs other than
Taxes, insurance premiums, association assessments, security, utilities and
trash removal. Notwithstanding, security will be a Controllable Operating Cost
if the contract for the provision of security services was not competitively bid
to at least two bidders.
"Crossroads Business Park" means all of the land within Jacaranda
Parcel 817 owned by Landlord.
"Development" means the Building together with all other improvements
within Crossroads Business Park.
"Draw Request" means a written application signed by you and setting
forth the portion of Landlord's Contribution requested. A Draw Request must
include the following: (i) your architect's certification that the Interior
Buildout is being constructed in accordance with the Construction Drawings; (ii)
your certification that all prior funded Draw Requests have been used to pay the
items specified in the prior Draw Requests; (iii) conditional lien releases from
your general contractor and the subcontractors for which the Draw Request
pertains; (iv) line itemization of the portion of the Interior Buildout Cost
pertaining to the Draw Request with supporting documentation; and (v)
unconditional partial lien releases for all prior payments to the general
contractor and to the subcontractors. Not more than one Draw Request may be made
in any one calendar month.
<PAGE> 4
"Effective Date" means the date of this Lease which date shall be
deemed to refer to the last date in point of time on which all parties hereto
have executed this Lease.
"Environmental Law" means any federal, state or local law, ordinance,
regulation, regulatory guidance or pronouncement relating to pollution or
protection of the environment including the use, analysis, generation,
manufacture, handling, storage, presence, disposal or transportation of any
Hazardous Substance. The term "Environmental Law" includes any applicable best
management practices for products being sold or used by you at the Premises.
"Events of Default" means those events of default specifically
identified in this Lease.
"Expiration Date" means the last day of the tenth Lease Year.
"Hazardous Substances" means pollutants, contaminants, toxic or
hazardous wastes, or any other substances, the removal of which is required or
the use of which is restricted, prohibited or penalized by any Environmental
Law.
"Holdover Rent" means the sum of (i) 150% of the monthly base rent
amount in effect on the termination date of this Lease plus (ii) your
proportionate share of Operating Costs plus (iii) all sales tax required to be
collected thereon.
"Interior Buildout" means the construction of the interior of the
Premises pursuant to the Construction Drawings.
"Interior Buildout Cost" means the hard costs to construct the Interior
Buildout including general contractor, premiums for the general contractor
payment and performance bonds, architecture and permitting fees and other
charges payable to governmental authorities.
"Landlord's Broker" means Premier Commercial Realty, Inc.
"Landlord's Contribution" means the improvement allowance that Landlord
has agreed to pay to you in the method and manner prescribed in this Lease in
connection with your obligation to construct the Interior Buildout. Landlord's
Contribution is the lesser of (i) the Interior Buildout Cost; or (ii) the sum of
$1,088,960. Other than Landlord's obligation to pay to you the Landlord's
Contribution, Landlord has not agreed to and will not be responsible for the
space planning, design or construction of the Interior Buildout or its cost
thereof.
"Lease" means this lease agreement including the rules and regulations
attached hereto and including all exhibits attached hereto. If there is a
conflict between an express provision of the body of the lease agreement and the
rules and regulations attached hereto, then the express provision of the lease
agreement shall control over any contrary provision in the rules and
regulations.
"Lease Year" means, as to the first Lease Year, the 365 day period
beginning on the Rent Commencement Date (366 day period if February 29 falls
within such Lease Year), provided, however, that if the Rent Commencement Date
is a day other than the first day of a calendar month, then the first Lease Year
shall instead be measured from the first day of the calendar month immediately
following the calendar month within which the Rent Commencement Date falls.
Thereafter, each succeeding Lease Year shall be the 365 day period (366 day
period if February 29 falls within such period) immediately following the end of
the prior Lease Year. By way of example, if the Rent Commencement Date is
October 24, 1999, then each Lease Year would run from November 1 through October
31.
Landlord: Tenant: RDM
----------- -------------
2
<PAGE> 5
"Letter of Credit" means an irrevocable and unconditional letter of
credit in the amount of $450,000. The Letter of Credit must (i) be in form
satisfactory to Landlord; (ii) clearly state that it is a clean site draft in
the required amount in favor of Landlord, irrevocable and expiring no earlier
than April 1, 2006, or, if the issuer is unable to or is unwilling to issue a
multi-year form of Letter of Credit, then in a form which will automatically
renew from year to year unless the issuer provides Landlord with at least sixty
days advance written notice that the issuer will not be renewing the Letter of
Credit; (iii) be issued by NationsBank, N.A k/n/a Bank of America or a bank
approved by Landlord; (iv) be payable upon presentation to a bank in Broward
County, Florida; and (v) be unconditionally available to Landlord by Landlord's
drafts, at sight, with partial draws permitted.
"Market Rent" means base rent determined with reference to the average
of normal values being achieved by landlords in lease renewals entered into with
private sector tenants for comparable space (i.e., the Premises in it's as is
condition at the time of renewal) in comparable buildings in equally desirable
locations within the same market assuming operating expense and real estate
passthroughs and consumer price index increases corresponding to those contained
in this Lease. Consideration should be given to the value of any concession as
may then be customary in the market for lease renewals, including, without
limitation, rental abatements, cash allowances and/or credits for renewal tenant
improvements over the entire renewal term. The determination of Market Rent
shall also take in to consideration the credit worthiness of the tenant. The
determination of Market Rent shall be made by Landlord. Notwithstanding, you
shall have the right to disagree with Landlord's determination and to submit
your own determination of Market Rent. If Landlord does not agree with your
determination, then you and Landlord shall mutually select an independent
appraiser qualified to appraise commercial property and who shall have
experience in the appraisal of similar properties within the referenced area.
The sole function of the independent appraiser shall be to determine which among
Landlord's and your determinations of Market Rent is most correct and the
decision of the independent appraiser shall be final and binding upon the
parties. The cost of the independent appraiser shall be paid for by the party
whose Market Rent determination was found by the independent appraiser to not be
the most correct.
"Operating Costs" means all reasonable (as to amount) and customary
costs and expenses paid or incurred by Landlord or on Landlord's behalf in
connection with the ownership, management, repair, replacement, remodeling,
maintenance and operation of the Building, including, without limitation, all
Taxes, assessments (whether general or special) and governmental charges of any
kind and nature whatsoever including assessments due to deed restrictions and/or
owner's associations, which accrue against the Building, the costs of
maintaining and repairing parking lots, parking structures, easements,
landscaping, property management fees, utility costs to the extent not
separately metered, insurance premiums, depreciation of the costs of
replacements or improvements to the Building but not including any Structural
Repairs which are normally chargeable to capital accounts under sound accounting
principles. The term "Operating Costs" does not include: (i) costs of
alterations of tenants' premises; (ii) costs of curing construction defects;
(iii) interest and principal payments on mortgages, and other debt cost; (iv)
real estate brokers' leasing commissions or compensation; (v) any cost or
expenditure for which Landlord is reimbursed, whether by insurance proceeds or
otherwise; (vi) cost of any service furnished to any other occupant of the
Building which Landlord does not provide to you hereunder. Notwithstanding
anything contained herein to the contrary, depreciation of any capital
improvements which are intended to reduce Operating Costs, or are required under
any governmental laws, regulations or ordinances which were not applicable to
the Building at the time it was constructed, or are recommended by the N.F.P.A.
Life Safety Code, shall be included in Operating Costs. If Landlord selects the
accrual method of accounting rather than the cash accounting method for
Operating Costs purposes, Operating Costs shall be deemed to have been paid when
such expenses have accrued. Certain of the costs of management, operation and
maintenance of the Building may be common to all of the buildings within the
Development owned by Landlord and you consent to Landlord's allocation of such
common costs among the various buildings owned by Landlord within the
Development and the amount of such common costs allocated by Landlord to the
Building shall be deemed an Operating Cost, provided that the allocation method
used by Landlord is reasonable. Landlord may, in a reasonable manner, allocate
insurance
Landlord: Tenant: RDM
----------- -------------
3
<PAGE> 6
premiums for so-called "blanket" insurance policies which insure other
properties as well as the Building and said allocated amount shall be deemed to
be an Operating Cost.
"Permitted Use" means the use of the Premises for general business
office use.
"Premises" means approximately 27,224 rentable square feet of space
comprised of the entire fourth floor of the Building.
"Proportionate share" means a fraction the numerator of which shall be
the rentable square footage of the Premises and the denominator of which shall
be the rentable square footage of the Building, as determined by Landlord.
Notwithstanding anything contained in the Lease to the contrary, Landlord shall
have the right, from time to time, to add or exclude from the Building real
property and any buildings constructed thereon. If Landlord elects to add to or
exclude from the Building, Landlord will notify you in writing of any such
addition or exclusion which notice shall describe the property added or excluded
and which notice shall describe the recomputation of your Proportionate share.
"Public Accommodation Law" means any and all applicable laws,
regulations and building codes governing non-discrimination and public
accommodations and commercial facilities including, without limitation, the
requirements of the Americans with Disabilities Act, 42 USC 12-101 and all
regulations and promulgations thereunder.
"Renewal Notice" means written notice that you intend to exercise an
option to extend granted to you under this Lease. A Renewal Notice, to be
effective, must be received by Landlord no later than one hundrd and eighty
(180) days prior to the Expiration Date, time being of the essence.
"Rent" means the sum of the monthly base rent plus the additional rent
as provided in Section 7.01 of this Lease together with all sales tax to be
collected thereon. Notwithstanding anything in the Lease to the contrary, all
amounts payable by you to or on behalf of Landlord under this Lease, whether or
not expressly denominated as Rent, shall constitute additional rent.
"Rent Commencement Date" means the (i) the fifteenth day immediately
following the date that a certificate of occupancy (temporary or permanent) or
its equivalent is issued by the City of Plantation permitting you to occupy the
Premises; or if earlier (ii) March 15, 2000.
"Restoration Period" means a one hundred and eighty (180) day period
beginning on the date Landlord is notified that the Building has been damaged or
destroyed by a casualty occurrence.
"Structural Repairs" means repairs and replacements to the Building's
foundations, load-bearing walls, columns and joists and replacement of roofing
and roof deck.
"Superior Mortgagee" means a bank, insurance company or other
institutional lender now or hereafter holding a mortgage encumbering the
Building. The current Superior Mortgagee is NationsBank, N.A., 100 S.E. Second
Street, 14th Floor, FL7-950-14-05, Miami, Florida 33131, attn.: Real Estate Loan
Administration. For purposes of the first and second paragraphs of Section 24.01
of this Lease, the term "Superior Mortgagee" will also include any other person
or entity then holding a mortgage encumbering the Building.
"Taxes" means all taxes, assessments, or governmental charges levied,
assessed or imposed on the Building. If at any time during the term of this
Lease the present method of taxation shall be changed so that in lieu of the
whole or any part of any such Taxes, there shall be levied, assessed or imposed
on Landlord a capital
Landlord: Tenant: RDM
----------- -------------
4
<PAGE> 7
levy or other tax directly on the rents received therefrom and/or a franchise
tax, assessment, levy or charge measured by or based, in whole or in part, upon
such rents for the Building, then all such taxes, assessments, levies or
charges, or the part thereof so measured or based, shall be deemed to be
included within the term "Taxes" for the purposes hereof. Where discounts are
available for prepayment, Taxes will be computed using the discount available
for payment in December irrespective of whether the Taxes are paid earlier or
later and irrespective of the actual amount of discount utilized, provided,
however, if Taxes are not paid within the discount period in connection with the
filing of a petition for a redetermination of the assessed amount or other
petition contesting the amount of Taxes, then in such event the preceding
provisions of this sentence shall not apply.
"Tenant's Broker" means Cushman & Wakefield of Florida, Inc .
"Term", "term" or "rental term" means the primary term of this Lease.
If the term of this Lease has been extended pursuant to an option granted to you
under this Lease to extend the term or pursuant to any amendment to this Lease
extending the term, then such extended term shall be included as part of the
term.
"Transfer Premium" means all rent, additional rent or other
consideration payable by an assignee or subtenant (other than an Affiliate) in
excess of the Rent payable by you under this Lease (on a per rentable square
foot basis in the case of a subletting where the subletting is for less than the
entire Premises) after deducting the reasonable expenses incurred by you for (i)
any changes, alterations and improvements to the Premises in connection with the
assignment or subletting, including any reasonable fees or costs incurred with
respect thereto; (ii) any brokerage commissions and reasonable attorney fees in
connection with the assignment or subletting; (iii) any marketing or promotional
fees; and (iv) the unamortized balance of any of your improvement costs to the
Premises in excess of Landlord's Contribution. In the case of a subletting of
50% or less of the Premises, the Transfer Premium will be deemed to be none.
WITNESSETH:
1.01 PREMISES. (a) In consideration of your obligation to pay Rent and
of the other terms, provisions and covenants hereof, Landlord leases the
Premises to you and you lease the Premises from Landlord. Provided that you are
not in default, you and your employees, customers, licensees and invitees shall
have the non-exclusive right to use, in common with the other parties occupying
the Building, the Common Areas, subject, however, to such reasonable rules,
posted signs and regulations as Landlord may, from time to time, prescribe in
accordance with this Lease. The definitions preceding this Section 1.01 are
expressly incorporated in to and made a part of this Lease and unless otherwise
indicated in this Lease to the contrary, Section references are to the sections
of this Lease.
(b) During the term of this Lease and provided that you are not
then in default, you shall have the exclusive right to use at no additional
charge (i) ten (10) reserved covered parking spaces comprised of space no.s 4,
5, 6, 7, 8, 9, 25, 26, 27 and 28; and (ii) two spaces in front of the Building
for your company limousines. The location of these spaces shall be determined
by Landlord.
(c) The parties will agree on the Construction Drawings in
accordance with the procedures set forth in Section 1.02. You will then
construct the Interior Buildout in accordance with the requirements of Section
1.04.
1.02 CONSTRUCTION DRAWINGS. (a) The Construction Drawings will be
finalized in accordance with the time line contained in this Section 1.02, and
as to all required time periods contained in this Section 1.02, time shall be of
the essence. The time line is as follows:
Landlord: Tenant: RDM
----------- -------------
5
<PAGE> 8
(i) You agree to provide Landlord with the Construction Drawings
on or before the seventy fifth (75th) day immediately following the Effective
Date.
(ii) Landlord agrees to provide you with written notice of
approval or rejection of the Construction Drawings on or before the tenth day
immediately following Landlord's receipt of the Construction Drawings. If
Landlord rejects the Construction Drawings, Landlord's rejection notice must
specify with particularity the reason for rejection and, where applicable, an
alternate that Landlord would accept. Landlord's failure to timely give any
written notice of approval or rejection as required herein shall be a deemed
approval.
(iii) If Landlord rejects the Construction Drawings, you agree to
provide Landlord with revised Construction Drawings within eight business days
of your receipt of Landlord's rejection notice. The revised Construction
Drawings must contain an itemization of the revisions that made.
(iv) Landlord agrees to provide you with written notice of
approval or rejection of the revised Construction Drawings on or before the
fifth day immediately following Landlord's receipt of the revised Construction
Drawings. If Landlord rejects the revised Construction Drawings, Landlord's
rejection notice must again specify with particularity the reason for rejection
and, where applicable, an alternate that Landlord would accept. In such event,
the procedures set forth in paragraphs (iii) and (iv) above will continue to be
repeated until such time as Landlord approves the Construction Drawings.
Landlord's failure to timely give any written notice of approval or rejection as
required herein shall be a deemed approval.
(b) Any approval by Landlord of or consent by Landlord to the
Construction Drawings or to any part thereof or to any changes thereto and any
inspection or approval of the Interior Buildout shall be deemed to be strictly
limited to an acknowledgment of approval or consent and such approval or consent
shall not constitute an assumption by Landlord of any responsibility for the
accuracy, sufficiency or feasibility of any plans, specifications or other such
items and shall not imply any representation, acknowledgment or warranty by
Landlord that the design is safe, feasible or structurally sound or will comply
with any legal or governmental requirements. Any deficiency in design, although
same had the prior approval of Landlord, shall be solely your responsibility. It
is your responsibility to ensure that the Construction Drawings and the Interior
Buildout comply with all applicable building codes and ordinances, with the
N.F.P.A. Life Safety Code and with the Public Accommodation Laws. Your
obligations under Section 28.01 of this Lease shall apply to the Interior
Buildout.
1.03 DELIVERY OF POSSESSION OF THE PREMISES. The Premises will be
delivered to you on the Commencement Date in Base Building Condition and it will
be your obligation to construct the Interior Buildout in the manner set forth in
the Construction Drawings. The taking of possession of the Premises by you shall
be deemed conclusively to establish that the Premises, subject to latent
defects, are in good and satisfactory condition as of when possession was taken
and that you have determined that the Premises is suitable for your intended
purposes. Landlord has made no warranties with respect to suitability (including
whether the applicable zoning for the Building will permit your Permitted Use)
and you hereby expressly waive any implied warranty of same. You further
acknowledge that no representations as to the repair of the Premises, nor
promises to alter, remodel or improve the Premises have been made by Landlord,
unless such are expressly set forth in this Lease. After the Commencement Date,
you shall, upon demand, execute and deliver to Landlord a letter of acceptance
of delivery of the Premises.
1.04 CONSTRUCTION OF THE INTERIOR MODIFICATIONS. (a) As soon as is
reasonably practical following approval of the Construction Drawings, you will
apply for a building permit to construct the Interior Buildout and you will
diligently pursue to completion the obtaining of the building permit.
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(b) Upon receipt of the building permit for the construction of
the Interior Buildout, you will commence the construction of the Interior
Buildout and you will diligently pursue to completion the construction of the
Interior Buildout, subject to force majeure or other unavoidable delay,
provided, however, that such force majeure or other unavoidable delay shall not
result in an extension of the Rent Commencement Date. You agree to construct the
Interior Buildout in accordance with the Construction Drawings and in accordance
with all applicable building codes and ordinances, the N.F.P.A. Life Safety Code
and in compliance with all applicable Public Accommodation Laws. You shall be
permitted to make changes to the Construction Drawings only if Landlord agrees
to the changes. Landlord agrees to not unreasonably withhold, delay or condition
any requested approval of changes to the Construction Drawings.
(c) The general contractor selected by you is subject to
Landlord's reasonable approval and the general contractor must be bonded and
fully insured in accordance with Landlord's insurance requirements, provided
that such insurance requirements are commercially reasonable. Your general
contractor and any subcontractors shall be subject to the administrative
supervision of Landlord's construction manager provided, however, that Landlord
shall not be entitled to charge you for a construction management or supervisory
fee. Provided that Tiger Construction, Inc. is bondable and insurable, Landlord
approves Tiger Construction, Inc. as your general contractor.
(d) All materials used in the construction of the Interior
Buildout shall be building standard or better as set forth in the construction
letter attached to this Lease as EXHIBIT C. The materials used in the
construction of the Interior Buildout and the improvements to the Premises
included in the Interior Buildout represents realty and not personalty and at
Lease expiration, ownership will vest in Landlord.
(e) Your obligation to pay Rent begins on the Rent Commencement
Date and is not dependant upon your completion of the Interior Buildout on or
before that date and you will be obligated to begin paying Rent on the Rent
Commencement Date even if the Interior Buildout is not completed by that date.
1.05 PAYMENT OF LANDLORD'S CONTRIBUTION. Landlord will make progress
payments to you of Landlord's Contribution in accordance with this Section 1.05.
Landlord shall be entitled to retain a ten percent retainage from each partial
payment and the retainage shall be paid to you as part of the final payment of
Landlord's Contribution. In order to obtain a partial draw of Landlord's
Contribution, you must submit a Draw Request. Landlord agrees to promptly
process the Draw Request and make payment to you within twenty five days of
Landlord's receipt of the Draw Request, provided, however, that you may not
submit more than one draw request in any calendar month and provided that the
Draw Request for such month was submitted on or before the second business day
of such calendar month. Landlord reserves the right to have the check made
payable to you and your general contractor. As a condition precedent to
Landlord's payment of the initial Draw Request, Landlord must have approved the
Construction Drawings, you must have commenced construction of the Interior
Buildout and Landlord must have received from you (i) a fully executed copy of
your contract with your general contractor; (ii) the notice of commencement in a
form approved by Landlord prior to its recording and then a copy of the recorded
notice of commencement; and (iii) a copy of the building permit for the Interior
Buildout. Landlord is not required to make payment to you of the final Draw
Request until Landlord receives from you (i) the certificate of occupancy for
the Premises; (ii) two sets of detailed as built plans and specifications and a
computer diskette containing the as built plans and specifications; (iii)
certificates from your architect and general contractor certifying that the
Interior Buildout has been constructed in accordance with the Construction
Drawings and in accordance with all applicable building codes and ordinances,
the N.F.P.A. Life Safety Code and in compliance with all applicable Public
Accommodation Laws; (iv) a certified copy of the recorded notice of termination
of the notice of commencement with final contractor affidavit attached; and (v)
final lien waivers from all individuals or entities who performed labor or who
provided materials or services and who would have a right to assert a lien
against the Premises arising out of work performed with respect to the Interior
Buildout.
