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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED JUNE 30, 1997
Commission File No. 0-21527
MEMBERWORKS INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 06-1276882
-------- ----------
(State of Incorporation) (I.R.S. Employer
Identification No.)
680 Washington Blvd.; Suite 1100;
Stamford, Connecticut 06901
- --------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
(203) 324-7635
--------------
(Registrant's telephone number,
including area code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT: None
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
Common Stock, $0.01 Par Value
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K.[ ]
The aggregate market value of the voting stock held by non-affiliates of the
Registrant at September 15, 1997 was $121,771,818. The aggregate market value
was computed by reference to the closing price of the Registrant's Common Stock
as of that date. (For purposes of calculating this amount only, all directors,
executive officers and shareholders reporting beneficial ownership of more than
10% of the Registrant's Common Stock are considered to be affiliates.) The
number of shares of Common Stock outstanding as of September 15, 1997 was
14,727,807.
DOCUMENTS INCORPORATED BY REFERENCE:
Portions of the Proxy Statement for the 1997 Annual Meeting of Stockholders of
MemberWorks Incorporated are incorporated by reference in Part III of this
report.
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PART I
Item 1. Business
BACKGROUND
MemberWorks believes, based on its senior management's extensive knowledge
of the industry and its relationships with major credit card issuers in banking,
oil and retail, that it is a leading designer and provider of innovative
membership service programs. MemberWorks designs and manages innovative
membership programs providing substantial benefits to member consumers, those
organizations offering the programs and vendors whose products and services are
offered through the programs. The Company addresses the needs of organizations
seeking to leverage the expertise of an outside provider in offering these
programs. In return for providing the Company with customer lists, the Company's
clients receive royalty payments. Clients also benefit because the programs are
designed and managed to strengthen the relationship between clients and their
customers. MemberWorks offers its programs to increasingly sophisticated
consumers seeking economy, efficiency and convenience in their purchase of
products and services. Members save time by telephonically purchasing goods and
services and obtaining useful information. Members also benefit because the
vendors agree to allow discounts on products and services not generally
available to non-members. For participating vendors, the programs provide the
opportunity to reach a large number of demographically attractive members at
minimal incremental marketing cost. The Company's programs are primarily
marketed to credit card holders through arrangements with its client
organizations including banks, retailers, major oil companies and other credit
card issuers.
Businesses which sell services and products to consumers have
substantially increased the use of direct marketing techniques to reach their
customers. The estimated total consumer sales as a result of direct marketing in
the United States were approximately $630 billion in 1996. The Company believes
that membership service programs are one of the fastest growing areas of direct
marketing. Membership service programs, if designed, marketed and managed
effectively, can be of substantial value to the consumers who become members of
such programs, to the businesses which market to consumers and to the client
organizations, such as credit card issuers, banks, insurance companies and
others, which offer the programs to their customers.
Historically, a substantial number of the businesses which utilize
membership service programs have been issuers of credit cards. More recently,
however, other businesses, including retailers, resort operators, banks,
insurance companies and non-profit organizations have also begun to offer
service programs. In many cases, these businesses lack the core competency to
successfully design, market and manage membership programs. As a result, these
businesses seek to outsource to companies which are able to apply advanced
database systems to capture, process and store consumer and market information,
are able to use their experience to provide effective programs, and are able to
realize economies of scale. In addition, businesses seeking to implement
membership service programs demand that the provider of those programs have the
expertise to continue to introduce innovative new programs and that the provider
have such resources as extensive vendor networks and experienced management
teams, in order to market programs quickly and successfully.
DESCRIPTION OF BUSINESS
The Company's nine membership service programs, which combined had
approximately 2.0 million members as of June 30, 1997, offer unique and valuable
services, information and savings opportunities. The service programs are
marketed under the name of the program on behalf of the client and are designed
and developed to capitalize on the client's existing relationship with its
customers or other constituents. In general, membership fees, which may be
payable monthly or annually depending on the program, ranged from approximately
$40 per year to approximately $107 per year during fiscal 1997. The Company can
create customized service programs for clients based on elements of its standard
programs. Currently, the Company markets the following nine programs.