Landlord: Tenant: RDM
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Notwithstanding anything in this Section 1.05 to the contrary, Landlord will pay
to you, within five business days of the later of the Effective Date or delivery
to Landlord of the Letter of Credit, the sum of $5,445 representing an advance
on your preliminary space planning costs, which amount is part of and is not in
addition to Landlord's Contribution.
1.06 MEASUREMENT OF THE PREMISES. On or before the twentieth day
immediately following the Effective Date, you may measure the Premises and/or
the Building. All calculations of usable area under this Lease shall be based
upon the American National Standard ANZI Z65.1 - 1980 (Reaffirmed 1989)
(Approved June 21, 1989 by the American National Standards Institute, Inc.).
Rentable square footage is the usable square footage plus a common area factor
of 15% for multi-tenant floors and 12% for single tenant floors. If you do not
provide Landlord with written notice disputing the measurement of the Premises
or the Building within such twenty day period, time being of the essence, then
the Premises shall be conclusively deemed to measure the rentable square footage
specified in the definition of Premises set forth above and the Building will
conclusively deemed to measure 100,000 rentable square feet. If Landlord
receives written notice from you within such twenty day period disputing the
foregoing measurements and if Landlord disagrees with your determination, then
Landlord's architect and your architect shall mutually select a third architect
whose sole purpose shall be to state whose measurement (Landlord's or yours in
which event Landlord shall have the right to claim that the rentable square
footage of the Premises is less than or greater than the amount specified in the
definition of Premises or that the rentable square footage of the Building is
less than or is greater than 100,000 r.s.f.) is most correct and the
determination of the third architect shall be conclusive and binding upon the
parties. Once the third architect makes a determination as to which measurement
is most correct, the rental rates during the primary term will be adjusted based
on a fraction, the numerator of which is the rentable square footage of
whichever of Landlord's or your measurement the third architect determined to be
most correct and the denominator of which is the rentable square footage set
forth in the definition of Premises. The cost of the third architect shall be
paid for equally by the parties.
2.01 TERM OF LEASE. The term of this Lease shall begin on the
Commencement Date and the term of this Lease shall end on the Expiration Date.
You shall have the option to extend the term of this Lease for a five year
extended term (the "First Extended Term"), the First Extended Term to begin on
the day after the end of the primary term of this Lease. To effectively exercise
your First Extended Term option, you must timely provide the Landlord with the
Renewal Notice. If Landlord does not timely receive the Renewal Notice, you
shall not be entitled to exercise your First Extended Term option.
If you exercised your First Extended Term option, you shall have the option to
extend the term of this Lease for a second five year extended term (the "Second
Extended Term"), the Second Extended Term to begin on the day after the end of
the First Extended Term. To effectively exercise your Second Extended Term
option, you must timely provide the Landlord with the Renewal Notice. If
Landlord does not timely receive the Renewal Notice, you shall not be entitled
to exercise your Second Extended Term option.
If you exercised your Second Extended Term option, you shall have the option to
extend the term of this Lease for a third five year extended term (the "Third
Extended Term"), the Third Extended Term to begin on the day after the end of
the Second Extended Term. To effectively exercise your Third Extended Term
option, you must timely provide the Landlord with the Renewal Notice. If
Landlord does not timely receive the Renewal Notice, you shall not be entitled
to exercise your Third Extended Term option.
If you do not exercise an option to extend granted above, then Landlord grants
to you the option to instead extend the term of the Lease then scheduled to
expire for a ninety day extension period (the "Holdover Extended Term"),
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the Holdover Extended Term to begin on the day after the end of the expiring
term. To effectively exercise your Holdover Extended Term option, you must
timely provide the Landlord with the Renewal Notice. If Landlord does not timely
receive the Renewal Notice, you shall not be entitled to exercise your Holdover
Extended Term option. Any holdover past the ninety days, or any holdover if you
do not timely provide Landlord with the Renewal Notice shall be subject to the
provisions of Section 18.01 of this Lease.
Notwithstanding anything in the above to the contrary, Landlord reserves the
right to refuse to allow you the option of extending the term of this Lease if:
(a) You or a permitted assignee or sublessee are not occupying and doing
business from the Premises (other than as a result of casualty) at the time an
option to extend is exercised or at the time an extended term commences; or (b)
You are in default under the Lease beyond the expiration of the applicable grace
period, if any, either at the time the option to extend is exercised or at the
time the extended term commences.
At the beginning of each renewal term other than the Holdover Extended Term,
Landlord agrees, at its sole cost and expense, to replace the carpeting in the
interior of the Premises and recover or repaint the interior walls, provided,
however, that Landlord shall not be required to incur any cost in excess of
$4.00 r.s.f. and the cost will be factored in to the determination of Market
Rent.
3.01 MONTHLY BASE RENT. (a) You agree to pay to Landlord monthly base
rent for the Premises, in advance, without demand, deduction or set off, for the
entire primary term hereof beginning on the Rent Commencement Date, at the
initial rate of $32,896.00 a month, provided, however, that if the Rent
Commencement Date is a day other than the first day of a calendar month, then
for the initial partial month, you agree to pay a per diem base rental of
$1,096.52 a day for each day of the partial month beginning on the Rent
Commencement Date and ending on the last day of the partial month in which the
Rent Commencement Date falls. The monthly base rent amount payable by you during
the primary term will increase on each Adjustment Date beginning with the
Adjustment Date corresponding to the first day of the second Lease Year, the
annual increase to be computed in the manner prescribed in Section 3.03.
(b) The monthly base rent amount payable by you during the First
Extended Term shall initially be 103% of the monthly base rent amount in effect
during the tenth Lease Year. The monthly base rent amount payable by you during
the First Extended Term will thereafter increase on each Adjustment Date
beginning with the Adjustment Date corresponding to the first day of the second
Lease Year of the First Extended Term, the annual increase to be computed in the
manner prescribed in Section 3.03.
(c) The monthly base rent amount payable by you during the Second
Extended Term shall initially be 110% of the monthly base rent amount in effect
during the fifth Lease Year of the First Extended Term. The monthly base rent
amount payable by you during the Second Extended Term will thereafter increase
on each Adjustment Date beginning with the Adjustment Date corresponding to the
first day of the second Lease Year of the Second Extended Term, the annual
increase to be computed in the manner prescribed in Section 3.03.
(d) The monthly base rent amount payable by you during the Third
Extended Term shall initially be 110% of the monthly base rent amount in effect
during the fifth Lease Year of the Second Extended Term. The monthly base rent
amount payable by you during the Third Extended Term will thereafter increase on
each Adjustment Date beginning with the Adjustment Date corresponding to the
first day of the second Lease Year of the Third Extended Term, the annual
increase to be computed in the manner prescribed in Section 3.03.
(e) The monthly base rent payable by you during the Holdover
Extended Term shall be 110% of the monthly base rent amount in effect during the
Lease Year that ended immediately prior to the beginning of the Holdover
Extended Term.
Landlord: Tenant: RDM
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(f) Notwithstanding anything in Section 3.01(a) to the contrary,
to the extent the Landlord's Contribution is less than $1,088,960, you shall be
entitled to receive a credit for the difference between $1,088,960 and the
actual amount of the Landlord's Contribution. The credit will be in one of the
following two forms, all at Landlord's sole option and discretion: (i) a credit
against Rent to be credited against Rent first becoming due and payable until
such time as the entire credit is exhausted; or (ii) reduced Base Rent with the
reduction amortized equally over the primary term of the Lease with an interest
factor of 10%.
3.02 TIME FOR PAYMENT OF RENT. The first month's Rent shall be paid
simultaneously with the execution of this Lease. Thereafter, each monthly
installment of Rent shall be due and payable on or before the first day of the
calendar month for which such Rent is payable.
3.03 RENT ESCALATION. On each Adjustment Date, the monthly base rent
amount shall increase to 103% of the monthly base rent amount that was payable
immediately before such Adjustment Date.
4.01 LETTER OF CREDIT. You agree to deliver the Letter of Credit to
Landlord no later than the tenth day immediately following the Effective Date,
time being of the essence. If the Letter of Credit is not delivered within such
period, then until such time as it is delivered, you agree to pay to Landlord a
penalty of $100.00 a day for each day until delivered and until such time as it
is delivered, Landlord shall have the right to terminate this Lease. Upon an
Event of Default, Landlord may, from time to time, without notice to you and
without prejudice to any other remedy available to Landlord, draw upon the
Letter of Credit to the extent necessary to make good any arrears of Rent or
other payments due Landlord hereunder, and any other damage, injury, expense or
liability caused by your default, and you shall pay to the issuer of the Letter
of Credit on demand by Landlord the amount so applied in order to restore the
Letter of Credit to its original amount. Provided that you have complied with
all of the terms and conditions of the Lease, the Letter of Credit will be
returned to you no later than 15 days after the expiration of the last day of
the fifth Lease Year of the primary term. If the Letter of Credit is in the form
of one year automatic renewals, and if the issuer decides not to renew the
Letter of Credit and if you fail to provide Landlord with a replacement Letter
of Credit (or, at your option, a cash security deposit in an amount equal to the
face amount of the required Letter of Credit) within fifteen days of the stated
expiry date of the Letter of Credit that is not being renewed, then the failure
to provide Landlord with a replacement Letter of Credit shall be an Event of
Default which can be cured solely by providing Landlord with the replacement
Letter of Credit and in addition to any other remedy available to Landlord under
this Lease, Landlord shall have the right to draw on the Letter of Credit until
such time as the replacement Letter of Credit is provided to Landlord.
Provided that no Event of Default then exists beyond the applicable grace
period, if any, on each Adjustment Date beginning with the Adjustment Date
corresponding to the first day of the second Lease Year, you shall be permitted
to substitute a replacement Letter of Credit in an amount equal to the Letter of
Credit amount then in effect prior to replacement minus $90,000. Upon Landlord's
receipt of a replacement Letter of Credit, Landlord will return to you the then
Letter of Credit that Landlord is holding.
5.01 PERMITTED USE. The Premises shall be used for the sole purpose of
the Permitted Use and for no other use or purpose. You shall at your own cost
and expense obtain any and all licenses and permits necessary for any such use.
The overnight parking of automobiles, trucks or other vehicles (other than
occasional overnight parking including the overnight parking of your company
limousines if necessary(1)) and the outside storage of any
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(1) Should there be occasional overnight parking or should you choose
to park your company limousines overnight, Landlord, the property manager and
any security service patrolling the Development shall not be liable for damage
or theft to the overnight parked vehicle or limousine, it being agreed and
understood that overnight
Landlord: Tenant: RDM
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property including trash or garbage is prohibited. You agree that you will, at
your own cost and expense keep your employees, agents, customers, invitees,
and/or licensees from parking on any streets running through or contiguous to
the Development. You agree that no washing of any type will take place outside
of the Premises including the truck apron and parking areas. You shall not
permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the Premises, nor take any other action which would
constitute a nuisance or would disturb or endanger any other tenants of the
Building or unreasonably interfere with such tenants' use of their respective
premises or permit any use which would adversely affect the reputation of the
Development. Notwithstanding the above, Landlord's property manager will
cooperate with you in attempting to arrange for a location within the Common
Areas acceptable to Landlord, in Landlord's sole and absolute discretion, where
you can wash your cars provided, however, that Landlord will not be obligated to
furnish water for that purpose.
6.01 TENANT'S TAXES. You shall be responsible to pay before delinquency
all franchise taxes, assessments, levies or charges measured by or based in
whole or in part upon the rents payable hereunder or your gross receipts and all
sales taxes and other taxes imposed upon or assessed by reason of the rents and
other charges payable hereunder.
7.01 TENANT'S PROPORTIONATE SHARE OF OPERATING COSTS. (a ) Beginning as
of the Rent Commencement Date and continuing during the primary and any extended
term of this Lease, you agree to pay to Landlord as additional rent, your
Proportionate share of Operating Costs. Any payments with respect to any partial
calendar year in which the term commences or ends shall be prorated. You agree
to pay $12,477.67 per month as an estimated amount for Operating Costs. Landlord
may, at any time, deliver to you its estimate (or revised estimate) of such
additional amounts payable under this Section for each calendar year. On or
before the first day of the next month and on or before the first day of each
month thereafter, you shall pay to Landlord as additional rent such amount as
Landlord reasonably determines to be necessary to bring and keep you current. As
soon as practicable after the close of each calendar year, Landlord shall
deliver to you a statement showing the total amount payable by you under this
Article. If such statement shows an amount due from you that is less than the
estimated payments previously paid by you, it shall be accompanied by a refund
of the excess to you or at Landlord's option the excess shall be credited
against the next monthly installment of Rent. If such statement shows an amount
due from you that is more than the estimated payments paid by you, you shall pay
the deficiency to Landlord, as additional rent. If an amount is due and is not
paid within thirty (30) days after the date of Landlord's statement to you, you
agree to pay a late fee of 10% of the unpaid balance. You or your
representatives shall have the right after seven (7) days prior written notice
to Landlord to examine Landlord's books and records of Operating Costs during
normal business hours within three hundred and sixty (360) days following the
furnishing of the statement to you. Unless you take written exception to any
item within three hundred and sixty (360) days following the furnishing of the
statement to you (which item shall be paid in any event), such statement shall
be considered as final and accepted by you. The taking of exception to any item
shall not excuse you from the obligation to make timely payment based upon the
statement as delivered by Landlord. If you timely take written exception to any
item, any dispute with respect to the written exception not resolved to the
mutual satisfaction of both Landlord and you within thirty (30) days following
Landlord's receipt of your written exception shall be resolved in accordance
with the following procedures. First, Landlord shall have seven days immediately
following the thirty day period to provide you with a list of three independent
certified public accountants. You shall then have seven days following you
receipt of the list of independent certified public accountants to designate one
of the three independent certified public accountants (hereinafter the "CPA")
and to
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parking is at risk of the person choosing to do so and you agree to indemnify
and hold Landlord harmless from and against any claims for damages resulting
from such overnight parking, including any claims that the indemnified party was
negligent in providing security.
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provide Landlord with written notice of your designation. If Landlord fails to
timely provide you with the list of three independent certified public
accountants, then you may select any independent certified public accountant you
wish to serve as the CPA. If you fail to timely designate one of the three
independent certified public accountants as the CPA, then Landlord may select
any independent certified public accountant it wishes to serve as the CPA. The
decision of the CPA shall be final and binding as to any dispute with respect to
your written exception and the cost of the CPA shall be paid for by the party
who does not prevail. For purposes of the preceding, (i) the term "independent
certified public accountant" means a certified public accountant who has not
previously rendered accounting services of any kind for either you or Landlord;
and (ii) Landlord will be deemed to have prevailed if the determination of the
CPA results in a reduction in your Proportionate share of Operating Costs which
is five percent or less of the Landlord's determination of your Proportionate
share of Operating Costs and you will be deemed to have prevailed if the
determination of the CPA results in a reduction in your Proportionate share of
Operating Costs which is more than five percent of the Landlord's determination
of your Proportionate share of Operating Costs.
(b) Notwithstanding anything in Section 7.01 to the contrary and
subsequent to the first stabilized year, the increase in your Proportionate
share of Controllable Operating Costs shall not exceed 5% from one year to the
next, on a cumulative basis. By way of example of what is meant by a cumulative
basis, if your Proportionate share of Controllable Operating Costs for calendar
year 2002 increased by 3% from calendar year 2001, then your maximum
Proportionate share of Controllable Operating Costs for calendar year 2003 would
be 107% of the calendar year 2002 amount.
8.01 TENANT'S OBLIGATIONS. You shall, at your own cost and expense,
keep and maintain all parts of the Premises in good condition, promptly making
all necessary repairs and replacement, whether ordinary or extraordinary, with
materials and workmanship of the same character, kind and quality as the
original, including but not limited to, interior windows, glass and plate glass,
doors, skylights, any special office entries, interior walls and finish work,
floors and floor coverings and water heaters. You, as part of your obligation
hereunder, shall keep the whole of the Premises in a clean and sanitary
condition. You will as far as possible keep all such parts of the Premises from
deteriorating, ordinary wear and tear excepted, and from falling temporarily out
of repair, and upon termination of this Lease in any way, you will yield up the
Premises to Landlord in good condition and repair, ordinary wear and tear
excepted and loss by fire or other casualty covered by insurance to be secured
pursuant to Article 15 excepted (but not excepting any damage to glass or loss
not reimbursed by insurance because of the existence of a deductible under the
appropriate policy). You shall not damage any dividing wall or disturb the
integrity and supports provided by any demising wall and shall, at your sole
cost and expense, properly repair any damage or injury to any demising wall
caused by you or your employees, agents or invitees. You shall, at your own cost
and expense, as additional rent, pay for the repair of any damage to the
Premises or the Building resulting from and/or caused in whole or in part by
your negligence or misconduct, or the negligence or misconduct of your agents,
servants, employees, patrons, customers, or any other person entering upon the
Building as a result of your business activities or caused by your default
hereunder.
9.01 LANDLORD'S OBLIGATIONS. (a) Landlord shall maintain the Common
Areas as well as common areas of the Development, the exterior windows, roof,
exterior walls in the Building, the mechanical, plumbing and electrical
equipment and life safety systems serving the Building, landscaping, and the
structure of the Building, itself, in reasonably good order and condition and
consistent with a Class A office building. Damage to the foregoing occasioned by
your acts will be repaired by Landlord at your expense. Landlord's liability
with respect to any defects, repairs, or maintenance or the curing of such
defect for which Landlord is responsible under the provisions of this Lease
shall be limited to the cost of such repairs or maintenance or the curing of
such defect. To the extent economically practical and feasible, Landlord will
attempt to perform its obligations under this Section 9.01(a) in a manner
reasonably designed to minimize interference with the conduct of your Permitted
Use.
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(b) Landlord agrees to furnish to the Premises janitorial
services during the times and in the manner that such services are, in
Landlord's reasonable judgement customarily furnished in comparable Class A
office buildings in the immediate market area. The cost of such janitorial
services will be included as part of the Operating Costs. You will not contract
for separate janitorial services without Landlord's written consent which may be
withheld in Landlord's sole discretion. Any such janitorial services contracted
for separately by you shall be at your sole cost, risk and responsibility.
(c) You will not, without the written consent of Landlord which
consent will not be unreasonably withheld, use any apparatus or device in the
Premises which will in any way increase the amount of electricity or water which
Landlord determines to be reasonable for use of the Premises as general office
space; nor connect with electrical current, except through existing electrical
outlets in the Premises, or with water pipes, any apparatus or device. If you
require water, electrical current or any other resource in excess of that
usually furnished, you shall first procure the consent of Landlord, which
Landlord may refuse, and if not already installed, the Landlord may cause a
special meter to be installed in the Premises, at your cost and expense, so as
to measure the amount of water, electric current or other resource consumed.
Notwithstanding anything in this paragraph to the contrary, electricity from the
Premises shall be paid for by you as set forth in Section 13.01 of this Lease.
(d) Interruptions of any service shall not be deemed an eviction
or disturbance of your use and possession of the Premises, or render Landlord
liable for damages by abatement of Rent or otherwise or relieve you from
performance of your obligations under this Lease unless such interruptions are
directly attributable to the grossly negligent or intentional acts of Landlord.
Should any equipment or machinery furnished by Landlord cease to function
properly, Landlord shall use reasonable diligence to repair the same.
Notwithstanding the terms of this Section 9.01, Landlord will repair and
maintain the HVAC system unless repairs are caused by your negligence.
(e) Subject to the other provisions of this Lease, you shall be
afforded twenty four hour a day, seven day a week access to the Premises. After
hours access to the Premises shall be by key card. You shall have the right to
restrict elevator access to the fourth floor of the Building by means of a card
or code access system installed or to be installed by Landlord in the Building
elevator system, provided, however, that the cost will be charged against the
Landlord's Contribution . If any other tenant of the Building desires to and
actually does utilize the card or code access system for its Premises, then
Landlord will collect from the tenant and reimburse to you an amount equal to
the cost of the card or code access system charged against the Landlord's
Contribution multiplied by a fraction the numerator of which is the rentable
square footage of such tenant's premises and the denominator of which is 75,000.
(f) Landlord will arrange for the provision of the following
security to the Building: (i) from 4:00 p.m. to 10:00 p.m. on Mondays through
Fridays, excluding, however, holidays; and (ii) weekend periodic verification
that the exterior doors are locked. Nothing contained herein shall be construed
to prohibit Landlord from increasing the security being provided to the Building
and all security costs are part of Operating Costs.