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- HealthTrends(R) is a unique membership program for the health conscious
individual or family, providing convenient information and substantial
savings on quality health and personal care services and maintenance.
- The Countrywide Dental Program(R) ("CDP") consists of a network of
independent dentists in 47 states who have agreed to accept a reduced fee
schedule for subscribers in the program. CDP is not an insurance plan, but
can be used with any dental insurance program to reduce a member's insurance
co-payments.
- The Countrywide Dental and Health Program(SM) offers a combination of
benefits from the Company's Countrywide Dental Program(R) and
HealthTrends(R) services. This combined service provides members and
their families dental services at special discounted rates in addition to
substantial discounts on eyewear, pharmaceuticals, hearing aids and
chiropractic benefits.
- Travel Arrangements(SM) is a comprehensive discount travel program that
offers substantial savings and convenience on a broad range of business,
leisure, and vacation travel services.
- Connections(SM) is designed to provide savings to members on a broad range
of entertainment and leisure time activities and contains a shopping service
for substantial savings on a wide array of merchandise.
- Leisure Advantage(SM) provides discounts on many types of sports and
athletic merchandise, apparel, and services.
- MoneyMaster(SM) helps members plan for and manage their personal finances,
taxes, insurance, and retirement planning. This service complements and can
integrate some of the benefits currently offered by the Company's financial
institution clients.
- Home PC Link(SM) offers a wide range of assistance to the first time
computer purchaser as well as to existing users seeking information on
upgrading their systems and enhancements.
- Essentials(SM) offers fitness, fashion and beauty services for men and
women, through discounts on clothing, haircuts, health clubs and nutrition
counseling.
In general, members subscribe for renewable one-year memberships in the
Company's programs. When consumers agree to enroll in a program, they generally
receive a trial membership. During this time, the member may use the program's
services without obligation, as outlined in a membership brochure received by
mail along with a membership card and membership identification number. The
brochure outlines in detail the benefits which the service offers and contains
toll free numbers which may be called to access service benefits and
information. In the event that a consumer elects not to participate in the
service, he or she can call a toll free number during the trial period to cancel
the service without charge. Trial memberships are generally for a period of 30
days and there are no conditions with respect to the ability of the consumer to
terminate a trial membership. The Company does not record any revenue with
respect to trial memberships.
If the membership is not canceled during the trial period, the consumer is
charged the annual membership fee. In the event that the member does not cancel
the membership after the initial membership term, he or she generally receives a
renewal kit in the mail in advance of each membership year and is charged for
the succeeding year's membership fee. During the course of an initial annual
membership term or renewal term, a member is free to cancel a membership in the
program, generally for a complete refund of the membership fee for that period.
The Company offers its service programs to consumers through clients, such
as credit card issuers, who have an existing relationship with those consumers.
The client provides the Company with lists of consumers which the Company inputs
into its database management system to model, analyze and identify likely
members. The Company pays the client an annual royalty for initial and renewal
membership fees received by the Company from consumers provided to it by the
client. The royalties paid to clients by the Company average approximately 20%
of initial and renewal membership fees.
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The Company has developed a consultative product development process
coordinating the efforts of its sales and marketing group with those of its
client management group in order to anticipate client needs for new product
offerings. The Company's senior management works with both of these groups to
develop and refine new program concepts and then to introduce the new program.
An important factor in the Company's ability to develop innovative programs is
its emphasis on telemarketing, which allows it to obtain and analyze market
trend information quickly. The Company believes this method of product
development has allowed it to respond quickly and effectively to market demand
for new programs.
The Company believes that it was the first membership company to introduce
aggregated discount services in the areas of health, sports, fashion and beauty,
financial and personal computer programs. The Company also believes that all of
its programs are innovative with respect to the variety and quality of
particular services, discounts and other features which those programs offer. By
bundling and reconfiguring various features of its standard programs, the
Company can customize a program to the particular needs and demands of its
clients.
WHOLESALE PROGRAMS
In addition to marketing its programs directly to consumers through lists
provided by credit card issuers and other businesses and organizations, the
Company has begun to provide membership service programs on a wholesale basis.
Typically, the Company works with a wholesale client to incorporate elements
from one or more of its standard service programs in the design of a custom
program for the client. The client will then provide the membership in the
customized format to its customers as a value-added feature. The client pays the
Company the membership fees for the customers who receive the service program.
Wholesale programs substantially reduce the cost for the Company to acquire new
members, which results in higher profit margins for the Company. Accordingly,
the Company provides membership in the service program for fees which are less
than the Company's standard fees for the program. To date, substantially all of
the Company's revenues have been from individual memberships.
MEMBER SERVICE
The Company believes that providing high quality service to its members is
extremely important in order to encourage memberships and to strengthen the
affinity of those members for the client which offered the service program.
Currently, the Company maintains two call centers located in Omaha, Nebraska and
Houston, Texas, with a total of approximately 270 membership service
representatives. The Company's service centers are available to members, toll
free, 24 hours-a-day, seven days-a-week. All new membership service
representatives are required to complete a two-week classroom training course
before beginning to take calls and attend on-the-job training thereafter.
Through both its training programs, its systems and its software, the Company
seeks to provide members with friendly, rapid and effective answers to
questions. The Company also works closely with its clients' customer service
staffs to ensure that their representatives are knowledgeable in matters
relating to membership service programs offered by the Company.
TECHNOLOGY
The Company has invested substantially in advanced management information
systems to allow it to operate its business more efficiently and productively.
Accordingly, the Company has developed proprietary software that is designed to
accept its clients' customer databases for review, analysis and modeling in
order to identify likely members. The Company receives new member information
from telemarketers on a daily basis, and the system routes that data to other
Company facilities for member fulfillment and allows the Company to mail member
information kits to new members very rapidly. The system also receives
confirmation of billing data from the Company's merchant processors on a regular
basis, permitting the Company to update the status of each member, including
member profile information.
In providing quality service to its members, the Company's management
information system interacts with the Company's advanced call routing system to
prepare the Company's membership service representatives to better serve members
by displaying a member's profile prior to receiving the call. The Company's
telecommunications systems also monitor the performance quality of its
membership service representatives and other aspects of its business through
sophisticated reporting capabilities. In addition, the Company's marketing
experts use both the
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Company's proprietary systems and advanced systems from outside vendors to
review, analyze and model the demographics of lists of prospective members
supplied by clients, in order to determine which customers are most likely to
respond to an offer and retain their membership.
FULFILLMENT
In most cases the products and services offered to members through the
Company's programs are provided directly to the members by independent vendors.
The Company evaluates and engages only those vendors which can cost-effectively
deliver high quality products and services. Vendors generally benefit by gaining
significant volume demand with minimal associated marketing expense.
Accordingly, vendors gain access and marketing exposure to the Company's
membership base and, pursuant to contractual arrangements with the Company,
generally quote a discount price. The Company receives no material payments from
these vendors for rendering services to the Company's members and, in certain
cases, the Company pays its vendors a fee based on the volume of members in the
Company's program or based on other agreed upon factors.
The Company's contracts with its vendors are generally for a one year
term, with subsequent one year renewal terms at the option of the Company.
Vendors may cancel contracts with the Company but, in most cases, only for cause
and subject to notice provisions to provide the Company time to locate a
substitute vendor. Most vendor contracts are non-exclusive, but have
requirements that the vendors maintain the confidentiality of the terms of the
contract.
SALES AND MARKETING
The Company solicits members for its programs primarily by direct
marketing methods, including telemarketing, which it outsources to third party
contractors. To a lesser extent the Company uses direct mail, either as a solo
piece mailed at its own expense or at its client's expense. Some of the
Company's individual memberships are available on-line to interactive computer
users through the World Wide Web.