9.02 TENANT'S SELF HELP REMEDY. If Landlord fails to perform or to
commence to perform and to proceed diligently thereafter to completion, its
obligations under Section 9.01 within a commercially reasonable period of time
considering the failure of performance after written notice from you, then upon
advance written notice received from you, you may perform such obligations
yourself and seek reimbursement from Landlord for your actual cost to perform
the obligation.
10.01 ALTERATIONS. You agree that you will not make any alterations,
additions or improvements to the Premises (including, without limitation, the
roof and wall penetrations) without the prior written consent of
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Landlord, which consent will not be unreasonably withheld, conditioned or
delayed. If Landlord shall consent to any alterations, additions or improvements
proposed by you, you shall construct the same in accordance with all
governmental laws, ordinances, rules and regulations and all requirements of
Landlord's and your insurance policies and only in accordance with plans and
specifications approved by Landlord; and any contractor or person selected by
you to make the same. You may, without the consent of Landlord, but at your own
cost and expense and in good workmanlike manner erect such shelves, bins,
machinery and other trade fixtures as you may deem advisable, without altering
the basic character of the Building and without overloading the floor or
damaging the Building, and in each case after complying with all applicable
governmental laws, ordinances, regulations and other requirements. All shelves,
bins, machinery and trade fixtures installed by you may be removed by you prior
to the termination of this Lease if you so elect, and shall be removed by the
date of termination of this Lease or upon earlier vacating of the Premises if
required by Landlord; upon any such removal you agree to restore the Premises to
their original condition. All such removals and restoration shall be
accomplished in a good and workmanlike manner so as not to damage the primary
structure or structural quality of the Building. Notwithstanding the foregoing,
you may make without Landlord's prior consent but only after written notice to
Landlord, non-structural alterations which, in the aggregate, do not exceed
$50,000. As to any alteration that does not require Landlord's consent, you will
provide Landlord with advance notification of the making of the alteration.
11.01 SIGNS AND WINDOW TREATMENT. (a) You agree that you will not
install any signs upon the Building. Landlord will provide, at your request and
cost, Landlord's standard identification sign, which sign shall be removed by
you upon termination of this Lease at which time you shall restore the property
to the same condition as prior to installation of said sign. You shall not
install drapes, curtains, blinds or any window treatment without Landlord's
prior written consent. Landlord may from time to time require you to change its
signage to conform to a revised standard for the Building, provided Landlord
pays the cost of removing and replacing such signs. Landlord shall maintain all
signs and the cost thereof shall be charged to you.
(b) Notwithstanding anything in this Section 11.01 to the
contrary, you shall have the right, at your sole cost and expense (which will
not be considered part of the Interior Buildout Cost), to place illuminated
signage on the top south side exterior of the Building provided that such
signage is reasonably approved by Landlord and further provided that such
signage is approved by the City of Plantation and the Southpointe Property
Owners Association. Landlord agrees not to place any signage on the exterior of
the Building that is as or more prominent than your signage and Landlord agrees
not to place any signage on the top exterior south side face of the Building.
Subject to the condition that Landlord shall not be required to incur any
expense or cost, Landlord agrees to cooperate with you in your dealings with the
City of Plantation and the Southpointe Property Owner's Association and in any
contests arising from the refusal of the City of Plantation and/or the
Southpointe Property Owner's Association to approve your requested signage.
12.01 INSPECTIONS. For the purpose of ascertaining the condition of the
Premises or in order to make such repairs as may be required or permitted to be
made by Landlord under the terms of this Lease, Landlord and Landlord's agents
and representatives shall have the right to enter and inspect the Premises at
any time during business hours provided that except for emergencies (in which
case there will be no advance notice requirement), Landlord agrees to provide
you with at least twenty four hours advance notice. During the period that is
six (6) months prior to the end of the term hereof, Landlord and Landlord's
agents and representatives shall have the right to enter the Premises at any
reasonable time during business hours (after first providing you with at least
twenty four hours advance notice) for the purpose of showing the Premises. You
shall endeavor to give written notice to Landlord at least thirty (30) days
prior to vacating the Premises and you shall arrange to meet with Landlord for a
joint inspection of the Premises prior to vacating. If you fail to arrange such
joint inspection, Landlord's inspection at or after you vacate the Premises
shall be conclusively deemed correct for purposes of determining your
responsibility for repairs and restoration.
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13.01 UTILITIES. You agree to pay for all gas, heat, light, power,
telephone, and other utilities and services used on or from the Premises,
including without limitation, your proportionate share as determined by Landlord
for the use of such utilities which are not separately metered and any central
station signaling system installed in the Premises or the Building, together
with any taxes, penalties and surcharges or the like pertaining thereto and any
maintenance charges for utilities. Landlord shall in no event be liable for any
interruption or failure of utility services on or to the Premises. As part of
the Interior Buildout, you shall be permitted to install an electrical meter and
have your Premises separately metered by the applicable utility service
provider. In such event, there will be no charge to you for after hours HVAC
usage. Common area utilities will, in all cases, be part of Operating Costs.
14.01 ASSIGNMENT AND SUBLETTING. (a) You shall not have the right to
assign, sublet, transfer or encumber this Lease, or any interest therein,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, delayed or conditioned upon payment of any consideration.
Any attempted assignment, subletting, transfer or encumbrance by you in
violation of the terms and covenants of this Section shall be void. If Landlord
consents to an assignment or subletting, as a condition thereto which the
parties agree is reasonable, you shall pay to Landlord fifty percent (50%) of
any Transfer Premium. Any assignment, subletting or other transfer of your
interest in this Lease other than to an Affiliate shall be for an amount equal
to the then fair market value of such interest. These covenants shall run with
the land and shall bind you and your representatives in any bankruptcy
proceeding, successors and assigns. Any assignee, sublessee or transferee of
your interest in this Lease (all such assignees, sublessees and transferees
being hereinafter referred to as "successors"), by assuming your obligations
hereunder shall assume liability to Landlord for all amounts paid to persons
other than Landlord by such successors in contravention of this Paragraph. No
assignment, subletting or other transfer, whether consented to by Landlord or
not, shall relieve you of your liability and obligations hereunder. Upon the
occurrence of an "Event of Default" as hereinafter defined, if the Premises or
any part thereof are then assigned or sublet, Landlord, in addition to any other
remedies herein provided, as provided by law, may at its option collect directly
from such assignee or subtenant all rents becoming due to you under such
assignment or sublease and apply such rent against any sums due to Landlord for
you hereunder, and no such collection shall be construed to constitute a
novation or a release of you from the further performance of your obligations
hereunder.
(b) If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, 11 U.S.C. 101 et seq. (The "Bankruptcy
Code"), any and all monies or other considerations payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Landlord, shall be and remain the exclusive property of Landlord and shall not
constitute your property or of your estate within the meaning of the Bankruptcy
Code. Any and all monies or other considerations constituting Landlord's
property under the preceding sentence not paid or delivered to Landlord shall be
held in trust for the benefit of the Landlord and be promptly paid or delivered
to Landlord.
(c) Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code, shall be deemed, without further act
or deed, to have assumed all of the obligations arising under this lease on and
after the date of such assignment. Any such assignee shall upon demand execute
and deliver to Landlord an instrument confirming such assumption.
(d) An assignment or subletting of your interest in this Lease
without Landlord's specific written prior consent (where Landlord's consent is
required pursuant to the terms of this Lease) shall, at Landlord's option, be an
Event of Default curable after a ten day notice period or a non curable Event of
Default without the necessity of any notice or grace period. If Landlord elects
to treat such unconsented to assignment or subletting as a non curable Event of
Default, Landlord shall have the right to either (i) terminate this Lease, or
(ii) not terminate the Lease and to instead increase the monthly base rent to
the amount specified in Section 18.01 of this Lease as if
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you were holding over.
(e) Notwithstanding anything herein to the contrary, you shall
have the right to assign your leasehold interest in the Premises to an Affiliate
without Landlord's consent provided that (i) you provide Landlord with advance
written notice of the assignment; (ii) you provide Landlord, in advance, with
proof that the Affiliate has all insurance in place required to be maintained
under this Lease including naming Landlord as an additional insured; (iii) you
provide Landlord, in advance, with a fully executed assignment and assumption of
lease document reasonably acceptable to Landlord including an acknowledgement
that such assignment does not release you from liability; and (iv) you provide
Landlord with an administrative charge payment of $200.00 to reimburse Landlord
for the administrative and legal costs Landlord can reasonably be expected to
incur regarding such assignment. Any proceeds of an assignment to an Affiliate
shall be retained by you.
(f) Notwithstanding anything herein to the contrary, you shall
have the right to sublet all or a portion of the Premises to an Affiliate
without Landlord's consent provided that (i) you provide Landlord with advance
written notice of the subletting; (ii) you provide Landlord, in advance, with
proof that the Affiliate has all insurance in place required to be maintained
under this Lease including naming Landlord as an additional insured; (iii) you
provide Landlord, in advance, with a fully executed sublease reasonably
acceptable to Landlord; and (iv) you provide Landlord with an administrative
charge payment of $200.00 to reimburse Landlord for the administrative and legal
costs Landlord can reasonably be expected to incur regarding such subletting.
Any excess subletting rentals to an Affiliate shall be retained by you.
15.01 FIRE AND CASUALTY DAMAGE. (a) Landlord agrees to maintain
insurance covering the Building in an amount not less than the replacement cost
thereof, insuring against the perils of Fire, Lightning, Extended Coverage,
Vandalism and Malicious Mischief, extended by Special Extended Coverage
Endorsement to insure against all other Risks of Direct Physical Loss, such
coverages and endorsements to be as defined, provided and limited in the
standard bureau forms prescribed by the insurance regulatory authority for the
state in which the premises are situated for use by insurance companies admitted
in such state for the writing of such insurance on risks located within such
state. Subject to the provisions of subparagraph 15.01(e) below, such insurance
shall be for the sole benefit of Landlord and under its sole control.
(b) If the Building should be damaged or destroyed by fire,
tornado or other casualty, you shall give written notice thereof to Landlord.
(c) If the Building should be totally destroyed by fire, tornado
or other casualty, or if the Building should be so damaged thereby that
rebuilding or repairs of the Building including the Premises cannot reasonably
be expected to be completed within the Restoration Period, this Lease shall
terminate and the Rent shall be abated during the unexpired portion of this
Lease, effective upon the date of the occurrence of such damage.
(d) If the Building should be damaged by any peril covered by
insurance to be provided by Landlord under subparagraph 15.01(a) above, but only
to such extent that rebuilding or repairs can reasonably be expected to be
completed within the Restoration Period, this Lease shall not terminate, and
Landlord shall at its sole cost and expense thereupon proceed with reasonable
diligence to rebuild and repair the Building and the Premises to substantially
the condition in which they existed prior to such damage, except that Landlord
shall not be required to rebuild, repair or replace any part of the partitions,
fixtures, additions and other improvements which may have been placed in, on or
about the Premises by you and except that Landlord may elect not to rebuild if
such damage occurs during the last year of the term of the Lease exclusive of
any option which is unexercised at the time of such damage. If the Premises are
untenantable in whole or in part following such damage, the Rent payable
hereunder during the period in which they are untenantable shall be reduced to
such extent as may be fair and reasonable under all of the circumstances. If
Landlord should fail to complete such repairs and rebuilding within
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the Restoration Period, you may, at your option, terminate this Lease by
delivering written notice of termination to Landlord as your exclusive remedy,
whereupon all rights and or obligations hereunder shall cease and terminate.
Should construction be delayed because of changes, deletions, or additions in
construction requested by you, strikes, lockouts, casualties, acts of God, war,
material or labor shortages, governmental regulation or control or other causes
beyond the reasonable control of Landlord, the Restoration Period shall be
extended for the time Landlord is so delayed.
(e) Notwithstanding anything herein to the contrary, if the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such indebtedness,
then except in the case where, in your sole opinion, the Premises remains
tenantable and suitable for the conduct of your Permitted Use without any
abatement of Rent, Landlord shall have the right to terminate this Lease by
delivering written notice of termination ("Landlord's Notice") to you within
fifteen (15) days after such requirement is made by any such holder but in no
event later than sixty (60) days following the date of the casualty, whereupon
all rights and obligations hereunder shall cease and terminate unless and except
if you void any such termination by providing Landlord notice in writing (the
"Tenant's Notice') within fifteen days of your receipt of the Landlord's Notice,
the Tenant's Notice to specify that you have determined that the Premises
remains tenantable and suitable for the conduct of your Permitted Use without
any abatement of Rent. Time is of the essence as to all notices to be sent
pursuant to this Section. The provisions of this Subsection (e) shall only apply
if the insurance proceeds equal or exceed $500,000, or, if greater, the amount
of insurance proceeds specified in the then permanent financing mortgage
encumbering the Building which the Landlord has the automatic right to use to
reconstruct free of the right of the Superior Mortgagee to direct that the
proceeds instead be used to re-pay the mortgage loan.
(f) You and the Landlord each hereby release the other from any
loss or damage to property caused by fire or any perils insured in policies of
insurance covering such property, even if such loss or damage shall have been
caused by the fault or negligence of the other party, or anyone for whom such
party may be responsible; provided, however, that this release shall be
applicable and in force and effect only with respect to loss or damage occurring
during such times as the releasor's policies shall contain a clause or
endorsement to the effect that any such release shall not adversely affect or
impair said policies or prejudice the right of the releasor to recover
thereunder and then only to the extent of the insurance proceeds payable under
such policies. You and the Landlord each agree to request the insurance carriers
to include in its policies such a clause or endorsement. Notwithstanding the
preceding, if the damage or destruction to the Building was caused by your
negligence, then you agree, upon demand, to reimburse Landlord for the
deductible expended by Landlord under Landlord's policy of insurance to repair
or rebuild the Building or part thereof after such damage or destruction.
16.01 LIABILITY. (a) Landlord shall not be liable to you for any damage
to property on or about the Premises unless caused by or resulting from the
gross negligence or intentional wrongful act of Landlord or its agents, servants
or employees in the operation or maintenance of the Premises or the Development,
subject to the doctrine of comparative negligence in the event of contributory
negligence on your part or on the part of your agents, employees or servants. In
no case will a Superior Mortgagee be liable to you for injury, damage or loss
caused by Landlord, regardless of the cause. In those cases specified above
where Landlord is liable to you for damage to your property, Landlord's
liability is limited to the replacement value of the property damaged. In no
case will Landlord be liable to you for incidental or consequential damages or
for lost profits.
(b) You agree to indemnify Landlord and hold Landlord harmless
from and against all claims, actions, damages, liability, and expenses which may
arise in connection with bodily injury or loss of life to persons while at the
Premises if the injury or loss of life was occasioned totally or in part by any
negligent or wrongful intentional act by you or by your agents, contractors,
servants or employees. Your indemnification obligation under this paragraph
shall not, however, apply to those instances where the injury or loss of life
was
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due to the negligent or wrongful intentional act of Landlord.
(c) You agree to indemnify Landlord and hold Landlord harmless
from and against all claims, actions, damages, liability, and expenses which may
arise in connection with damage to the property of third persons if the property
is damaged while at the Premises and if the damage was occasioned totally or in
part by any negligent or wrongful intentional act by you or by your agents,
contractors, servants or employees. Your indemnification obligation under this
paragraph shall not, however, apply to those instances where the damage to third
persons property was due to the negligent or wrongful intentional act of
Landlord.
(d) In case a party (the "Indemnified Party") shall, without any
fault on its part, be made a party to any litigation commenced by or against the
other party (the "Indemnifying Party") in connection with the Premises, the
Indemnifying Party hereby agrees to hold the Indemnified Party harmless and
further agrees to pay all costs, expenses, and reasonable attorney's fees which
may be incurred by the Indemnified Party in connection with such litigation.
Notwithstanding, Landlord's obligation as an Indemnifying Party shall only apply
to those actions which arise while Landlord is the owner of the Building and
Landlord's obligations under this paragraph shall not be binding upon a Superior
Mortgagee.
(e) You shall procure and maintain throughout the term of the
Lease a policy or policies of insurance, at your sole cost and expense, insuring
both Landlord and you against all claims, demands or actions arising out of or
in connection with: (i) the Premises; (ii) the condition of the Premises; (iii)
your operations in and maintenance and use of the Premises; and (iv) your
liability assumed under this Lease, the limits of such policy or policies to be
in the amount of not less than $2,000,000 per occurrence in respect to injury to
persons (including death), and in the amount of not less than $250,000 per
occurrence in respect to property damage or destruction, including loss of use
thereof. All such policies shall be procured by you from responsible insurance
companies satisfactory to Landlord. Certified copies of such policies, together
with receipt evidencing payment of premiums therefore, shall be delivered to
Landlord prior to the Commencement Date. Not less than fifteen (15) days prior
to the expiration date of any such policies, certified copies of the renewal
thereof (bearing notations evidencing the payment of renewal premiums) shall be
delivered to Landlord. Such policies shall further provide that not less than
thirty (30) days written notice shall be given to Landlord before such policy
may be canceled or changed to reduce insurance provided thereby.
17.01 CONDEMNATION. (a) If the whole or any substantial part of the
Premises or Building should be taken for any public or quasi-public use under
governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof and the taking would prevent or materially
interfere with the use of the Premises or Building for the Purpose for which
they are then being used, this Lease shall terminate effective when the legal
taking shall occur as if the date of such taking were the date originally fixed
in the Lease for the expiration of the Term.
(b) If the part of the Premises or Building shall be taken for
any public or quasi-public use under governmental law, ordinance or regulation,
or by right of eminent domain, or by private purchase in lieu thereof, and this
Lease is not terminated as provided above, this Lease shall not terminate but
the Rent payable hereunder during the unexpired portion of this Lease shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances and Landlord shall undertake to restore the Premises to a
condition suitable for your use, as near to the condition thereof immediately
prior to such taking as is reasonably feasible under all the circumstances.
(c) If there is a taking or private purchase in lieu thereof, you
and Landlord shall each be entitled to receive and retain such separate awards
and/or portion of lump sum awards as may be allocated to their respective
interests in any condemnation proceedings; provided that you shall not be
entitled to receive any award for the
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loss of any improvements paid for by Landlord or for your loss of your leasehold
interest, the right to such award as to such items being hereby assigned by you
to Landlord. Notwithstanding, you shall have the right to pursue a a separate
award for the loss of your leasehold interest if but only if either the pursuit
or awarding of such a claim would not diminish any award to Landlord.
18.01 HOLDING OVER. You will, at the termination of this Lease by lapse
of time or otherwise, yield up immediate possession to Landlord with all repairs
and maintenance required herein to be performed by you completed. If Landlord
agrees in writing that you may hold over after the expiration or termination of
this Lease, unless the parties hereto otherwise agree in writing on the terms of
such holding over, the hold over tenancy shall be subject to termination by
Landlord at any time upon not less than thirty (30) days advance written notice,
or by you at any time upon not less than thirty (30) days advance written
notice, and all of the other terms and provisions of this Lease shall be
applicable during that period, except that you shall pay Landlord from time to
time upon demand, as rental for the period of any hold over, an amount equal to
the Holdover Rent, computed on a daily basis for each day of the hold over
period. If Landlord does not consent to your holdover, then you shall also pay
to Landlord all damages sustained by Landlord resulting from retention of
possession by you, including the loss of any proposed subsequent tenant for any
portion of the Premises. No holding over by you, whether with or without consent
of Landlord, shall operate to extend this Lease except as otherwise expressly
provided. The preceding provisions of this paragraph shall not be construed as
consent for you to hold over.
19.01 QUIET ENJOYMENT. Landlord represents and warrants that it is the
fee owner of the Building and that it has full right and authority to enter into
this Lease and that upon your payment of the rents herein set forth and
performing your other covenants and agreements herein set forth, you shall
peaceably and quietly have, hold and enjoy the Premises for the term without
hindrance or molestation from Landlord, subject to the terms and provisions of
this Lease. Landlord agrees to make reasonable efforts to protect you from
interference or disturbance by other tenants or third persons; however, Landlord
shall not be liable for any such interference or disturbance, nor shall you be
released from any of the obligations of this Lease because of such interference
or disturbance.
20.01 EVENTS OF DEFAULT. In addition to any other Event of Default
expressly provided for in this Lease, the following events shall be deemed to be
Events of Default by you under this Lease:
(a) If you fail to pay any installment of Rent herein reserved
when due, or any other payment or reimbursement to Landlord required herein when
due and such failure shall continue for a period of five (5) days from the date
such payment was due, provided, however, that with respect to the first two
failures only during any one calendar year, an Event of Default will not exist
unless you fail to make payment within five (5) days of written notice of non
payment.