The Company primarily offers its programs to consumers listed in databases
provided to it by clients. The Company's proprietary software and systems permit
it to accept this information from a client in electronic form. Marketing
specialists at MemberWorks are then able to review, analyze and model the
information on the database in order to design and implement an effective
telemarketing program. In addition, the Company has recently begun to sell
service programs on a wholesale basis. Under those programs, the Company does
not pay for the marketing costs to solicit memberships. Instead, the client
offering the memberships is responsible for marketing, usually with the
assistance of the Company. In some cases, the client may provide wholesale
memberships to its customers free of charge and pay the periodic membership fee
to the Company for each customer membership. In other cases, the client may
charge a reduced fee to its customer.
The Company's sales strategy is to establish and maintain long-term
relationships with those clients who offer its programs. The Company employs a
consultative sales process to understand and define client needs and to
determine how those needs can be addressed by the membership service programs
which the Company offers. MemberWorks seeks to build upon its existing customer
relationships by integrating and cross-selling its different membership service
programs.
DISTRIBUTION
The Company arranges with client financial institutions, retailers, oil
companies and other credit card issuers to market membership programs to such
clients' individual account holders and customers. Clients generally receive
royalties on initial and renewal memberships. The Company's contracts with these
clients typically grant the Company the right to continue providing membership
services directly to such clients' individual account holders even if the client
terminates the contract, provided that the client continues to receive its
royalties. Currently, the Company has 43 credit card issuer clients to whom it
is obligated to pay royalties, including 16 of the top 25 issuers of bank credit
cards, three of the top five issuers of oil company credit cards and the leading
issuer of retail company credit cards.
The Company is also actively developing new distribution channels.
MemberLink(SM) is an arrangement where inbound callers to a client, meeting
certain criteria, are offered the Company's membership service programs
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by the client's service representative or by a MemberWorks membership service
representative through a call transfer. Access and information about several of
the Company's membership service programs are also available through client home
pages on the World Wide Web.
The Company obtains substantially all of the information necessary to the
Company's marketing efforts from customer lists supplied by its clients. Clients
provide the lists to the Company for use in marketing a single, specific program
which has been pre-approved by the client. As a result, the Company's ability to
market a new program to an existing customer base or an existing program to a
new customer base is dependent on first obtaining approval from a client.
Most client relationships are pursuant to contracts which may be
terminated by the client upon 30 to 90 days notice without cause and without
penalty. Upon such termination, the Company generally has the right to continue
its relationship with the client's customers that have become program members
for a specified period to substantially the same extent as prior to the
termination, but may not resolicit those members upon such member's cancellation
or non-renewal of the member's membership.
Approximately 30.7% and 13.8% of the Company's revenues for the year ended
June 30, 1997 were attributable to members solicited from the customer lists
provided by Sears and Capital One, respectively.
GOVERNMENT REGULATION
The primary means which the Company uses to market its programs is
telemarketing. The telemarketing industry has become subject to an increasing
amount of Federal and state regulation as well as general public scrutiny in the
past several years. The Federal Telephone Consumer Protection Act of 1991 limits
the hours during which telemarketers may call consumers and prohibits the use of
automated telephone dialing equipment to call certain telephone numbers. The
Federal Telemarketing and Consumer Fraud and Abuse Prevention Act of 1994 and
Federal Trade Commission ("FTC") regulations promulgated thereunder, prohibit
deceptive, unfair or abusive practices in telemarketing sales. Both the FTC and
state attorneys general have authority to prevent telemarketing activities that
constitute "unfair or deceptive acts or practices." Additionally, some states
have enacted laws and others are considering enacting laws targeted directly at
telemarketing practices, and there can be no assurance that any such laws, if
enacted, will not adversely affect or limit the Company's current or future
operations. Compliance with these regulations is generally the responsibility of
the Company, and the Company could be subject to a variety of enforcement or
private actions for any failure to comply with such regulations. The Company's
provision of membership programs requires the Company to comply with certain
state regulations, changes in which could materially increase the Company's
operating costs associated with complying with such regulations. The risk of
noncompliance by the Company with any rules and regulations enforced by a
Federal or state consumer protection authority may subject the Company or its
management to fines or various forms of civil or criminal prosecution, any of
which could materially adversely affect the Company's business, financial
condition and results of operations. Also, the media often publicizes perceived
non-compliance with consumer protection regulations and violations of notions of
fair dealing with consumers, and the membership programs industry is susceptible
to peremptory charges by the media of regulatory noncompliance and unfair
dealing.