(b) If you are generally not paying your debts as they become due
or if you admit in writing of the inability to pay debts or if you make a
general assignment for the benefit of creditors; or if you commence any case,
proceeding or other action seeking to have an order for relief entered on your
behalf as a debtor to adjudicate as being a bankrupt or insolvent, or seeking
reorganization or relief of debtors or seeking appointment of a receiver,
trustee, custodian or other similar official for you or for all or of any
substantial part of your property; or you take any action to authorize or in
contemplation of any of the actions set forth above in this paragraph; or
(c) If any case, proceeding or other action against you shall be
commenced seeking to have an order for relief entered against you as a debtor or
to adjudicate you as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of your debts
under any law relating to bankruptcy, insolvency, reorganization or relief of
debtors, or seeking appointment of a receiver, trustee,
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custodian or other similar official for you or for all or any substantial part
of your property, provided , however, that an Event of Default will not occur
pursuant to this paragraph if the case, action or proceeding is dismissed within
ninety days of the filing.
(d) Intentionally omitted
(e) If a receiver or trustee shall be appointed for all or
substantially all of your assets and the receiver or trustee is not dismissed
within ninety days following appointment.
(f) Omitted.
(g) If you fail to discharge or bond against any lien placed upon
the Premises in violation of Paragraph 25.01 hereof within twenty (20) days
after you know or reasonably should have known that any such lien or encumbrance
is filed against the Premises.
(h) If you fail to comply with any term, provision or covenant of
this Lease (other than the foregoing in this Paragraph 20.01), and shall not
cure such failure within twenty (20) days after receipt of written notice
thereof to you, provided, however, that if the nature of the breach is such that
it cannot be reasonably cured within such twenty day period, then the twenty day
period will be extended for up to an additional forty days provided that you are
continuously and diligently attempting to cure such breach.
20.02 REMEDIES. (a) Upon the occurrence of any Event of Default beyond
the applicable grace period, if any, specified in this Lease, Landlord shall
have the option to pursue any one or more of the following remedies without any
notice or demand whatsoever and without limiting or restricting any other right
or remedy which Landlord might have available under law unless otherwise
expressly provided for herein to the contrary;
(1) Terminate your right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and you
shall immediately surrender possession of the Premises to
Landlord, and if you fail so to do, Landlord may, without
prejudice to any other remedy which it may have for possession
or arrearages in Rent, commence an action for possession of
the Premises and, after obtaining an appropriate order, expel
or remove you and any other person who may be occupying the
Premises or any part thereof, without being liable for
prosecution or any claim of damages therefore.
(2) Maintain your right to possession of the Premises, in which
case this Lease shall continue in effect whether or not you
have abandoned the Premises. In such event, Landlord shall be
entitled to enforce all of Landlord's rights and remedies
under this Lease, including the right to recover Rent and any
other charge due under this Lease, as same becomes due.
(3) Enter upon the Premises, without being liable for prosecution
or any claim for damages therefore, and do whatever you are
obligated to do under the terms of this Lease; and you agree
to reimburse Landlord on demand for any expenses which
Landlord may incur in thus effecting compliance with your
obligations under this Lease, and you further agree that
Landlord shall not be liable for any damages resulting to you
from such action, whether caused by the negligence of Landlord
or otherwise.
(4) Intentionally omitted.
(5) Exercise any other right or remedy available to Landlord at
law or in equity provided, however,
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that any judgement awarding accelerated rent shall be subject
to the provisions of Section 20.02(f) of this Lease.
(b) Omitted.
(c) If you fail to pay any installment of Rent hereunder as when
such installment is due, or if you fail to pay when due any other payment
required to be paid by you to Landlord hereunder, to help defray the additional
cost to Landlord for processing such late payments, you agree to pay to Landlord
on demand a late charge in an amount equal to five (5%) percent of such
installment or required payment. The provision for such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder or at law and
shall not be construed as liquidated damages or as limiting Landlord's remedies
in any manner. Notwithstanding as to the first late payment only during any one
calendar year, the late charge will not be assessed if you pay the Rent
installment or other payment within five (5) days of your receipt of written
notice from Landlord advising that a late charge will become due if not paid.
(d) If your check, given to Landlord in payment, is returned by
the bank for non-payment, you agree to pay all expenses incurred by Landlord as
a result thereof.
(e) Exercise by Landlord of any one or more remedies hereunder
granted or otherwise available shall not be deemed to be an acceptance of
surrender of the Premises by you, whether by agreement or by operation of law,
it being understood that such surrender can be effected only by written
agreement between you and Landlord. No removal or other exercise of dominion by
Landlord over your property or others at the Premises shall be deemed
unauthorized or constitute a conversion, you hereby consenting, after any Event
of Default, to the aforesaid exercise of dominion over your property within the
Premises. All claims for damages by reason of such re-entry and/or repossession
are hereby waived, as are all claims for damages by reason of any legal process.
You agree that any re-entry by Landlord may be pursuant to judgement obtained in
a legal proceeding and Landlord shall not be liable for trespass or otherwise.
(f) If Landlord elects to terminate the Lease by reason of an
Event of Default, then notwithstanding such termination, you shall be liable for
and shall pay to Landlord, at the address specified for notice to Landlord
herein, the sum of all Rent and other indebtedness accrued to date of such
termination, plus, as damages, an amount equal to the present value of the total
Rent hereunder for the remaining portion of the term (had such term not been
terminated by Landlord prior to the date of expiration. For these purposes,
present value will be determined by using an eight percent discount factor.
Landlord agrees that any final judgement for damages that it obtains pursuant to
this paragraph will contain a restriction that will prohibit Landlord from
enforcing collection on the portion of the judgement amount attributable to the
discounted amount of accelerated Rent that is more than twelve months from the
date of collection, e.g., if the judgement amount includes accelerated Rent for
36 months, discounted, then Landlord would initially be entitled to only take
collection action with respect to one-third of the portion of the judgement
amount attributable to accelerated Rent, and each succeeding month thereafter
Landlord would be entitled to only take collection action with respect to an
additional one-thirty sixth (1/36) of the portion of the judgement amount
attributable to accelerated Rent. Any final judgement obtained pursuant to this
paragraph shall include any provision required by law regarding an accounting
for subsequent rents collected, provided, however, in no event shall you be
entitled to any excess of any rental obtained by reletting over and above the
rental herein reserved.
(g) If Landlord elects to repossess the Premises without
terminating the Lease, then you shall be liable for and shall pay to Landlord,
at the address specified for notice to Landlord herein, all Rent and other
indebtedness accrued to the date of such repossession, plus Rent required to be
paid by you to Landlord during the remainder of the term until the date of
expiration of the term diminished by any net sums thereafter received by
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Landlord through reletting the Premises during said period (after deducting
expenses incurred by Landlord as provided in subparagraph 20.02(h). In no event
shall you be entitled to any excess of any rental obtained by reletting over and
above the rental herein reserved. Actions to collect amounts due by you to
Landlord under this subparagraph may be brought from time to time, on one or
more occasions, without the necessity of Landlord's waiting until the expiration
of the term.
(h) In case of any Event of Default resulting in Landlord
regaining possession of the Premises, you shall also be liable for and shall pay
to Landlord, at the address specified for notice to Landlord herein, in addition
to any sum provided to be paid above, brokers' fees incurred by Landlord in
connection with reletting the whole or any part of the Premises; the costs of
removing and storing your property or the property of any other occupant; the
costs of repairing, altering, remodeling or otherwise putting the Premises into
condition acceptable to a new tenant or tenants (but not including the cost of
tenant improvements for a new tenant), and all reasonable expenses incurred by
Landlord in enforcing or defending Landlord's rights and/or remedies including
reasonable attorney's fees and court costs, investigation costs, costs of
appeal, and all other expenses incurred by Landlord, whether or not suit is
actually filed.
(i) Upon a termination or repossession of the Premises for an
Event of Default, Landlord shall not have any obligation in excess of any
obligation imposed under Florida law to relet or to attempt to relet the
Premises, or any portion thereof, or to collect rental after reletting; and in
the event of reletting, Landlord may relet the whole or any portion of the
Premises for any period to any tenant and for any use and purpose.
(j) If you fail to make any payment or cure any default hereunder
within the time herein permitted, Landlord, without being under any obligation
to do so and without thereby waiving such default, may make such payment and/or
remedy such other default for your account (and enter the Premises for such
purpose), and thereupon you shall be obligated to, and hereby agree, to pay
Landlord upon demand, all costs, expenses and disbursements (including
reasonable attorney's fees) incurred by Landlord in taking such remedial action.
(k) If Landlord shall have taken possession of the Premises
pursuant to the authority herein granted then Landlord shall have the right to
keep in place and use all of the furniture, fixtures and equipment at the
Premises, including that which is owned or leased to you at all times prior to
repossession thereof by any lessor thereof or third party having a lien thereon.
Landlord shall also have the right to remove from the Premises (without the
necessity of obtaining a distress warrant, writ of sequestration or other legal
process) all or any portion of such furniture, fixtures, equipment and other
property located thereon and to place same in storage at any premises within the
County in which the Premises is located; and in such event, you shall be liable
to Landlord for costs incurred by Landlord in connection with such removal and
storage. Landlord shall also have the right to relinquish possession of all or
any portion of such furniture, fixtures, equipment and other property to any
person ("claimant") claiming to be entitled to possession thereof who presents
to Landlord a copy of any instrument represented to Landlord by Claimant to have
been executed by you (or a predecessor Tenant) granting Claimant the right under
various circumstances to take possession of such furniture, fixtures, equipment
or other property, without the necessity on the part of Landlord to inquire into
the authenticity of said instrument's copy of your's or your predecessor's
signature(s) thereon and without the necessity of Landlord making any nature of
investigation or inquiry as to the validity of the factual or legal basis upon
which Claimant purports to act; and you agree to indemnify and hold Landlord
harmless from all cost, expense, loss, damage and liability incident to
Landlord's relinquishment of possession of all or any portion of such furniture,
fixtures, equipment or other property to Claimant. Any and all property which
may be removed from the Premises by Landlord pursuant to the authority of this
Lease or of law, to which you are or may be entitled, may be handled, removed
and stored, as the case may be, by or at the direction of Landlord at your risk,
cost and expense, and Landlord shall in no event be responsible for the value,
preservation or safekeeping thereof. You shall pay to Landlord, upon demand, any
and all expenses incurred in such removal and all storage charges against such
property so long as the same shall be in
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Landlord's possession or under Landlord's control. Any such property of yours
not retaken by you from storage within thirty (30) days after the removal from
the Premises shall conclusively be presumed to have been conveyed by you to
Landlord under this Lease as a bill of sale without further payment or credit by
Landlord to you. The rights of Landlord herein stated shall be in addition to
any and all other rights which Landlord has or may hereafter have at law or in
equity; and you stipulate and agree that the rights herein granted Landlord are
commercially reasonable.
21.01 RIGHTS RESERVED TO LANDLORD. Landlord reserves and may exercise
the following rights without affecting your obligations hereunder:
(a) To change the name or the street address of the Building or
the Development provided that Landlord provides you with at least ninety days
advance written notice and further provided that Landlord reimburses you for
your reasonable out of pocket costs incurred to change your stationary, business
cards brochures or similar items and for the cost of printing and mailing change
of address announcements;
(b) To install and maintain a sign or signs on the exterior of
the Building (subject to the provisions of Section 11.01(b)) or the Development;
(c) To designate all sources furnishing sign painting and
lettering used on the Building;
(d) To retain at all times pass keys to the Premises provided
that Landlord will allow you to reserve the right to designate certain secure
areas of the Premises for which no key (or access card) will be provided to
Landlord;
(e) To grant to anyone the exclusive right to conduct any
particular business or undertaking provided that such exclusivity right does not
materially adversely interfere with your Permitted Use of the Premises;
(f) To change the arrangement and/or location of entrances and
corridors in and to the Building and to add, remove, rename or modify buildings,
roadways, parking areas, walkways, landscaping, lakes, grading and other
improvements in or to the Development provided that such action is consistent
with the maintenance and operation of the Building as a Class A building and
provided that such action does not materially adversely interfere with your
Permitted Use of the Premises or access to the Building, Premises or parking
areas.
22.01 INTENTIONALLY OMITTED.
23.01 WAIVER OF LANDLORD'S LIEN RIGHTS. Landlord waives its statutory
lien rights that Landlord might otherwise be entitled to under Section 83.08,
Florida Statutes, or any successor provision of law. Nothing contained in this
waiver, shall, however, be construed to be a waiver of the right to assert that
property in the Premises is a fixture that has become part of the Premises.
24.01 SUBORDINATION. You are accepting this Lease subject and
subordinate to any mortgage and/or deed of trust now or at any time hereafter
constituting a lien or charge upon the Building or the Premises, without the
necessity of any act or execution of any additional instrument of subordination;
provided, however, that if the mortgagee, trustee, or holder of any such
mortgage or deed of trust elects to have your interest in this Lease superior to
any such instrument, then by notice to you from such mortgagee, trustee or
holder, this Lease shall be deemed superior to such lien, whether this Lease was
executed before or after said mortgage or deed of trust. You shall at any time
hereafter on demand execute any instruments, releases or other documents which
may be required by any Superior Mortgagee for the purpose of evidencing the
subjection and subordination of this Lease
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to the lien of any such mortgage or for the purpose of evidencing the
superiority of this Lease to the lien of any such mortgage as may be the case.
Further, you agree to attorn to the holder(s) of any such mortgages upon any
Superior Mortgagee foreclosing on the Premises or otherwise taking title and/or
possession of the Premises.
Notwithstanding the preceding, your subordination obligation is conditioned on
the Superior Mortgagee agreeing in writing that during the term of this Lease
and any extended term thereof, so long as you are not in default under this
Lease, your possession of the Premises shall not be disturbed and your rights
and privileges under this Lease shall not be diminished or interfered with by
the Superior Mortgagee upon any proceeding to foreclose a mortgage, and the
Superior Mortgagee will not join you as a party defendant in any proceeding to
foreclose the mortgage for the purpose of terminating the Lease.
No act or failure to act on the part of Landlord which would entitle you, under
the express terms of this Lease or by law, to be relieved of your obligations
under this Lease or to terminate this Lease, shall result in a release of such
obligations or a termination of this Lease unless: (i) You have given notice by
certified mail, return receipt requested, to the Superior Mortgagee; and (ii)
you offer the Superior Mortgagee an opportunity to cure such default within
thirty (30) days next following receipt of such notice, or if such default
cannot be cured within thirty days, to commence to cure the default within the
thirty day period and to proceed diligently thereafter to cure the default.
25.01 MECHANICS LIENS. (a) You (the Tenant) shall have no authority,
express or implied, to create or place any lien or encumbrance of any kind or
nature whatsoever upon, or in any manner to bind the interests of Landlord in
the Premises or to charge the rentals payable hereunder for any claim in favor
of any person dealing with you, including those who may furnish materials or
perform labor for any construction or repairs and nothing contained in this
Lease shall be construed as a consent on the part of the Landlord to subject the
estate of the Landlord to liability under the Construction Lien Law of the State
of Florida, it being expressly understood that the Landlord's estate shall not
be subject to liens for improvements made by you and each such claim shall
affect and each such lien shall attach to, if at all, only the leasehold
interest granted to you by this instrument. You covenant and agree that you will
pay or cause to be paid all sums legally due and payable by you on account of
any labor performed or materials furnished in connection with any work performed
on the Premises on which any lien is or can be validly and legally asserted
against your leasehold interest in the Premises or the improvements thereon and
that you will save and hold Landlord harmless from any and all loss, cost or
expense based on or arising out of asserted claims or liens against the
leasehold estate or against the right, title and interest of the Landlord in the
Premises or under the terms of this Lease. You agree to give Landlord immediate
written notice if any lien or encumbrance is placed on the Premises.
(b) Notwithstanding any provision of this Lease relating to
improvements, additions, alterations, repairs or reconstruction of or to the
Premises, you and the Landlord each agree and confirm that: (i) Landlord has not
consented nor will Landlord ever consent to the furnishing of any labor or
materials to the Premises that would or may result in any mechanic's or
materialman's lien attaching to Landlord's interest in the Premises; (ii) You
are not the agent of Landlord for the purposes of any such improvements,
additions, alterations, repairs or reconstruction; and (iii) except as expressly
provided herein, Landlord has retained no control over the manner in which any
such improvements, additions, alterations, repairs or reconstruction are
accomplished, and has made no agreement to make or be responsible for any
payment to or for the benefit of any person furnishing labor or materials in
connection therewith. No one furnishing labor or materials to or for your
account shall be entitled to claim any lien against the interest of Landlord in
the Premises and such entities shall look solely to you and your leasehold
interest under this Lease for the satisfaction of any such claims.
(c) You shall be liable for all taxes levied or assessed against
personal property, furniture or fixtures placed by you in the Premises. If any
such taxes for which you are liable are levied or assessed against Landlord
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or Landlord's property and if Landlord elects to pay the same or if the assessed
value of Landlord's property is increased by inclusion of personal property,
furniture or fixtures placed by you in the Premises, and Landlord elects to pay
the taxes based on such increase, you shall pay to Landlord upon demand that
part of such taxes.
26.01 NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivery of any notice or the making of any payment
shall be deemed to be complied with when and if the following steps are taken:
(a) All Rent and other payments required to be made by you to
Landlord shall be payable to: Crossroads Business Park Associates or to such
other entity at the such other address as Landlord may specify from time to time
by written notice delivered in accordance herewith. Notwithstanding anything
herein to the contrary, if the Building is encumbered by an assignment of leases
and rents made by Landlord and recorded in the Public Records of the County in
which the Building is located, then upon the written demand of the lender named
in such assignment of leases and rents or the successor in interest to such
lender (hereinafter the "Lender"), then in such event you agree to pay all Rent
and other payments required to be made by you hereunder to such Lender and
Landlord agrees that you will be credited by Landlord for any payments so made.
(b) Any notice or document required or permitted to be delivered
hereunder shall be in writing and shall be deemed to be delivered, whether
actually received or not, on the third day after deposit in the United States
Mail, postage prepaid, Certified or Registered Mail, addressed to the parties
hereto at the respective addresses set out below, or at such other address as
they have theretofore specified by written notice delivered in accordance
herewith: (a) if to Landlord c/o Premier Commercial Realty, Inc., 2100 Park
Central Boulevard North, Suite 900, Pompano Beach, Florida 33064; and (b) if to
you at the Premises address, provided, however, that prior to the Rent
Commencement Date, your notice address shall be 1505 N.W. 167 Street, Miami,
Florida 33169, attn.: Chief Legal Officer. Wherever Landlord is required to
provide you with notice, Landlord will attempt to also provide your attorneys
with a copy of such notice, provided, however, that the failure of Landlord to
so so will not render the notice to you defective. Your attorney's notice
address is Bilzin Sumberg Dunn Price & Axelrod LLP, 2500 First Union Financial
Center, 200 South Biscayne Boulevard, Miami, Florida 33131, attn.: Alan D.
Axelrod, or such other address as you from time to time direct.
If and when included within the term "Landlord", or "Tenant", as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address for the receipt of notices
and payments. All parties included within the terms "Landlord" and "Tenant"
respectively, shall be bound by notices given in accordance with the provisions
of this paragraph to the same effect as if each had received such notice.
27.01 MISCELLANEOUS. (a) Words of any gender used in this Lease shall
be held or construed to include any other gender, and words in the singular
number shall be held to include the plural, unless the context otherwise
requires.
(b) The terms, provisions and covenants and conditions contained
in this Lease shall apply to, inure to the benefit of, and be binding upon, the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly provided.
Landlord shall have the right to assign any of its rights and obligations under
this Lease and Landlord's grantee or Landlord's successor, as the case may be,
shall upon such assignment, become Landlord hereunder and shall be deemed to
have assumed Landlord's obligations under this Lease arising from and after the
date of such assignment, thereby freeing and relieving the grantor or assignor,
as the case may be, of all covenants and obligations of Landlord hereunder
thereafter accruing. Each party agrees to furnish to the other, promptly upon
demand, a corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of
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such party to enter into this Lease. Nothing herein contained shall give any
other tenant in the Building any enforceable rights either against Landlord or
you as a result of the covenants and obligations of either party set forth
herein. If there is more than one tenant, your obligation shall be joint and
several. Any indemnification of, insurance of, or option granted to Landlord
shall also include or be exercisable by Landlord's agents and employees.
(c) The captions inserted in this Lease are for convenience only
and in no way define, limit or otherwise describe the scope or intent of this
Lease, or any provision hereof, or in any way affect the interpretation of this
Lease.