COMPETITION
Competition in the membership services market for clients, such as credit
card issuers, is intense. Several of the Company's competitors offer membership
programs which provide services similar to, or which directly compete with,
those provided by the Company. Because contracts between clients and program
providers are often exclusive with respect to a particular service, potential
clients may be prohibited from contracting with the Company to promote a program
if the services provided by the Company's program are similar to, or merely
overlap with, the services provided by an existing program of a competitor. Most
of the Company's clients provide, either directly or through third parties,
programs offered by the Company's competitors, and the Company's agreement with
Sears, its principal client, permits Sears to offer its customers programs that
directly compete with those offered by the Company. Competition for new members
is also intense, particularly as the market becomes saturated with customers who
are already members of competing programs. The Company's principal competitor is
CUC International Inc. ("CUC"). The Company's other competitors include large
retailers, travel agencies,
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financial institutions and other organizations. There can be no assurance that
the Company's competitors will not increase their emphasis on programs similar
to those offered by the Company and more directly compete with the Company, that
new competitors will not enter the market, or that other businesses will not
themselves introduce competing programs.
Many of the Company's current and prospective competitors, including CUC,
have substantially larger customer bases and greater financial and other
resources than the Company. There can be no assurance that the Company's current
or potential competitors will not provide programs comparable or superior to
those provided by the Company at lower membership prices or adapt more quickly
than the Company to evolving industry trends or changing market requirements. In
addition, alliances among competitors may emerge and rapidly acquire significant
market share. Increased competition may result in price reductions, reduced
gross margins and loss of market share, any of which could materially adversely
affect the Company's business, financial condition and results of operations.
There can be no assurance that the Company will be able to compete effectively
against current and future competitors.
The Company believes that the principal competitive factors in the
membership services industry include the ability to identify, develop and offer
innovative service programs, the quality and breadth of service programs
offered, price and marketing expertise. The Company believes that its ability to
compete also depends in part on a number of competitive factors outside its
control, including the ability to hire and retain employees, the development by
others of service programs that are competitive with the Company's service
programs, the price at which others offer comparable service programs and the
extent of the Company's competitors' responsiveness to customer needs.
Providers of membership programs compete for client marketing budget
dollars with other marketing activities and, in particular, other forms of
direct marketing activities, such as direct mail. In recent years, there have
been significant advances in new forms of direct marketing, such as the
development of interactive shopping and data collection through television, the
Internet and other media. Many industry experts predict that electronic
interactive commerce, such as shopping and information exchange through the
World Wide Web, will proliferate significantly in the foreseeable future. To the
extent such proliferation occurs, it could have a material adverse effect on the
demand for membership programs. Furthermore, as the telemarketing industry
continues to grow, the effectiveness of telemarketing, which is the Company's
major means of marketing its programs, as a direct marketing tool may decrease
as a result of increased consumer resistance to telemarketing in general.
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EMPLOYEES
As of June 30, 1997, the Company employed 463 persons on a full-time basis
and 35 on a part-time basis. None of the Company's employees are represented by
a labor union. The Company believes that its employee relations are good.
Item 2. Properties
The Company leases space in Stamford, Connecticut, Omaha, Nebraska and
Houston, Texas. The Stamford office serves as the Company's headquarters. The
Omaha and Houston locations are primarily call centers for membership services
representatives, operations and telemarketing personnel. The Omaha location is
also the Company's main computer and telecommunications systems center and
contains member fulfillment and warehouse facilities.
A summary of key information with respect to the Company's leased
facilities is as follows:
<TABLE>
<CAPTION>
Location Square Footage Year of Lease Expiration
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<S> <C> <C>
Stamford, CT..................... 27,550 2006
Omaha, NE........................ 54,143 1997 through 2000
Houston, TX...................... 40,631 2006
</TABLE>
Item 3. Legal Proceedings
From time to time, the Company may be involved in litigation or in
settlement proceedings relating to claims arising out of its operations in the
normal course of business. Except as described below, the Company is not
currently a party to any legal proceedings, the adverse outcome of which,
individually or in the aggregate, could have a material adverse effect on the
Company's business, financial condition and results of operations.