(d) In the event of any default by Landlord, your exclusive
remedy shall be an action for damages or for specific performance, but prior to
any such action you must give Landlord written notice specifying such default
with particularity, and Landlord shall thereupon have thirty days in which to
commence to cure such default and proceed diligently thereafter to cure such
default. Unless and until Landlord fails to commence to cure such default with
such thirty day period and to proceed diligently thereafter to cure such
default, you shall not have any remedy or cause of action by reason thereof. It
is expressly understood and agreed that nothing in this Lease shall be construed
as creating any liability against Landlord, or its successors and assigns,
personally, and in particular without limiting the generality of the foregoing,
there shall be no personal liability to pay any indebtedness accruing hereunder
or to perform any covenant, either express or implied, herein contained, and
that all personal liability of landlord, or its successors and assigns, of every
sort, if any, is hereby expressly waived by you, and that so far as Landlord, or
its successors and assigns is concerned you shall look solely to the Building
for the payment thereof or to the proceeds of the Building resulting from
condemnation, casualty or sale, subject, however to the Superior Mortgagee's
rights in condemnation or casualty proceeds .
(e) This Lease constitutes the entire understanding and agreement
between you and the Landlord with respect to the subject matter of this Lease,
and contains all of the covenants and agreements of Landlord and you with
respect thereto. You and the Landlord each acknowledge that no representations,
inducements, promises or agreements, oral or written, have been made by Landlord
or you, or anyone acting on behalf of Landlord or you, which are not contained
herein, and any prior agreements, promises, negotiations, or representations not
expressly set forth in this Lease are of no force or effect. This Lease may not
be altered, changed or amended except by an instrument in writing signed by both
parties hereto.
(f) All of your obligations not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term, including without limitation, all
payment obligations with respect to Operating Costs and all obligations
concerning the condition of the Premises. Upon the expiration or earlier
termination of the term, and prior to you vacating the Premises, Landlord and
you shall jointly inspect the Premises and you shall pay to Landlord any amount
estimated by Landlord as necessary to put the Premises in good condition and
repair, ordinary wear and tear excepted. Any work required to be done by you
prior to your vacation of the Premises which has not been completed upon such
vacation, shall be completed by Landlord and billed to you at cost plus fifteen
percent. You shall also, prior to vacating the Premises, pay to Landlord the
amount, as estimated by Landlord, of your obligation hereunder for Operating
Costs. All such amounts shall be used and held by Landlord for payment of your
obligations hereunder, with you being liable for any additional costs therefore
upon demand by Landlord, or with any excess to be returned to you after all such
obligations have been determined and satisfied, as the case may be.
(g) If any clause, provision or portion of this Lease or the
application thereof to any person or circumstance shall be invalid or
unenforceable under applicable law, such event shall not affect, impair or
render invalid or unenforceable the remainder of this Lease nor any other
clause, phrase, provision or portion hereof, nor shall if affect the application
of any clause, phrase, provision or portion hereof to other persons or
circumstances,
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and it is also the intention of the parties to this Lease that in lieu of each
such phrase, provision or portion of this Lease that is invalid or
unenforceable, there be added as a part of this Lease, a clause, phrase,
provision or portion which is valid.
(h) Submission of this Lease shall not be deemed to be a
reservation of the Premises. Landlord shall not be bound hereby until its
delivery to you of an executed copy hereof signed by Landlord, already having
been signed by you, and until such delivery Landlord reserves the right to
exhibit and lease the Premises to other prospective tenants. Notwithstanding
anything contained herein to the contrary Landlord may withhold delivery of
possession of the Premises from you until such time as you have paid to Landlord
the first month's Rent as required hereunder, and any other sums required
hereunder.
(i) Whenever a time period is prescribed for action to be taken
by a party, such party shall not be liable or responsible for, and there shall
be excluded from the computations for any such time period, any delays due to
causes beyond the control of such party, provided, however, that nothing
contained in this paragraph shall be construed to extend the Rent Commencement
Date or the date of payment of any Rent or any other payment required to be paid
pursuant to this Lease.
(j) Each party agrees from time to time within ten (10) days
after request of the other party, time being of the essence and without
application of any grace period, to deliver to the requesting party or the
designee of the requesting party, an estoppel certificate stating that this
Lease is in full force and effect, the date to which Rent has been paid, the
expired term of this Lease, and such other matters pertaining to this Lease as
may be reasonably requested by such party. It is intended that any estoppel
certificate delivered pursuant to this Section may be relied upon by the person
to whom such estoppel certificate is addressed.
(k) You represent and warrants that you have dealt with no
broker, agent or other person in connection with this transaction, and that no
broker, agent or other person brought about this transaction, other than
Landlord's Broker and Tenant's Broker and you agree to indemnify and hold
Landlord harmless from and against any and all claims to pay any other broker,
agent or other person claiming a commission or other form of compensation by
virtue of having dealt with you with regard to this leasing transaction.
(l) Landlord and you each waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties against the other on
any matter arising out of or in any way connected with this Lease, the
relationship of Landlord and you or your use and occupancy of the Premises.
(m) You shall faithfully observe and comply with the rules and
regulations attached to this Lease as EXHIBIT D and all reasonable modifications
thereof and additions thereto from time to time put in to effect by Landlord
provided that Landlord provides you with advance written notice of any
modifications or additions to the rules and regulations. Landlord shall not be
responsible for the non performance by any other tenant or occupant of the
Building of any said rules and regulations but Landlord agrees to enforce such
rules and regulations with respect to all tenants of the Building other than as
may be expressly provided to the contrary in such tenant's Lease. If there is a
conflict between an express provision of this Lease and the rules and
regulations, then the express provision of this Lease shall control.
Notwithstanding anything in the Rules and Regulations now or hereafter
promulgated to the contrary, (i) there will be no prohibition against you
installing a vending machine(s) within the Premises (but not in the Common
Areas) and there shall be no prohibition against occasional barbering or
bootblacking services within the Premises; (ii) microwave cooking within the
Premises will be permitted provided that the microwave cooking does not emit
objectionable odors and does not create an unreasonable fire hazard; (iii) you
shall be permitted to drive nails, screws and/or drill in to the partitions,
woodwork or plaster provided that it is in connection with the decoration of
your Premises and provided that at Lease expiration or termination you repair
all holes caused by the nailing, screwing and/or drilling; (iv) Rule 32
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of the current Rules and Regulations or any corresponding replacement rule or
revision will not be a part of this Lease;
28.01 COMPLIANCE WITH PUBLIC ACCOMMODATION LAWS. You assume all
responsibility for compliance of the Premises with any and all Public
Accommodation Laws. You agree to complete any and all alterations, modifications
or improvements to the Premises necessary in order to comply with all Public
Accommodation Laws during the term of this Lease whether such improvements or
modifications are the legal responsibility of the Landlord, you or a third
party. You agree to indemnify, defend and hold harmless Landlord from and
against any and all claims, liabilities, fines, penalties, losses and expenses,
including attorneys fees, arising in connection with your failure to comply with
the provisions of this Section. Landlord assumes all responsibility for
compliance of the shell Building, the Common Areas and the fourth floor
restrooms constructed by Landlord with any Public Accommodation Laws. Landlord
agrees to indemnify, defend and hold you harmless from and against any and all
claims, liabilities, fines, penalties, losses and expenses, including attorneys
fees, arising in connection with Landlord's failure to comply with the
provisions of this Section, provided, however, that such indemnification and
hold harmless obligation shall not be binding upon a Superior Mortgagee.
29.01 ENVIRONMENTAL MATTERS. You hereby agree that: (i) no activity
will be conducted on the Premises that will produce any Hazardous Substance,
except for such activities that are part of the ordinary course of your business
(the "Permitted Activities") provided said Permitted Activities are conducted in
accordance with all Environmental Laws and have been expressly approved in
advance in writing by Landlord (other than in the permitted use clause of this
Lease); (ii) the Premises will not be used in any manner for the storage of any
Hazardous Substances except for the temporary storage of such materials that are
used in the ordinary course of your business (the "Permitted Materials")
provided such Permitted Materials are properly stored in a manner and location
meeting all Environmental Laws and approved in advance in writing by Landlord;
(iii) no portion of the Premises or the common areas of the Development will be
used as a landfill or dump; (iv) You will not install any underground tanks of
any type in the common areas of the Development; (v) You will not allow any
surface or subsurface conditions to exist or come into existence that
constitute, or with the passage of time may constitute, a public or private
nuisance; (vi) You will not permit any Hazardous Substances to be brought onto
the Premises, except for the Permitted Materials described below and if so
brought or found located thereon, the same shall be immediately removed, with
proper disposal, and all required cleanup procedures shall be diligently
undertaken pursuant to all Environmental Laws. If, at any time during or after
the term of this Lease, the Premises is found to be so contaminated or subject
to said conditions, you agree to indemnify and hold Landlord harmless from all
claims, demands, actions, liabilities, costs, expenses, damages and obligations
of any nature arising from or as a result of the use of the Premises by you. The
foregoing indemnification shall survive the termination or expiration of this
Lease.
Landlord represents and warrants to you that it has no actual knowledge that the
Building and the Development is currently not in compliance with all Hazardous
Materials Laws and that it has no actual knowledge that the Building was
constructed using any friable asbestos. The foregoing shall not be binding on a
Superior Mortgagee.
29.02 RADON GAS. Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from
your county public health unit.
30.01 RIGHT OF FIRST OFFER. If space becomes vacant or is scheduled to
become vacant on the second or third floor of the Building at any time prior to
the last day of the fifth Lease Year, Landlord agrees to notify you that the
space is vacant or will become vacant and Landlord agrees to offer to Lease such
space to you. You shall
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have seven days from your receipt of the offer to advise Landlord whether you
desire to lease the offered space. Failure to respond within the seven days
shall be deemed to be an irrevocable waiver of the right to exercise such offer,
time being of the essence, in which event Landlord will be free to lease the
vacant space upon such terms and conditions as Landlord desires. If you timely
exercise the right of first offer granted herein with respect to such offered
space, then an amendment to this Lease will be executed by the parties amending
the Lease to include the offered space as part of the Premises for the remainder
of the Lease term, in as is condition, with base rent being at ninety percent of
Market Rent, with annual increases consistent with the increases to match the
current Lease and with increases at the beginning of an extended term to match
the current Lease.
31.01 MOVING COST ALLOWANCE. Within thirty days following the Rent
Commencement Date, Landlord will pay to you a moving cost allowance of $25,000.
32.01 ROOFTOP RIGHTS. At no rental cost to you, during the term of this
Lease and provided that you are not then in default beyond the applicable grace
period, if any, you shall have the non exclusive right to install and maintain
on the Building's roof, an antenna and/or satellite dish. The location of the
installation shall be at a location reasonably approved in advance by Landlord.
Any costs associated with the installation and maintenance shall be your
responsibility, including any applicable permit costs. All such installations
shall be in accord with applicable codes, regulation, rules and ordinances and
you shall pay for Landlord's roofer to observe the installation. Any antenna or
satellite dish installed pursuant to this Section must be removed by you at your
sole cost and expense at the termination or expiration of the Lease including
the cost of Landlord's roofer inspecting the removal.
33.01 SMOKE FREE BUILDING. Landlord agrees that the Building will be a
"no smoking building" and Landlord will enforce restrictions against smoking
except in designated smoking areas outside of the Building in an area(s)
selected by landlord. Designated smoking area(s) will not be in the front entry
way of the Building.
34.01 NON EXCLUSIVE PARKING. Landlord represents and warrants to you
that the number of combined non exclusive parking spaces available for the
Building and Crossroads Business Park Building One is approximately 960 parking
spaces, exclusive of handicapped parking spaces. Landlord agrees that it will
not reduce the Building's non exclusive parking spaces below 95% of the amount
in existence on the Effective Date without your written consent, provided,
however, that the foregoing will not apply to reductions resulting from actions
under Section 17.01 or actions resulting from a requirement of the City of
Plantation or Broward County unrelated to a request made by Landlord, e.g., the
foregoing would apply if the City of Plantation imposed a reduction of parking
space requirement in connection with Landlord's request for further improvement
of the Development . Landlord will not consent to the use of the Building's
non-exclusive parking spaces by the owners or tenants of any of Parcels 1, 4,
and/or 8 of JACARANDA Parcel 817.
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[EXECUTION PAGE IMMEDIATELY FOLLOWS]
Landlord: Tenant: RDM
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29
<PAGE> 32
Each and every term and provision of this Lease and all exhibits attached
hereto, is agreed to by you, the Tenant, on 7/19 , 1999.
-----------
Precision Response Corporation,
a Florida corporation
(Witnesses as to Tenant)
/s/ Cindy Sandor
- -----------------------------
/s/ Esther Hernandez
- -----------------------------
By: /s/ Richard D. Mondre
---------------------------------
Print Name: Richard D. Mondre
-------------------------
Print Title: Executive Vice President
-----------------------
Each and every term and provision of this Lease and all exhibits attached
hereto, is agreed to by the Landlord on 7/20 , 1999.
-----------
Crossroads Business Park Associates,
a Florida general partnership
By: Argent Point, Inc., a Florida
corporation as an authorized
general partner
(Witnesses as to Landlord)
/s/ Tracey Gordon
- -----------------------------
/s/ Daphne M. Veloz
- -----------------------------
By: /s/ Jack Azout
---------------------------------
Jack Azout, president
By: Sterling Point, Inc., a Florida
corporation as an authorized
general partner
/s/ Tracey Gordon
- -----------------------------
/s/ Daphne M. Veloz
- -----------------------------
By: /s/ Issac Sredni
---------------------------------
Index of Exhibits attached to this Lease:
Building Legal Description .......... Exhibit A
N/A and none included ............... Exhibit B
Construction Work Letter ............ Exhibit C
Rules and Regulations ............... Exhibit D
Landlord: Tenant: RDM
----------- -------------
30
<PAGE> 33
EXHIBIT A
LEGAL DESCRIPTION OF
CROSSROADS BUSINESS PARK BUILDING TWO
A portion of Parcels 2 and 3, JACARANDA PARCEL 817, according to the Plat
thereof as recorded in Plat Book 143, Page 1 of the Public Records of Broward
County, Florida, described as follows:
Commence at the northwest corner of Parcel 3, thence S60 degrees 51'07" East,
along the north line of Parcel 3, a distance of 468.15 feet to the POINT OF
BEGINNING,
thence continue S60 degrees 5 1'07" East, 563.31 feet;
thence S88 degrees 52'50" West, 236.19 feet;
thence S01 degrees 07'10" East, 509.81 feet to a point on the arc of a
non-tangent curve, concave to the northeast, a radial line to said point bears
South 12 degrees 06'02" West;
thence Westerly along the arc of said curve, having a radius of 241.00 feet and
a central angle of 06 degrees 50'22", a distance of 28.77 feet to a point on the
arc of a reverse curve, concave to the South;
thence Westerly along the arc of said curve, having a radius of 279.00 feet, and
a central angle of 07 degrees 58'13", a distance of 38.81 feet to a point on
the arc of a reverse curve, concave to the Northeast;
thence Westerly along the arc of said curve, having a radius of 2674.79 feet
and a central angle of 10 degrees 03'26", a distance of 469.51 feet;
thence North 29 degrees 08'53" East, 170.82 feet to a point on the arc of a
tangent curve, concave to the southwest;
thence Northwesterly along the arc of said curve, having a radius of 55.00 feet
and a central angle of 87 degrees 54'58", a distance of 84.39 feet;
thence North 29 degrees 08'53" East, 230.04 feet;
thence North 60 degrees 51'07" West, 41.13 feet;
thence North 29 degrees 08'53" East, 226.50 feet to the Point of Beginning.
Said land situate and lying in the City of Plantation, Broward County, Florida
and containing 286,739 square feet, 6.58 acres, more or less.
<PAGE> 34
EXHIBIT C
CONSTRUCTION WORK LETTER - CROSSROADS
INTERIOR PARTITIONS
Standard interior office partitions shall be metal studs 3-1/2", 25 gauge with
1/2" gypsum board on each side. Standard ceiling height shall be 9'-0" with all
interior partitions connected to the bottom of the ceiling or just above
ceiling or to the slab above only for partners office, conference rooms, and
the office manager, at election of Tenant. All gypsum board partitions shall
be taped, bedded, floated and painted with water base latex paint. Colors may
be selected by Tenant with final approval by Landlord.
DOORS
All interior doors shall be solid core mahogany faced doors, 1-3/4" thick,
3'.0 x 8' - 6" in height, stained.
HARDWARE
Passage sets to be provided on all doors. Schlage or equal, ADA compatible. All
doors to have one (1) door stop. All hardware finishes must match building
standard.
CEILINGS
Office area ceilings are suspended 2' x 4' acoustical tile, tegular, with
exposed metal tee suspension system. Suspension system ceiling shall be Chicago
Metallic or Dunn Product, with white baked enamel finish, or equal.
LIGHTING
Standard lighting in office areas shall be accomplished by 2' x 4' lay in
parabolic florescent fixtures with 2 bulbs.
CARPETING
Carpeting to be provided throughout the tenant space, 22 Ounce Glue Down. Color
to be selected by Tenant. Hollytex, Design Weave, Aladdin, or equivalent. Vinyl
Base in a color selected by Tenant will be installed on all interior walls.
<PAGE> 35
EXHIBIT D
RULES AND REGULATIONS
1 . The sidewalks, halls, passages, exits, entrances, elevators, escalators and
stairways shall not be obstructed by Tenant or used for any purpose other than
for ingress and egress from its Premises. The halls, passages, exits,
entrances, elevators and stairways are not for the use of the general public
and Landlord shall in all cases retain the right to control and prevent access
thereto by all persons whose presence, in the judgment of Landlord, shall be
prejudicial to the safety, character, reputation and interests of the Building
and its tenants, provided that nothing herein contained shall be construed to
prevent such access to persons with whom Tenant normally deals in the ordinary
course of Tenant's business unless such persons are engaged in illegal
activities. Tenant shall not go upon the roof on the Building.
2. The bulletin board or directory of the Building will be provided exclusively
for the display of the name and location of tenants and Landlord reserves the
right to exclude any other names therefrom.
3. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or
placed in, or used in connection with, any window or door on the Premises
without the prior written consent of Landlord. In any event, all such items
shall be installed inboard of Landlord's standard window covering and shall in
no way be visible from the exterior of the Building. No articles shall be
placed on the window sills so as to be visible from the exterior of the
Building. No articles shall be placed against glass partitions or doors which
might appear unsightly from outside Tenant's Premises.
4. Landlord reserves the right to exclude from the Building between the hours
of 6:30 p.m. and 7:30 a.m. weekdays, and at all hours on Saturdays, Sundays,
and holidays all persons who are not tenants or their accompanied guests,
Tenant shall be responsible for all persons it allows to enter the Building and
shall be liable to Landlord for all acts of such persons.
Landlord shall in no case be liable for damages for error with regard to the
admission or exclusion of any person from the Building.
During the continuance of any invasion, mob, riot, public excitement or other
circumstances rendering such action advisable in Landlord's opinion, Landlord
reserves the right to prevent access to the Building by closing the doors, or
otherwise, for the safety of tenants and protection of the Building and
property in the Building.
5. Tenant shall not employ any person or persons other than Landlord's janitor
for the purpose of cleaning its Premises. Except with the written consent of
Landlord no persons other than those approved by Landlord shall be permitted to
enter the Building for the purpose of cleaning same. Tenant shall not cause any
unnecessary labor by reason of its carelessness or indifference in the
preservation of good order and cleanliness. Landlord shall in no way be
responsible to Tenant for any loss of property on its Premises however
occurring, or for any damage done to the effects of Tenant by the janitor or
any other employee or any other person.
6. Tenant shall not use upon its Premises vending machines or accept barbering
or bootblacking services in its Premises except from persons authorized by
Landlord.
7. Tenant shall see that all doors to its Premises are securely locked and that
all utilities, water faucets or water apparatus are shut off before Tenant
leaves the Premises, so as to prevent
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<PAGE> 36
waste or damage, and shall be responsible for all injuries sustained by other
tenants or occupants of the Building or Landlord as a result of its failure to
do so. Tenants shall keep the door or doors to the Building corridors closed at
all times except for ingress and egress.
8. Tenant shall not waste electricity, water, or air conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air conditioning, and shall refrain from attempting to
adjust any controls.
9. Tenant shall not alter any lock or access device or install a new or
additional lock or access device or any bolt on any door in its Premises
without prior written consent of Landlord. If Landlord shall give its consent,
Tenant shall in each case furnish Landlord with a key for any such lock.
10. Tenant shall not make or have made additional copies of any keys or access
devices provided by Landlord. Tenant, upon the termination of the tenancy,
shall deliver to Landlord all the keys or access devices for the Building,
offices, rooms and toilet rooms which shall have been furnished Tenant or which
Tenant shall have had made. In the event of the loss of any keys or access
devices so furnished by Landlord, Tenant shall pay Landlord therefor.
11. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever, including, but not limited to,
coffee grounds shall be thrown therein, and the expense of any breakage,
stoppage, or damage resulting from the violation of this rule shall be borne by
the tenant, who, or whose employees or invitees, shall have caused it.
12. Tenant shall not keep in the Building any kerosene, gasoline or inflammable
or combustible fluid or material other than limited quantities necessary for
the operation or maintenance of office equipment. Tenant shall not use any
method of heating or air conditioning other than that supplied by Landlord.
13. Tenant shall not permit to be kept in its Premises any foul or noxious gas
or substance or permit its Premises to be used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of
noise, odors and/or vibrations or interfere in any way with other tenants or
those having business therein, nor shall any animals or birds be brought or
kept in or about the Building.
14. No cooking shall be done in the Premises (except that use by Tenant of
Underwriter's Laboratory approved equipment for the preparation of coffee, tea,
hot chocolate and similar beverages for Tenant and its employees shall be
permitted, provided that such equipment and use in accordance with applicable
federal, state and city laws, codes, ordinances, rules and regulations) nor
shall the Premises be used for lodging.
15. Tenant shall not sell or permit the sale, at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods on the Premises, nor
shall Tenant carry on, or permit the business of stenography, typewriting or
any similar business in or from the Premises for the service or accommodation
of occupants of any other portion of the Building, nor shall the Premises be
used for the storage of merchandise, manufacturing of any kind, the business of
a public barber shop, or beauty parlor, or for any improper, immoral or
objectionable purpose, or any business activity other than that specifically
provided for in Tenant's lease.
16. Landlord will direct electricians as to where and how telephone, telegraph
and electrical wires are to be introduced or installed. No boring or cutting
for wires will be allowed without the prior written consent of Landlord. The
location of burglar alarms, telephones, call boxes or other office equipment
affixed to the Premises shall be subject to the written approval of Landlord.
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<PAGE> 37
17. Tenant shall not install any radio or television antenna, loudspeaker or any
other device on the exterior walls or the roof of the Building. Tenant shall not
interfere with radio or television broadcasing or reception from or in the
Building.
18. Tenant shall not lay linoleum, tile, carpet or any other floor covering so
that the same shall be affixed to the floor of its Premises in any manner except
as approved in writing by Landlord. The expense of repairing any damage
resulting from a violation of this rule or the removal of any floor covering
shall be borne by Tenant.
19. No furniture, freight, equipment, materials, supplies, packages, merchandise
or other property will be received in the Building or carried up or down
elevators except between such hours and in such elevators as shall be designed
by Landlord. Landlord shall have the right to prescribe the weight, size and
position of all safes, furniture, files, bookcases, or other heavy equipment
brought into the Building. Safes or other heavy objects shall, if considered
necessary by Landlord, stand on wood strips of such thickness as determined by
Landlord to be necessary to properly distribute the weight thereof. Landlord
will not be responsible for loss of or damage to any such safe, equipment or
property from any cause, and all damage done to the Building by moving or
maintaining any such safe, equipment or other property shall be repaired at the
expense of Tenant.
Business machines and mechanical equipment belonging to Tenant which cause noise
or vibration that may be transmitted to the structure of the Building or to any
space therein to such a degree as to be objectionable to Landlord or to any
tenants in the Building shall be placed and maintained by Tenant, at Tenant's
expense, on vibration eliminators or other devices sufficient to eliminate noise
or vibration. The persons employed to move such equipment in or out of the
Building must be acceptable by Landlord.
20. Tenant shall not place a load upon any floor which exceeds the load per
square foot which such floor was designed to carry and which is allowed by law.
Tenant shall not mark, or drive nails, screws or drill into, the partitions,
woodwork or plaster or in any way deface the Pemises.
21. There shall not be used in any space, or in the public areas of the
Building, either by Tenant or others, any hand trucks except those equipped with
rubber tires and side guards or such other material-handling equipment as
Landlord may approve. No other vehicles of any kind shall be brought by Tenant
into or kept in or about the Premises.
22. Tenant shall store all its trash and garbage within the interior of its
Premises. No materials shall be placed in the trash boxes or receptacles if such
material is of such nature that it may not be disposed of in the ordinary and
customary manner of removing and disposing of trash and garbage in this area
without violation of any law or ordinance governing such disposal. All trash,
garbage and refuse disposal shall be made only through entryways and elevators
provided for such purposes and at such times as Landlord may designate.
23. Canvassing, soliciting or distributing of handbills or any other written
material, and peddling in the Building are prohibited and Tenant shall cooperate
to prevent the same. Tenant shall not make room-to-room solicitation of business
from other tenants in the Building.
24. Landlord reserves the right to exclude or expel from the Building any person
who, in Landlord's judgment, is intoxicated or under the influence of liquor or
drugs or who is in violation of any of the rules and regulations of the
Building.
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<PAGE> 38
25. Without the prior written consent of Landlord, Tenant shall not use the
name of the Building in connection with the business of Tenant except as
Tenant's address.
26. Tenant shall comply with all energy conservation, safety, fire protection
and evacuation procedures and regulations established by Landlord or any
governmental agency.
27. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage.
28. The requirements of Tenant will be attended to only upon application at the
office of the Building by an authorized individual. Employees of Landlord shall
not perform any work or do anything outside of their regular duties unless
given special instructions from Landlord, and no such employees will admit any
person (Tenant or otherwise) to any office without specific instructions from
Landlord.
29. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular Tenant, but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor of any other
Tenant, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all tenants of the Building.
30. Landlord reserves the right to make such other reasonable rules and
regulations as in its judgment may from time to time be needed for safety and
security, for care and cleanliness of the Building and for the preservation of
good order therein. Tenant agrees to abide by all such Rules and Regulations
hereinabove stated and any additional rules and regulations which are adopted.
31. All wallpaper or vinyl fabric materials which Tenant may install on painted
walls shall be applied with a strippable adhesive. The use of nonstrippable
adhesives will cause damage to the walls when materials are removed, and
repairs made necessary thereby shall be made by Landlord at Tenant's expense.
32. Tenant shall provide and maintain hard surface protective mats under all
desk chairs which are equipped with coasters to avoid excessive wear and tear
to carpeting. If Tenant falls to provide such mats, the cost of carpet repair
or replacement made necessary by such excessive wear and tear shall be charged
to and paid by Tenant.
33. Tenant will refer all contractors, contractors' representatives and
installation technicians rendering any service to Tenant to Landlord for
Landlord's supervision, approval, and control before performance of any
contractual service. This provision shall apply to all work performed in the
Building, including installations of telephones, telegraph equipment,
electrical devices and attachments and installations of any nature affecting
floors, walls, woodwork, trim, windows, ceilings, equipment or any other
physical portion of the Building.
34. Tenant shall give prompt notice to Landlord of any accidents to or defects
in plumbing, electrical fixtures, or heating apparatus so that such accidents
or defects may be attended to properly.
35. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients, invitees and
guests.
36. Tenant shall not allow its employees or invitees to park in other than
designated areas, nor shall any washing of cars or car repairs be permitted in
any parking areas, nor shall overnight parking be permitted, nor shall
commercial trucks be allowed in the parking areas other than in designated
delivery areas.
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<PAGE> 39
37. Other than for single-trip usages, Tenant shall make reservations for use
of any elevators, which shall be accepted by Landlord on a first-come,
first-serve basis.
38. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of premises in the building.
5
<PAGE> 40
Page 1 of Lease Amendment No. 1
-------------------------------
LEASE AMENDMENT NO. 1
Landlord: Crossroads Business Park Associates, a Florida general
partnership
Tenant: Precision Response Corporation, a Florida corporation (the
Tenant is sometimes referred to in this Lease Amendment No. 1
by the use of the pronoun "you")
Original
Premises: Approximately 27,224 r.s.f. (24,307 usable s.f.) of space
comprised of the entire fourth floor of Crossroads Business
Park Building Two, 8151 West Peters Road, Plantation, Florida
Expansion
Premises: Approximately 18,107 r.s.f. (15,745 usable s.f.) of space
comprised of a portion of the third floor of Crossroads
Business Park Building Two, 8151 West Peters Road, Plantation,
Florida. EXHIBIT E attached to this Lease Amendment No. 1
shows the approximate location of the Expansion Premises
within the third floor
Lease: Lease Agreement dated July 20, 1999 between Landlord and
Tenant
Transaction: Addition of the Expansion Premises as part of the Premises
================================================================================
WITNESSETH:
WHEREAS, the parties desire to provide for an expansion of the Premises
to include the Expansion Premises upon the terms and conditions contained
herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, each intending to be
legally bound hereby, covenant and agree as follows:
1. The above recitals are true and correct and are incorporated into
the terms of this Lease Amendment No. 1.
Tenant's Initials RDM Landlord's Initials ES/JA
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<PAGE> 41
Page 2 of Lease Amendment No. 1
-------------------------------
2. In addition to the definitions set forth above, the following
definitions are added to the Lease:
"Expansion Premises Rent Commencement Date" means the (i) the fifteenth
day immediately following the date that a certificate of occupancy
(temporary or permanent) or its equivalent is issued by the City of
Plantation permitting you to occupy the Expansion Premises; or if
earlier (ii) April 15, 2000.
"Letter of Credit Endorsement" means an endorsement to the Letter of
Credit increasing the Letter of Credit amount from $450,000 to
$750,000. Upon Landlord's receipt of the Letter of Credit Endorsement,
references in the Lease to the Letter of Credit means the Letter of
Credit as amended by the Letter of Credit Endorsement.
3. The definitions set forth below hereby replace and supercede the
same definition contained in the Lease:
"Landlord's Contribution" means the improvement allowance that Landlord
has agreed to pay to you in the method and manner prescribed in this
Lease in connection with your obligation to construct the Interior
Buildout. Landlord's Contribution is the lesser of (i) the Interior
Buildout Cost; or (ii) the sum of $1,813,240. The portion of the
Landlord's Contribution attributable to the Interior Buildout of the
Original Premises is $1,088,960 and the portion of the Landlord's
Contribution attributable to the Interior Buildout of the Expansion
Premises is $724,280. You shall have the right, by written notice to
Landlord, to change the allocation of the Landlord's Contribution
attributable to the Interior Buildout of the Original Premises and the
Interior Buildout of the Expansion Premises, e.g., increase the amount
of the Landlord's Contribution allocated to the Interior Buildout of
the Original Premises and decrease by like amount the amount allocated
to the Interior Buildout of the Expansion Premises, provided, however,
that in no case shall the amount of the Landlord's Contribution, in the
aggregate, ever exceed $1,813,240. Other than Landlord's obligation to
pay to you the Landlord's Contribution, Landlord has not agreed to and
will not be responsible for the space planning, design or construction
of the Interior Buildout or its cost thereof.
"Letter of Credit" means an irrevocable and unconditional letter of
credit in the amount of $450,000. The Letter of Credit must (i) be in
form satisfactory to Landlord; (ii) clearly state that it is a clean
site draft in the required amount in favor of Landlord, irrevocable and
expiring no earlier than May 1, 2005, or, if the issuer is unable to or
is unwilling to issue a multi-year form of Letter of Credit, then in a
form which will automatically renew from year to year unless the issuer
provides Landlord with at least sixty days advance written notice that
the issuer will not be renewing the Letter of Credit; (iii) be issued
by NationsBank, N.A k/n/a Bank of America or a bank approved by
Landlord; (iv) be payable upon presentation to a bank in Broward
County, Florida; and (v) be unconditionally available to Landlord by
Landlord's drafts, at sight, with partial draws permitted.
"Premises" means the Original Premises and the Expansion Premises.
"Rent Commencement Date" means the (i) the fifteenth day immediately
following the date that a certificate of occupancy (temporary or
permanent) or its equivalent is issued by the City of Plantation
permitting you to occupy the Original Premises; or if earlier (ii)
March 15, 2000.
4. Section 1.01(b) of the Lease is deleted in its entirety and the
following is substituted in its place:
Tenant's Initials RDM Landlord's Initials ES/JA
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<PAGE> 42
Page 3 of Lease Amendment No. 1
-------------------------------
(b) During the term of this Lease and provided that you are not then in
default, you shall have the exclusive right to use at no additional
charge (i) seventeen (17) reserved covered parking spaces comprised of
space no.s 4, 5, 6, 7, 8, 9, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and
32 ; and (ii) two spaces in front of the Building for your company
limousines. The location of these spaces shall be determined by
Landlord.
5. Section 1.01(c) of the Lease is deleted in its entirety and the
following is substituted in its place:
(c) The parties will agree on the Construction Drawings in
accordance with the procedures set forth in Sections 1.02 and 1.02A.
You will then construct the Interior Buildout in accordance with the
requirements of Section 1.04.
6. Section 1.02 of the Lease shall be construed to pertain solely to
the Original Premises and nothing contained in this Lease Amendment No. 1 shall
be construed to extend any time period set forth in Section 1.02 of the Lease.
7. The following provision is added to the Lease:
1.02A CONSTRUCTION DRAWINGS FOR EXPANSION PREMISES. (a) The
Construction Drawings for the portion of the Interior Buildout
pertaining to the Expansion Premises will be finalized in accordance
with the time line contained in this Section 1.02A, and as to all
required time periods contained in this Section 1.02A, time shall be of
the essence. References in this Section 1.02A to the Construction
Drawings means the Construction Drawings pertaining to the Interior
Buildout of the Expansion Premises. The time line is as follows:
(i) You agree to provide Landlord with the
Construction Drawings on or before the seventy fifth (75th) day
immediately following the date this Lease Amendment No. 1 is fully
executed.
(ii) Landlord agrees to provide you with written
notice of approval or rejection of the Construction Drawings on or
before the tenth day immediately following Landlord's receipt of such
Construction Drawings. If Landlord rejects the Construction Drawings,
Landlord's rejection notice must specify with particularity the reason
for rejection and, where applicable, an alternate that Landlord would
accept. Landlord's failure to timely give any written notice of
approval or rejection as required herein shall be a deemed approval.
(iii) If Landlord rejects the Construction Drawings,
you agree to provide Landlord with revised Construction Drawings within
eight business days of your receipt of Landlord's rejection notice. The
revised Construction Drawings must contain an itemization of the
revisions that made.
(iv) Landlord agrees to provide you with written
notice of approval or rejection of the revised Construction Drawings on
or before the fifth day immediately following Landlord's receipt of the
revised Construction Drawings. If Landlord rejects the revised
Construction Drawings, Landlord's rejection notice must again specify
with particularity the reason for rejection and, where applicable, an
alternate that Landlord would accept. In such event, the procedures set
forth in paragraphs (iii) and (iv) above will continue to be repeated
until such time as Landlord approves the Construction Drawings.
Landlord's failure to timely give any written notice of approval or
rejection as required herein shall be a deemed approval.
(b) Any approval by Landlord of or consent by Landlord to the
Construction Drawings or to any
Tenant's Initials RDM Landlord's Initials ES/JA
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<PAGE> 43
Page 4 of Lease Amendment No. 1
-------------------------------
part thereof or to any changes thereto and any inspection or approval
of the Interior Buildout shall be deemed to be strictly limited to an
acknowledgment of approval or consent and such approval or consent
shall not constitute an assumption by Landlord of any responsibility
for the accuracy, sufficiency or feasibility of any plans,
specifications or other such items and shall not imply any
representation, acknowledgment or warranty by Landlord that the design
is safe, feasible or structurally sound or will comply with any legal
or governmental requirements. Any deficiency in design, although same
had the prior approval of Landlord, shall be solely your
responsibility. It is your responsibility to ensure that the
Construction Drawings and the Interior Buildout comply with all
applicable building codes and ordinances, with the N.F.P.A. Life Safety
Code and with the Public Accommodation Laws. Your obligations under
Section 28.01 of this Lease shall apply to the Interior Buildout.
8. Section 1.03 is amended to clarify that the Expansion Premises will
be delivered on the date that this Lease Amendment No. 1 is fully executed.
9. Section 1.04 of the Lease is deleted in its entirety and the
following is substituted in its place:
1.04 Construction of the Interior Modifications. (a) As soon as is
reasonably practical following approval of the Construction Drawings,
or part thereof, you will apply for a building permit(s) to construct
the Interior Buildout and you will diligently pursue to completion the
obtaining of the building permit(s). The Construction Drawings will be
approved in two parts, one being for the portion of the Interior
Buildout pertaining to the Original Premises and the other being for
the portion of the Interior Buildout pertaining to the Expansion
Premises.
(b) Upon receipt of the building permit for the construction
of the portion of the Interior Buildout, whether it be for the portion
pertaining to the Original Premises or for the portion pertaining to
the Expansion Premises, as the case may be, you will commence the
construction of the Interior Buildout and you will diligently pursue to
completion the construction of the Interior Buildout, subject to force
majeure or other unavoidable delay, provided, however, that such force
majeure or other unavoidable delay shall not result in an extension of
the Rent Commencement Date or the Expansion Premises Rent Commencement
Date, as the case may be. You agree to construct the Interior Buildout
in accordance with the Construction Drawings and in accordance with all
applicable building codes and ordinances, the N.F.P.A. Life Safety Code
and in compliance with all applicable Public Accommodation Laws. You
shall be permitted to make changes to the Construction Drawings only if
Landlord agrees to the changes. Landlord agrees to not unreasonably
withhold, delay or condition any requested approval of changes to the
Construction Drawings.
(c) The general contractor selected by you is subject to
Landlord's reasonable approval and the general contractor must be
bonded and fully insured in accordance with Landlord's insurance
requirements, provided that such insurance requirements are
commercially reasonable. Your general contractor and any subcontractors
shall be subject to the administrative supervision of Landlord's
construction manager provided, however, that Landlord shall not be
entitled to charge you for a construction management or supervisory
fee. Provided that Tiger Construction, Inc. is bondable and insurable,
Landlord approves Tiger Construction, Inc. as your general contractor.
(d) All materials used in the construction of the Interior
Buildout shall be building standard or better as set forth in the
construction letter attached to this Lease as EXHIBIT C. The materials
used in the construction of the Interior Buildout and the improvements
to the Premises included in the Interior Buildout represents realty and
not personalty and at Lease expiration, ownership will vest in
Landlord.
Tenant's Initials RDM Landlord's Initials ES/JA
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<PAGE> 44
Page 5 of Lease Amendment No. 1
-------------------------------
(e) Your obligation to pay Rent for the portion of the
Premises pertaining to the Original Premises begins on the Rent
Commencement Date and is not dependant upon your completion of the
Interior Buildout on or before that date and you will be obligated to
begin paying Rent for the Original Premises on the Rent Commencement
Date even if the Interior Buildout is not completed by that date. Your
obligation to pay Rent for the portion of the Premises pertaining to
the Expansion Premises begins on the Expansion Premises Rent
Commencement Date and is not dependant upon your completion of the
Interior Buildout on or before that date and you will be obligated to
begin paying Rent for the Expansion Premises on the Expansion Premises
Rent Commencement Date even if the Interior Buildout is not completed
by that date.