On September 13, 1996, the Company and certain of its executive officers
entered into an agreement settling litigation involving a former officer of the
Company. The fulfillment of the settlement terms did not have a material impact
on the Company's business, financial condition and results of operations.
In June 1996, the Company received notice from a third party that "Money
Master" was a registered servicemark of such party and that the Company's use of
its MoneyMaster servicemark infringes such party's rights. The Company believes
that its servicemark does not infringe such party's servicemark, but there can
be no assurance that the Company will prevail in its position on this matter.
The Company has notified the other party of its position, but has not received a
response to that notification.
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Item 4. Submission of Matters to a Vote of Security Holders
No matters were submitted to a vote of security holders during the quarter
ended June 30, 1997.
EXECUTIVE OFFICERS OF REGISTRANT
The executive officers of registrant of the Company, and their
respective ages as of June 30, 1997, are as follows:
<TABLE>
<CAPTION>
Name Age Position
- ---- --- --------
<S> <C> <C>
Gary A. Johnson 42 President and Chief Executive Officer, Director
Dennis P. Walker 52 Executive Vice President, Director
James B. Duffy 43 Senior Vice President and Chief Financial Officer
Steven H. Levenherz 53 Senior Vice President - Administration/Law
David Schachne 36 Senior Vice President - Marketing
</TABLE>
Gary A. Johnson, a co-founder of the Company, has served as President
and Chief Executive Officer and a Director of the Company since its
inception. From 1987 to 1989, Mr. Johnson founded and served as President of
American Target Group Marketing, a marketer of membership services for
magazine publishers. From 1983 to 1987, Mr. Johnson was Vice President of
New Product Development and Marketing for CUC, a membership program services
marketing firm. From 1981 to 1983, Mr. Johnson was a Marketing Director of
the Marketing Consulting Division of General Electric. Mr. Johnson received
a B.S. from Tufts University and an M.B.A. from Harvard Business School.
Dennis P. Walker, a co-founder of the Company, has served as Executive
Vice President and a Director of the Company since its inception. Prior to
founding MemberWorks, Mr. Walker founded and served as President of Walker
Enterprises, a direct marketing and credit card merchandising business from
1978 to 1988. Mr. Walker received a B.A. from the University of Nebraska.
James B. Duffy joined the Company as Senior Vice President and Chief
Financial Officer in June 1996. Prior to joining the Company, Mr. Duffy served
in various senior financial management positions, most recently as Senior Vice
President, Business Planning, at Merck Medco Managed Care, Inc., a prescription
benefit management company, from 1986 to 1996.
Steven H. Levenherz, Senior Vice President - Administration/ Law, joined
the Company in May 1993 and, through June 1996, served as Chief Financial
Officer. Prior to joining the Company, Mr. Levenherz was an independent
consultant in financial and mergers and acquisitions matters from 1992 through
1993 and, from 1990 to 1992 he served as Chief Financial Officer at Phoenix
Partners, a merchant banking firm. From 1987 to 1990 Mr. Levenherz served as
Senior Vice President of Financial Planning at Horsehead Industries, Inc., a
leveraged buy-out company. Mr. Levenherz received a B.B.A. from the Baruch
School of the City College of New York and a J.D. from the University of North
Carolina, Chapel Hill.
David Schachne joined the Company as Senior Vice President - Marketing
in 1990. Prior to joining the Company, Mr. Schachne was Vice President of
Sleep Technologies, Inc., a manufacturer and wholesaler of home furnishing
products. Mr. Schachne received a B.A. from the State University of New
York, Albany and his M.B.A. from Harvard Business School.
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PART II
Item 5. Market for the Registrant's Common Stock and Related Stockholder
Matters
The Company completed an initial public offering of its Common Stock, par
value $0.01 per share ("Common Stock") on October 23, 1996 at an initial price
to the public of $17.00. The Common Stock is listed on the NASDAQ National
Market (NASDAQ) under the symbol MBRS. The following table sets forth for the
periods indicated the high and low closing sale prices per share as reported on
the NASDAQ.