10. Section 1.05 of the Lease is deleted in its entirety and the
following is substituted in its place:
1.05 PAYMENT OF LANDLORD'S CONTRIBUTION. Landlord will make progress
payments to you of Landlord's Contribution in accordance with this
Section 1.05. Landlord shall be entitled to retain a ten percent
retainage from each partial payment and the retainage shall be paid to
you as part of the final payment of Landlord's Contribution. In order
to obtain a partial draw of Landlord's Contribution, you must submit a
Draw Request. Landlord agrees to promptly process the Draw Request and
make payment to you within twenty five days of Landlord's receipt of
the Draw Request, provided, however, that you may not submit more than
one draw request in any calendar month and provided that the Draw
Request for such month was submitted on or before the second business
day of such calendar month. Landlord reserves the right to have the
check made payable to you and your general contractor. As a condition
precedent to Landlord's payment of the initial Draw Request with
respect to the portion of the Interior Buildout attributable to the
Original Premises, Landlord must have approved the portion of the
Construction Drawings attributable to the Interior Buildout of the
Original Premises, you must have commenced construction of the Interior
Buildout and Landlord must have received from you (i) a fully executed
copy of your contract with your general contractor regarding the
Interior Buildout of the Original Premises; (ii) the notice of
commencement pertaining to the portion of the Interior Buildout
attributable to the Original Premises in a form approved by Landlord
prior to its recording and then a copy of the recorded notice of
commencement; and (iii) a copy of the building permit for the portion
of the Interior Buildout attributable to the Original Premises. As a
condition precedent to Landlord's payment of the initial Draw Request
with respect to the portion of the Interior Buildout attributable to
the Expansion Premises, Landlord must have approved the portion of the
Construction Drawings attributable to the Interior Buildout of the
Expansion Premises, you must have commenced construction of the portion
of the Interior Buildout attributable to the Expansion Premises and
Landlord must have received from you (i) a fully executed copy of your
contract with your general contractor regarding the Interior Buildout
of the Expansion Premises; (ii) the notice of commencement pertaining
to the portion of the Interior Buildout attributable to the Expansion
Premises in a form approved by Landlord prior to its recording and then
a copy of the recorded notice of commencement; and (iii) a copy of the
building permit for the portion of the Interior Buildout attributable
to the Expansion Premises. Landlord is not required to make payment to
you of the final Original Premises Draw Request until Landlord receives
from you (i) the certificate of occupancy for the Original Premises;
(ii) two sets of detailed as built plans and specifications and a
computer diskette containing the as built plans and specifications for
the portion of the Interior Buildout attributable to the Original
Premises; (iii) certificates from your architect and general contractor
certifying that the portion of the Interior Buildout attributable to
the Original Premises has been constructed in accordance with the
Construction Drawings and in accordance with all applicable building
codes and ordinances, the N.F.P.A. Life Safety Code and in compliance
with all applicable Public Accommodation Laws; (iv) a certified copy of
the recorded notice of termination of the notice of commencement for
the portion of the Interior Buildout attributable to the Original
Premises with final contractor affidavit attached; and (v) final lien
waivers from all individuals or entities who performed labor or who
provided materials or services and who would have a right to assert a
lien against the Premises arising
Tenant's Initials RDM Landlord's Initials ES/JA
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<PAGE> 45
Page 6 of Lease Amendment No. 1
-------------------------------
out of work performed with respect to the portion of the Interior
Buildout attributable to the Original Premises. Landlord is not
required to make payment to you of the final Expansion Premises Draw
Request until Landlord receives from you (i) the certificate of
occupancy for the Expansion Premises; (ii) two sets of detailed as
built plans and specifications and a computer diskette containing the
as built plans and specifications for the portion of the Interior
Buildout attributable to the Expansion Premises; (iii) certificates
from your architect and general contractor certifying that the portion
of the Interior Buildout attributable to the Expansion Premises has
been constructed in accordance with the Construction Drawings and in
accordance with all applicable building codes and ordinances, the
N.F.P.A. Life Safety Code and in compliance with all applicable Public
Accommodation Laws; (iv) a certified copy of the recorded notice of
termination of the notice of commencement for the portion of the
Interior Buildout attributable to the Expansion Premises with final
contractor affidavit attached; and (v) final lien waivers from all
individuals or entities who performed labor or who provided materials
or services and who would have a right to assert a lien against the
Premises arising out of work performed with respect to the Interior
Buildout. Notwithstanding anything in this Section 1.05 to the
contrary, Landlord will pay to you, within five business days of the
delivery to Landlord of the Letter of Credit Endorsement, the sum of
$3,621 representing an advance on your preliminary space planning costs
for the Expansion Premises, which amount is part of and is not in
addition to the portion of Landlord's Contribution attributable to the
Expansion Premises.
11. You acknowledge having been paid by Landlord a $5,445 advance on
your preliminary space planning costs for the Original Premises which payment
was a part of and was not in addition to the portion of Landlord's Contribution
attributable to the Original Premises.
12. Section 1.06 of the Lease is deleted in its entirety and the
following is substituted in its place:
1.06 MEASUREMENT OF THE PREMISES. On or before the twentieth day
immediately following the date that this Lease Amendment No. 1 is fully
executed, you may measure the Expansion Premises. You further
acknowledge that you previously had the right to measure the Building
and the Original Premises and that you have accepted the measurements
specified in this Lease as to the Building and as to the Original
Premises as conclusive. All calculations of usable area under this
Lease shall be based upon the American National Standard ANZI Z65.1 -
1980 (Reaffirmed 1989) (Approved June 21, 1989 by the American National
Standards Institute, Inc.). Rentable square footage is the usable
square footage plus a common area factor of 15% for multi-tenant floors
and 12% for single tenant floors. If you do not provide Landlord with
written notice disputing the measurement of the Expansion Premises
within such twenty day period, time being of the essence, then the
Expansion Premises shall be conclusively deemed to measure the rentable
square footage specified in the definition of the Expansion Premises
set forth above. If Landlord receives written notice from you within
such twenty day period disputing the measurement of the Expansion
Premises and if Landlord disagrees with your determination, then
Landlord's architect and your architect shall mutually select a third
architect whose sole purpose shall be to state whose measurement
(Landlord's or yours in which event Landlord shall have the right to
claim that the rentable square footage of the Expansion Premises is
less than or greater than the amount specified in the definition of
Expansion Premises) is most correct and the determination of the third
architect shall be conclusive and binding upon the parties. Once the
third architect makes a determination as to which measurement is most
correct, the rental rates during the primary term for the Expansion
Premises will be adjusted based on a fraction, the numerator of which
is the rentable square footage of whichever of Landlord's or your
measurement the third architect determined to be most correct and the
denominator of which is the rentable square footage set forth in the
definition of Expansion Premises. The cost of the third architect shall
be paid for equally by the parties.
Tenant's Initials RDM Landlord's Initials ES/JA
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<PAGE> 46
Page 7 of Lease Amendment No. 1
-------------------------------
13. Section 3.01(a) of the Lease is deleted in its entirety and the
following is substituted in its place:
(a) You agree to pay to Landlord monthly base rent for the Original
Premises, in advance, without demand, deduction or set off, for the
entire primary term hereof beginning on the Rent Commencement Date, at
the initial rate of $32,896.00 a month, provided, however, that if the
Rent Commencement Date is a day other than the first day of a calendar
month, then for the initial partial month, you agree to pay a per diem
base rental of $1,096.52 a day for each day of the partial month
beginning on the Rent Commencement Date and ending on the last day of
the partial month in which the Rent Commencement Date falls. You agree
to pay to Landlord monthly base rent for the Expansion Premises, in
advance, without demand, deduction or set off, for the entire primary
term hereof beginning on the Expansion Premises Rent Commencement Date,
at the initial rate of $21,878.96 a month, provided, however, that if
the Expansion Premises Rent Commencement Date is a day other than the
first day of a calendar month, then for the initial partial month, you
agree to pay a per diem base rental of $729.30 a day for each day of
the partial month beginning on the Expansion Premises Rent Commencement
Date and ending on the last day of the partial month in which the
Expansion Premises Rent Commencement Date falls. The monthly base rent
amount payable by you during the primary term for each of the Original
Premises as well as for the Expansion Premises will increase on each
Adjustment Date beginning with the Adjustment Date corresponding to the
first day of the second Lease Year, the annual increase to be computed
in the manner prescribed in Section 3.03.
14. Section 3.01(f) of the Lease is deleted in its entirety and the
following is substituted in its place:
(f) Notwithstanding anything in Section 3.01(a) to the contrary, to the
extent the Landlord's Contribution is less than $1,813,240, you shall
be entitled to receive a credit for the difference between $1,813,240
and the actual amount of the Landlord's Contribution. The credit will
be in one of the following two forms, all at Landlord's sole option and
discretion: (i) a credit against Rent to be credited against Rent first
becoming due and payable after the Expansion Premises Rent Commencement
Date until such time as the entire credit is exhausted; or (ii) reduced
Base Rent with the reduction amortized equally over the primary term of
the Lease beginning on the Expansion Premises Rent Commencement Date
with an interest factor of 10%.
15. Section 3.02 of the Lease is amended to clarify that the portion of
the first month's Rent attributable to the Expansion Premises shall be paid
simultaneously with the execution of this Lease Amendment No. 1.
16. Landlord acknowledges receipt of the Letter of Credit. Section 4.01
of the Lease is amended to provide that the Letter of Credit Endorsement must be
delivered to Landlord no later than the twelfth day immediately following the
date of full execution of this Lease Amendment No. 1. If the Letter of Credit
Endorsement is not delivered within such period, then until such time as it is
delivered, you agree to pay to Landlord a penalty of $100.00 a day for each day
until delivered and until such time as it is delivered, Landlord shall have the
right to terminate this Lease in which event Landlord shall be entitled to
present the Letter of Credit for payment as agreed upon liquidated damages,
provided, however, that in order to terminate the Lease and draw on the
Tenant's Initials RDM Landlord's Initials ES/JA
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<PAGE> 47
Page 8 of Lease Amendment No. 1
-------------------------------
Letter of Credit pursuant to this sentence, Landlord must first provide you with
three business days advance written notice of Landlord's intent to do so.
17. The second paragraph of Section 4.01 of the Lease is deleted in its
entirety and the following is substituted in its place:
Provided that no Event of Default then exists beyond the applicable
grace period, if any, on each Adjustment Date beginning with the
Adjustment Date corresponding to the first day of the second Lease
Year, you shall be permitted to substitute a replacement Letter of
Credit in an amount equal to the Letter of Credit amount then in effect
prior to replacement minus $150,000. Upon Landlord's receipt of a
replacement Letter of Credit, Landlord will return to you the then
Letter of Credit that Landlord is holding.
18. Section 7.01(a) of the Lease is amended to provide that (i) you
will not have to pay your Proportionate Share of Operating Costs solely with
respect to the Expansion Premises until the Expansion Premises Commencement
Date; and (ii) as of the Expansion Premises Rent Commencement Date, the initial
estimated amount of your Proportionate Share of Operating Costs will increase to
$20,775.60.
19. The last two sentences of Section 10.01 of the Lease are deleted in
their entirety and the following is substituted in their place:
Notwithstanding the foregoing, you may make without Landlord's prior
consent but only after written notice to Landlord, non-structural
alterations to the Premises which, in the aggregate, do not exceed
$75,000. As to any alteration that does not require Landlord's consent,
you will provide Landlord with advance notification of the making of
the alteration.
20. Section 31.01 of the Lease is deleted in its entirety and the
following is substituted in its place:
31.01 MOVING COST ALLOWANCE. Within thirty days following the Rent
Commencement Date, Landlord will pay to you a moving cost allowance of
$25,000. Within thirty days following the Expansion Premises Rent
Commencement Date, Landlord will pay to you an additional moving
allowance of $16,625.00.
21. Except as is otherwise expressly provided for herein to the
contrary, your use and occupancy of the Expansion Premises is subject to all of
the terms and conditions of the Lease. All of the terms of the Lease not
otherwise in conflict with this Lease Amendment No. 1 shall remain in full force
and effect as if fully set forth herein, and any capitalized terms not defined
herein shall have the meanings set forth in the Lease.
22. This Lease Amendment No. 1 may be executed in multiple
Tenant's Initials RDM Landlord's Initials ES/JA
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<PAGE> 48
Page 9 of Lease Amendment No. 1
-------------------------------
counterparts, and each counterpart, when taken together, shall be
deemed an original. The date of this Lease Amendment No. 1 shall
be the date signed by Landlord.
IN WITNESS WHEREOF, Tenant, through a duly authorized officer, has
caused this Lease Amendment No. 1 to be duly executed on October 20, 1999.
----------
(Witnesses)
Precision Response Corporation,
a Florida corporation
/s/ CINDY SANDOR
- -----------------------------------
/s/ ESTHER HERNANDEZ
- -----------------------------------
By: /s/ RICHARD D. MONDRE
---------------------------------
Print Name: RICHARD D. MONDRE
Print Title: EXECUTIVE VICE PRESIDENT
IN WITNESS WHEREOF, Landlord, through its authorized general partners,
has caused this instrument to be duly executed on 10/29 , 1999.
------------------
Crossroads Business Park Associates,
a Florida general partnership
By: Argent Point, Inc., a Florida
corporation as an authorized
general partner
(Witnesses as to Landlord)
/s/ TRACEY GORDON
- ------------------------------------
/s/ DAPHNE M. VELOZ
- ------------------------------------
By: /s/ JACK AZOUT
------------------------------
Jack Azout, President
By: Stone Point, Inc., a Florida
corporation as an authorized
general partner
/s/ TRACEY GORDON
- ------------------------------------
/s/ DAPHNE M. VELOZ
- ------------------------------------
By: /s/ ERWIN SREDNI
-----------------------------
Erwin Sredni, President
lamend.expansion.crossroads.precisionresponse.draft2
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<PAGE> 49
Exhibit E
3rd Floor Location
(Description of floor plan expansion.)
<PAGE> 1
EXHIBIT 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated and effective as of August 9, 1999 (the
"Effective Date"), by and between PRECISION RESPONSE CORPORATION, a corporation
organized and existing under the laws of the State of Florida (hereinafter
referred to as "Employer"), and PAUL M. O'HARA (hereinafter referred to as
"Employee").
W I T N E S S E T H:
WHEREAS, Employer is a Florida corporation engaged in interactive
customer care, service and marketing through the integration of its
teleservicing, Internet database management and marketing and fulfillment
business;
WHEREAS, Employer desires to continue to employ Employee upon the terms
and conditions set forth below and Employee desires to continue his employment
upon such terms and conditions; and
WHEREAS, Employer and Employee desire to set forth in writing the terms
and conditions of their agreements and understandings with respect to Employee's
continued employment by Employer.
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT
Employer hereby employs Employee, and Employee hereby accepts
employment by Employer, upon the terms and conditions set forth in this
Employment Agreement.
2. TERM
Subject to the provisions for earlier termination set forth in Section
9 hereof, this Employment Agreement shall commence on the Effective Date and
shall continue until 5:00 p.m. on August 8, 2002 (the "Initial Employment
Term"), with the Initial Employment Term to be automatically renewed and
extended for consecutive additional one year periods unless, at least sixty (60)
days prior to the expiration of the Initial Employment Term or any one year
renewal period thereof, either party hereto delivers to the other party hereto
written notice of such party's termination of this Employment Agreement at the
expiration of the Initial Employment Term or any one year renewal period thereof
(as the case may be). The Initial Employment Term together with any or all one
year renewal periods thereof are hereinafter collectively referred to as the
"Employment Term."
3. EMPLOYEE'S REPRESENTATIONS AND WARRANTIES
Employee represents and warrants to Employer that Employee is
free to accept employment with Employer as contemplated herein and has no
written or oral obligations or commitments of any
<PAGE> 2
kind or nature which would in any way interfere with Employee's acceptance of
employment pursuant to the terms hereof or the full performance of Employee's
obligations hereunder or the exercise of Employee's best efforts in Employee's
employment hereunder or which would otherwise pose any conflict of interest.
4. DUTIES AND EXTENT OF SERVICES
A. DUTIES. Employee's duties and responsibilities hereunder
shall be those reasonably assigned to Employee from time to time by Employer,
consistent with the following: Employee shall, unless and until otherwise
determined by Employer, serve as Employer's Executive Vice President-Finance and
Chief Financial Officer, and shall, subject to the direction of Employer's Chief
Executive Officer, have overall responsibility to supervise and conduct all
financial, financial management and accounting functions of Employer as well as
all other functions and activities customarily supervised or conducted by an
Executive Vice President-Finance and Chief Financial Officer of a
publicly-traded company. Employee shall report directly to Employer's Chief
Executive Officer. Employee agrees to devote Employee's full and exclusive time,
skill, attention and energy diligently and competently to perform the duties and
responsibilities properly assigned to Employee hereunder, or pursuant hereto.
B. RULES AND REGULATIONS. Employee agrees to abide by the
rules and regulations of Employer promulgated by Employer from time to time with
respect and applicable to Employer's similarly-situated employees generally,
which are all hereby incorporated by reference and made a part of this
Employment Agreement.
5. COMPENSATION
A. BASE COMPENSATION. Subject to the provisions of Section 9
of this Employment Agreement, Employer shall pay salary to Employee ("Salary")
based upon the rate of $400,000 per annum from the Effective Date through the
remainder of the Employment Term. Salary shall be payable in accordance with
Employer's normal payroll practices for its employees and shall be subject to
payroll deductions and tax withholdings in accordance with Employer's usual
practices and as required by law.
B. BONUS COMPENSATION. Employee shall receive an annual bonus
in an amount to be determined by the Compensation Committee of the Board of
Directors of Employer in its sole and absolute discretion (the "Bonus Amount").
Subject to the provisions regarding payment upon termination of employment set
forth in Section 9 hereof, each annual Bonus Amount shall be paid on or before
March 31 of each year of the Employment Term. The Bonus Amount payable on or
before each March 31 shall be based upon the operating results of Employer and
Employee's performance during the calendar year (or the portion thereof in which
Employee was
2
<PAGE> 3
employed hereunder) immediately preceding such March 31. Each Bonus Amount shall
be subject to payroll deductions and tax withholdings in accordance with
Employer's usual payroll practices and as required by law.
6. FRINGE BENEFITS AND EXPENSES
A. EMPLOYEE BENEFITS. Employee shall be entitled to such
benefits and fringe benefits (such as individual and family health, dental, life
and disability insurance) as are made available by Employer from time to time,
in Employer's sole discretion, to all other similarly-situated executive
employees generally.
B. EXPENSES. Employer shall reimburse Employee for Employee's
reasonable out-of-pocket costs and expenses incurred in connection with the
performance of Employee's duties and responsibilities hereunder, subject to
Employee's presentation of appropriate documentation and, if requested,
justification therefor, and provided that the types and amounts of expenses
incurred are consistent with, in Employer's judgment, Employer's policies and
practices.
C. AUTO. Employer shall provide to Employee an automobile
allowance of $850.00 per month during the Employment Term in order to defray
Employee's automobile expenses incurred in the performance of Employee's duties,
but shall not be obligated to provide Employee with an automobile.
7. VACATIONS
Employee shall be entitled to five (5) weeks vacation during
each full year of the Employment Term (prorated for any partial year), with full
compensation (provided, however, that Employee shall not be entitled to be
compensated for any unused vacation days upon termination of employment). The
periods during which Employee will be absent from work for vacation shall be at
the reasonable discretion of Employer.
8. FACILITIES
Employer shall provide and maintain (or cause to be provided
and maintained) such facilities, equipment, supplies and personnel as it
reasonably deems necessary for Employee's performance of Employee's duties and
responsibilities under this Employment Agreement.
9. TERMINATION OF EMPLOYMENT
A. TERMINATION EVENTS. Employee's employment under this
Employment Agreement may be terminated by Employer only as follows: with or
without Cause (as hereinafter defined), effective upon the delivery of written
notice to Employee; upon Employee's
3
<PAGE> 4
death; or upon Employee becoming Disabled (as hereinafter defined) and receiving
written notice of termination from Employer to that effect. Employee may
terminate Employee's employment under this Employment Agreement without being in
breach hereunder by giving written notification of (i) Employee's resignation to
Employer which shall specify a resignation date no earlier than thirty (30) days
following the date of delivery of such notice of resignation or (ii)
Constructive Termination (as hereinafter defined) of Employee's employment under
this Employment Agreement (subject to the provisions of Section 9.B. hereof
relating to Constructive Termination). Employee's employment under this
Employment Agreement shall be terminated upon expiration of the Employment Term
pursuant to Section 2 hereof.
B. DEFINITIONS OF CAUSE, DISABLED AND CONSTRUCTIVE
TERMINATION. For purposes of this Employment Agreement, "Cause" shall mean and
include: (i) commission of a felony, or commission of acts of fraud, dishonesty,
or the like; (ii) habitual drunkenness during business hours or at Employer's
premises; (iii) illicit use of drugs during business hours or at Employer's
premises; (iv) abandonment of employment duties; (v) negligence in the
performance of employment duties; (vi) an act or omission on the part of
Employee not directed by Employer which results in or contributes to Employer
being sanctioned or penalized by any governmental or quasi-governmental
authority or body, or any stock exchange or body regulating or governing
publicly-traded companies (including the NASD); (vii) insubordination; or (viii)
breach by Employee of this Employment Agreement which, if curable, is not cured
by Employee within ten (10) days following Employee's receipt of written notice
thereof. Employee shall be deemed "Disabled" for purposes of this Agreement (a)
if, in the reasonable judgment of Employer, Employee is unable, due to physical,
mental or emotional illness or injury, to perform substantially all of
Employee's duties and responsibilities for Employer for a continuous period of
ninety (90) days, or (b) if Employee is adjudicated as an incompetent or has a
guardian appointed to handle Employee's affairs. For purposes of this Employment
Agreement, "Constructive Termination" shall mean: (x) Employer has delegated to
another or others a material portion of Employee's duties or responsibilities
provided for in Section 4.A. hereof or Employee's authority related thereto (and
shall include, without limitation, loss of title or removal of Employee from the
office of Executive Vice President-Finance or Chief Financial Officer, even if
Employee's day-to-day duties are to remain substantially the same, or a change
as to whom Employee reports), other than for Cause, and Employer fails to
confirm in writing, and implement, the reinstatement of such material portion of
Employee's duties and responsibilities and/or offices to Employee within thirty
(30) days after receipt by each of the Chairman of the Board and Chief Executive
Officer of Employer of Employee's written notice of protest (as provided in the
next sentence), (y) Employer attempts, without Employee's prior written consent,
to relocate Employee's office outside of northern Miami-Dade County (i.e., not
any further south in Miami-Dade County
4
<PAGE> 5
than the location of Employer's executive offices as of the Effective Date) or
Broward County, Florida, or (z) the position of Chairman of the Board or Chief
Executive Officer of Employer becomes vacant for any reason and either (1) the
vacancy is filled by a person other than Mark J. Gordon, David Epstein, Employee
or another person not an employee of Employer immediately prior to becoming the
Chairman of the Board or Chief Executive Officer of Employer or (2) the vacancy
is not filled within sixty (60) days of the date of such vacancy. In the event
of Constructive Termination of Employee's employment under this Employment
Agreement, Employee may terminate Employee's employment, provided that he has
given written notice of protest to each of the Chairman of the Board and Chief
Executive Officer of Employer within thirty (30) days of the occurrence of the
event causing the Constructive Termination setting forth the manner in which the
Constructive Termination has occurred (and such Constructive Termination is not
timely corrected, as provided in the case of a Constructive Termination under
clause (x) of the preceding sentence). For purposes solely of Section 2(b) of
those certain Stock Option Agreements dated August 9, 1996 (as amended on
November 10, 1997) and November 10, 1997, by and between Employer and Employee,
Employee's employment shall be deemed terminated by Employer without Cause in
the event that Employee terminates his employment as a result of the occurrence
of a Constructive Termination to the extent and in the manner permitted under
this Employment Agreement.
C. EFFECT OF TERMINATION FOR CAUSE OR EMPLOYEE'S RESIGNATION.
In the event that Employee's employment under this Employment Agreement is
terminated by Employer with Cause, or because Employee resigns from or quits
Employee's employment (other than as a result of a Constructive Termination),
Employer shall pay to Employee, within thirty (30) days following the date of
such termination or resignation, subject to Employer's right to set off any
damages resulting from Employee's termination with Cause or, if applicable, a
resignation effected without giving the required notice, the Salary, if any,
accrued and unpaid through the date of termination, and shall pay and provide to
Employee the amounts and items payable and to be provided under Sections 6.A.,
B. and C. through the date of such termination; and Employee shall not be
entitled to any other compensation, remuneration or other sums provided for in
this Employment Agreement or to which Employee might otherwise be entitled
hereunder or at law or in equity, including, without limitation, any accrued or
unpaid Bonus Amount. If Employee gives a notice of resignation, Employer may
terminate Employee's employment prior to the 30th day following the notice of
resignation, by written notice to Employee to that effect, specifying the
termination date, in which event Employee shall continue to receive, as and when
it would have been paid, Salary and the items set forth in Sections 6.A and C.
through such 30th day.
D. COMPENSATION UPON DEATH OR DISABILITY. Upon the death of
Employee, or termination of employment because Employee is
5
<PAGE> 6
Disabled, Employer shall pay to Employee, Employee's legal guardian or the legal
representative of Employee's estate (or heir as designated by the legal
representative of Employee's estate at such time), (i) within thirty (30) days
following the date of Employee's death or termination, the Salary, if any,
accrued and unpaid through the date of termination, and shall pay and provide
the amounts and items payable and to be provided under Sections 6.A., B. and C.
through the date of termination, and (ii) at the time or times usually payable,
any unpaid Bonus Amount earned and accrued through the date of termination of
employment; and Employee (or such legal guardian, legal representative and
heirs) shall not be entitled to any other compensation, remuneration or other
sums provided for in this Employment Agreement or to which Employee might
otherwise be entitled hereunder or at law or in equity.
E. COMPENSATION UPON TERMINATION WITHOUT CAUSE OR CONSTRUCTIVE
TERMINATION. In the event that Employer (or its successor) terminates Employee's
employment under this Employment Agreement without Cause (other than in
connection with or in contemplation of a Change in Control (as hereinafter
defined) as provided in Subsection G. below) or Employee terminates his
employment as a result of the occurrence of a Constructive Termination to the
extent and in the manner permitted hereunder, Employee's sole and exclusive
compensation, remuneration and remedy hereunder or at law or in equity shall be
to receive from Employer, and Employer shall pay and/or provide to Employee, (i)
the amount of Salary and Bonus Amount, if any, accrued and unpaid through the
date of termination, and the amounts and items payable or to be provided under
Sections 6.A., B. and C. through the date of termination, payable within thirty
(30) days following the date of termination of employment, and (ii) a lump sum
payment in the amount of $600,000 to be paid within thirty (30) days following
the date of termination. Notwithstanding anything to the contrary contained in
this Subsection E., if termination of employment without Cause or as a result of
Constructive Termination occurs before a Change in Control and this Subsection
E. is followed by the parties, but within one hundred eighty (180) days
thereafter with respect to termination of employment without Cause or as a
result of Constructive Termination a Change in Control (as hereinafter defined)
occurs, then Subsection G. shall supersede this Subsection E. and the balance of
the unpaid amounts of the severance and other payments required under Subsection
G. shall be immediately (but in all events within thirty (30) days after such
Change in Control) paid by Employer (or its successor) to Employee.
F. KEY-MAN INSURANCE. In the event that Employer obtains a
key-man insurance policy (the "Policy") on the life of Employee, Employer shall
be the sole owner thereof and all proceeds payable in respect thereof shall be
the property solely of Employer. In the event that Employee's employment
terminates for any reason other than Employee's death, Employee may request that
the Policy be assigned to Employee by giving written notice to Employer to that
effect. Subject to obtaining any requisite
6
<PAGE> 7
consent from the insurer, Employer shall, if Employee has so requested, assign
the Policy to Employee subject to Employee's reimbursement to Employer of any
premiums paid by Employer which relate to any period following the date of
termination of Employee's employment, and the cash value, if any, of the Policy.
In the event that Employer desires to obtain any such Policy, Employee shall
fully cooperate in Employer's efforts, including submitting to medical exams and
tests and executing and delivering applications and information statements.
G. COMPENSATION UPON A CHANGE IN CONTROL. Notwithstanding the
provisions of Subsection E. above, in the event that (i) Employer (or its
successor) terminates Employee's employment under this Employment Agreement
without Cause within one hundred eighty (180) days before or one (1) year after
a Change in Control, (ii) Employee terminates his employment to the extent and
in the manner permitted under this Employment Agreement as a result of the
occurrence of a Constructive Termination within one hundred eighty (180) days
before or one (1) year after a Change in Control or (iii) Employer (or its
successor) (but not Employee) delivers to Employee a written notice of
termination pursuant to Section 2 terminating this Employment Agreement at the
expiration of the Employment Term and such expiration occurs within one hundred
twenty (120) days before or one (1) year after a Change in Control, Employee's
sole and exclusive compensation, remuneration and remedy hereunder or at law or
in equity shall be to receive from Employer (or its successor), and Employer (or
its successor) shall pay to Employee within thirty (30) days following the date
of termination of employment or expiration (as the case may be), (a) the amount
of Salary and Bonus Amount, if any, accrued and unpaid through the date of
termination of employment or expiration, and the amounts and items payable or to
be provided under Sections 6.A., B. and C. through the date of termination of
employment or expiration, and (b) a lump sum severance payment in cash equal to
2.99 times an amount equal to the average of the sum of the annual Salary
(annualized for any partial calendar year) and Bonus Amount (or the aggregate
annual amount of the quarterly bonus amounts (annualized for any partial
calendar year)) paid to Employee each calendar year during the last five (5)
calendar years of his employment by Employer (or such lesser number of calendar
years in which Employee was employed by Employer) preceding the calendar year in
which the Change in Control occurred. For purposes of this Subsection G., (1) a
"Change in Control" means that (x) neither Mark Gordon (for these purposes,
counting all common stock directly or indirectly beneficially owned by Mark
Gordon's Affiliates) nor David Epstein (for these purposes, counting all common
stock directly or indirectly beneficially owned by David Epstein's Affiliates)
beneficially owns at least 10% of the issued and outstanding common stock of
Employer (or its successor); (y) neither Mark Gordon (for these purposes,
counting all common stock directly or indirectly beneficially owned by Mark
Gordon's Affiliates) nor David Epstein (for these purposes, counting all common
stock directly or indirectly beneficially owned by David Epstein's Affiliates)
is the
7
<PAGE> 8
stockholder of Employer (or its successor) beneficially owning the highest
number of issued and outstanding shares of common stock of Employer (or its
successor); or (z) Mark Gordon and/or David Epstein do not occupy the positions
of Chairman of the Board and Chief Executive Officer of Employer (or its
successor); (2) "Affiliate" means, with respect to Mark Gordon or David Epstein,
an immediate family member of his, a trust principally for his benefit and/or
the benefit of his family members and/or lineal descendants, or a family limited
partnership or any other entity the direct or indirect beneficial or pecuniary
owners of which are principally him, his immediate family members and/or trusts
or other entities principally for the benefit of him, his family members and/or
lineal descendants; and (3) "Immediate family members" mean, with respect to
Mark Gordon or David Epstein, his spouse, children, parents, siblings or other
lineal descendants. For purposes of clause (a) of this Subsection G., any Bonus
Amount for a partial year of employment shall be prorated through the date of
such termination or expiration based upon the prior year's Bonus Amount (or
aggregate amount of the quarterly bonus amounts, if any, for such prior year)
and for purposes of clause (a) or clause (b) of this Subsection G., if Employee
has not previously earned a Bonus Amount (or any quarterly bonus amount) during
the last five (5) years of his employment by Employer, the Bonus Amount shall be
deemed to be $200,000. Nothing in this Subsection G. shall be deemed to limit
Employee's rights as provided under Subsection E. with respect to a termination
without Cause or Constructive Termination occurring more than 180 days before or
more than one (1) year after a Change in Control.
10. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
A. CONFIDENTIAL INFORMATION. Employee acknowledges that
Employee has been informed by Employer of Employer's policy to maintain as
secret and confidential all information and materials relating to (i) the
financial condition, operations, business and interests of Employer, (ii) the
systems, know-how, records, products, services, cost information, inventions,
computer and Internet software, marketing and sales techniques and/or programs,
methods, methodologies, manuals, lists and other trade secrets from time to time
acquired, sold, developed, maintained and/or used by Employer, and (iii) the
nature and terms of Employer's relationships with its clients, suppliers,
lenders, underwriters, vendors, consultants, independent contractors, attorneys,
accountants and employees (all such information and materials being hereinafter
collectively referred to as "Confidential Information"). Employee further
acknowledges that such Confidential Information is of great value to Employer
and has been developed by Employer as a result of substantial effort and
expense. Therefore, Employee understands that it is reasonably necessary to
protect Employer's good will, trade secrets and legitimate business interests
that Employee agree and, accordingly, Employee does hereby agree, that Employee
will not directly or indirectly (except where authorized by the Board of
Directors,
8
<PAGE> 9
Chairman of the Board, Chief Executive Officer or President of Employer for the
benefit of Employer and/or as required in the course of employment) at any time
hereafter divulge or disclose for any purpose to any persons, firms,
corporations or other entities (hereinafter referred to collectively as "Third
Parties"), or use or cause or authorize any Third Parties to use, any such
Confidential Information, except as otherwise required by law.
B. EMPLOYER'S MATERIALS. In accordance with the foregoing,
Employee furthermore agrees that (i) Employee will at no time retain or remove
from the premises of Employer any products, prototypes, drawings, notebooks,
computer or Internet software or discs, tapes or similar containers of software,
manuals, data, books, records, materials or documents of any kind or description
for any purpose unconnected with the strict performance of Employee's duties
with Employer and (ii) upon the cessation or termination of Employee's
employment with Employer for any reason, Employee shall forthwith deliver or
cause to be delivered to Employer any and all drawings, notebooks, software
programs or discs, tapes or similar containers of software, manuals, data,
books, records, materials and other documents and materials in Employee's
possession or under Employee's control relating to any Confidential Information
or any other material or thing which is the property of Employer.
11. COVENANT-NOT-TO-COMPETE
In view of (a) the Confidential Information known to and to be
obtained by or disclosed to Employee, and (b) the consideration paid and payable
to Employee under this Employment Agreement, and as a material inducement to
Employer to enter into this Employment Agreement, Employee covenants and agrees
that, for as long as Employee is employed by Employer and for a period of two
(2) years after the date Employee ceases for any reason to be employed by
Employer, Employee shall not, directly or indirectly, (A) sell any products or
services sold or offered by Employer to any person or entity for or to whom
Employer is performing services or selling products or for or to whom Employer
has performed services or sold products at any time during the one-year period
ending on Employee's termination of employment, (B) solicit the services of, or
hire, directly or indirectly, whether on Employee's own behalf or on behalf of
others, any managerial, finance or executive employee, account manager or
marketing or sales personnel or information services or database management
personnel (including, without limitation, programmers or network or other
information services or Internet operation employees) of Employer or who was
employed by Employer at any time during the one-year period ending on the date
of termination of Employee's employment, or (C) in any capacity engage in any
venture, enterprise, activity or business, passively or actively, as an owner,
consultant, adviser, participant, officer, director, employee or agent,
competitive with the business of Employer in the areas of teleservicing,
Internet, database management and marketing or
9
<PAGE> 10
fulfillment services anywhere within the continental United States (other than
passive ownership of less than 1% of the outstanding equity of a publicly-traded
competitor). Employee acknowledges that the business of Employer is national in
scope, that one can effectively compete with such business from anywhere in the
continental United States, and that, therefore, such geographical area of
restriction is reasonable in the circumstances to protect Employer's trade
secrets and other legitimate business interests.
12. EMPLOYER'S REMEDIES FOR BREACH OF SECTIONS 10 AND 11
Employee covenants and agrees that if Employee shall violate
or breach any of Employee's covenants or agreements provided for in Section 10
or 11 hereof, Employer shall be entitled to an accounting and repayment of all
profits, compensation, commissions, remunerations and benefits which Employee
directly or indirectly has realized and realizes as a result of, growing out of
or in connection with any such violation or breach. In addition, in the event of
a breach or violation or threatened or imminent breach or violation of any
provisions of Section 10 or 11 hereof, Employer shall be entitled to a temporary
and permanent injunction or any other appropriate decree of specific performance
or equitable relief (without being required to post bond or other security) from
a court of competent jurisdiction in order to prevent, prohibit or restrain any
such breach or violation or threatened or imminent breach or violation by
Employee, by Employee's partners, agents, representatives, servants, employers
or employees and/or by any Third Parties. Employer shall be entitled to such
injunctive or other equitable relief in addition to any ascertainable damages
which are suffered, together with reasonable attorneys' and paralegals' fees and
costs and other costs incurred in connection with any such litigation, both
before and at trial and at all tribunal levels. It is understood that resort by
Employer to such injunctive or other equitable relief shall not be deemed to
waive or to limit in any respect any other rights or remedies which Employer may
have with respect to such breach or violation.
13. REASONABLENESS OF RESTRICTIONS
A. REASONABLENESS. Employee acknowledges that any breach or
violation of Section 10 or 11 hereof will cause irreparable injury and damage
and incalculable harm to Employer and that it would be very difficult or
impossible to measure all of the damages resulting from any such breach or
violation. Employee further acknowledges that Employee has carefully read and
considered the provisions of Sections 10, 11 and 12 hereof and, having done so,
agrees that the restrictions and remedies set forth in such Sections (including,
but not limited to, the time period, geographical and types of restrictions
imposed) are fair and reasonable and are reasonably required for the protection
of the business, trade secrets, interests and good will of Employer.
10
<PAGE> 11
B. SEVERABILITY. Employee understands and intends that each
provision and restriction agreed to by Employee in Sections 10, 11 and 12 hereof
shall be construed as separate and divisible from every other provision and
restriction. In the event that any one of the provisions of, or restrictions in,
Sections 10, 11 and/or 12 hereof shall be held to be invalid or unenforceable,
and is not reformed by a court of competent jurisdiction (which a court, in lieu
of striking a provision entirely, is urged by the parties to do), the remaining
provisions thereof and restrictions therein shall nevertheless continue to be
valid and enforceable as though the invalid or unenforceable provisions or
restrictions had not been included. In the event that any such provision
relating to time period, geographical and/or type of restriction shall be
declared by a court of competent jurisdiction to exceed the maximum or
permissible time period, geographical or type of restriction such court deems
reasonable and enforceable, said time period, geographical and/or type of
restriction shall be deemed to become and shall thereafter be the maximum time
period or geographical area and/or type of restriction which such court deems
reasonable and enforceable.
C. SURVIVABILITY. The restrictions, acknowledgments, covenants
and agreements of Employee set forth in Sections 10, 11, 12 and 13 of this
Employment Agreement shall survive any termination of this Employment Agreement
or of Employee's employment (for any reason, including expiration of the
Employment Term).
14. LAW APPLICABLE
This Employment Agreement shall be governed by and construed
pursuant to the laws of the State of Florida.
15. NOTICES
Any notices required or permitted to be given pursuant to this
Employment Agreement shall be sufficient if in writing, and delivered
personally, by commercial courier service or sent by certified mail, return
receipt requested, and sent to Employer's executive offices, to the attention of
the President, if to Employer, and to Employee's then current residence, if to
Employee.
16. SUCCESSION
This Employment Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective legal representatives,
heirs, assignees and/or successors in interest of any kind whatever; PROVIDED,
HOWEVER, that Employee acknowledges and agrees that Employee cannot assign or
delegate any of Employee's rights, duties, responsibilities or obligations
hereunder to any other person or entity. Employer shall have the right to assign
its rights and delegate its duties under this Employment Agreement, provided
that, in the event of any such
11
<PAGE> 12
assignment, Employer shall remain liable for all of its obligations
hereunder.
17. ENTIRE AGREEMENT
This Employment Agreement constitutes the entire final
agreement between the parties with respect to, and supersedes any and all prior
and contemporaneous agreements between the parties hereto both oral and written
(including, without limitation, that certain Employment Agreement dated as of
August 9, 1996, by and between Employer and Employee, as previously amended by
that certain Amendment to Employment Agreement dated as of November 10, 1997)
concerning, the subject matter hereof and may not be amended, modified or
terminated except by a writing signed by the parties hereto.
18. SEVERABILITY
If any provision of this Employment Agreement shall be held to
be invalid or unenforceable, and is not reformed by a court of competent
jurisdiction, such invalidity or unenforceability shall attach only to such
provision and shall not in any way affect or render invalid or unenforceable any
other provision of this Employment Agreement, and this Employment Agreement
shall be carried out as if such invalid or unenforceable provision were not
herein contained.
19. NO WAIVER
A waiver of any breach or violation of any term, provision or
covenant herein contained shall not be deemed a continuing waiver or a waiver of
any future or past breach or violation. No oral waiver shall be binding.
20. ATTORNEYS' FEES
In the event that either of the parties to this Employment
Agreement institutes suit against the other party to this Employment Agreement
to enforce or declare any of their respective rights hereunder, the prevailing
party in such action shall be entitled to recover from the other party all
reasonable costs thereof, including reasonable attorneys' and paralegals' fees
and costs incurred before and at trial and at all tribunal levels, and whether
or not suit or any other proceeding is instituted.
21. COUNTERPARTS
This Employment Agreement may be executed in counterparts,
each of which shall be an original, but both of which together shall constitute
one and the same instrument.
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<PAGE> 13
22. INDEPENDENT COUNSEL
EMPLOYER STRONGLY RECOMMENDS TO EMPLOYEE THAT EMPLOYEE RETAIN
INDEPENDENT LEGAL COUNSEL TO ADVISE EMPLOYEE WITH RESPECT TO THIS EMPLOYMENT
AGREEMENT BEFORE EMPLOYEE SIGNS IT.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands on
the day and year first above written.
EMPLOYER:
PRECISION RESPONSE CORPORATION, a
Florida corporation
By: /s/ David L. Epstein
-----------------------------------
David L. Epstein,
Chief Executive Officer
EMPLOYEE:
/s/ Paul M. O'Hara
-----------------------------------
PAUL M. O'HARA
13
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information from the Company's
consolidated financial statements as of and for the nine months ended September
30, 1999 and is qualified in its entirety by reference to such consolidated
financial statements and notes thereto.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 2,431
<SECURITIES> 0
<RECEIVABLES> 43,800
<ALLOWANCES> 1,712
<INVENTORY> 0
<CURRENT-ASSETS> 53,261
<PP&E> 120,812
<DEPRECIATION> 41,095
<TOTAL-ASSETS> 139,811
<CURRENT-LIABILITIES> 30,690
<BONDS> 21,202
0
0
<COMMON> 216
<OTHER-SE> 85,331
<TOTAL-LIABILITY-AND-EQUITY> 139,811
<SALES> 0
<TOTAL-REVENUES> 153,344
<CGS> 0
<TOTAL-COSTS> 126,941
<OTHER-EXPENSES> 15,211
<LOSS-PROVISION> 1,478
<INTEREST-EXPENSE> 751
<INCOME-PRETAX> 8,963
<INCOME-TAX> 3,637
<INCOME-CONTINUING> 5,326
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,326
<EPS-BASIC> 0.25
<EPS-DILUTED> 0.25
</TABLE>