<TABLE>
<CAPTION>
High Low
---- ---
<S> <C> <C>
Fiscal Year Ended June 30,1997:
First Quarter N/A N/A
Second Quarter(October 18,1996 17 10 1/2
through December 31,1996)
Third Quarter 18 1/4 13
Fourth Quarter 18 1/2 14 3/4
</TABLE>
As of September 15, 1997, there were 40,000,000 shares of Common Stock
authorized of which 14,727,807 shares of Common Stock were outstanding, held of
record by approximately 1,700 stockholders. The Company has not declared or paid
any cash dividends to date and anticipates that all of its earnings in the
foreseeable future will be retained for use in its business. The Company's
future dividend policy will depend on the Company's earnings, capital
requirements, financial condition, requirements of the financing agreements to
which the Company is a party and other factors considered relevant by the Board
of Directors.
The effective date of the registration statement pursuant to which the
Company conducted the public offering of its Common Stock described above was
October 18, 1996 and the file number was 333-10541. The Company filed its
initial report on Form SR on January 27, 1997 for the period ended January 18,
1997.
From the effective date of the registration statement filed in connection
with the offering to July 31, 1997, the net proceeds of the offering were used
as follows (in thousands).
<TABLE>
<S> <C>
Purchase and installation of machinery and equipment.......... $2,473
Repayment of indebtedness..................................... $2,818
Working Capital............................................... $2,894
------
$8,185
======
</TABLE>
The remaining $28,215,000 of the proceeds has been invested in
short-term, highly rated money market funds, government securities and
commercial paper. Of the $2,818,000 used to repay indebtedness, $1,855,000
represented direct or indirect payments to directors, officers, general
partners of the issuer or their associates; to persons owning ten percent or
more of any class of equity securities of the issuer; and to affiliates of the
issuer.
Item 6. Selected Financial Data
The selected consolidated statements of operations data for each of the
years ended June 30, 1993, 1994, 1995, 1996, and 1997 and the selected
consolidated balance sheet data as of June 30, 1993, 1994, 1995, 1996, and 1997
set forth below are derived from the consolidated financial statements of the
Company, which have been audited by Price Waterhouse LLP. The selected
consolidated financial information of the Company is qualified by reference to
and should be read in conjunction with Item 8- "Consolidated Financial
Statements and Supplementary Data," and Item 7- "Management's Discussion and
Analysis of Financial Condition and Results of Operations" appearing elsewhere
herein.
<TABLE>
<CAPTION>
Year Ended June,
------------------------------------------------------------------
1993 1994 1995 1996 1997
---- ---- ---- ---- ----
(In thousands, except per share data)
<S> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENTS OF
OPERATIONS DATA:
Revenues from membership fees.................... $17,269 $25,830 $ 41,547 $57,012 $79,174
Total expenses................................... 21,527 31,846 52,279 62,259 83,032
------ ------- ---------- ------- -------
Net loss......................................... $(4,258) $(6,016) $ (10,732) $(5,247) $(3,858)
======= ======= ========== ======= =======
Net loss per share (a)........................... $ (0.42) $ (0.35)
======= =======
Weighted average common and common
equivalent shares outstanding (a)................ 12,741 13,901
======= =======
</TABLE>
(a) 1996 net loss per share and weighted average shares outstanding represent
pro-forma calculations and have been adjusted to reflect as outstanding all
Common Stock and common stock equivalents issued during the twelve-month period
preceding the October 18, 1996 initial public offering of the Company's Common
Stock, using the treasury stock method and including the number of shares issued
on October 23, 1996 necessary to redeem the Series E and F Preferred Stock.
10
<PAGE> 11
<TABLE>
<CAPTION>
June 30,
------------------------------------------------------------------
1993 1994 1995 1996 1997
---- ---- ---- ---- ----
(In thousands)
<S> <C> <C> <C> <C> <C>
CONSOLIDATED BALANCE SHEET DATA:
Cash and cash equivalents................ $ 1,017 $ 2,566 $ 5,323 $ 4,312 $40,758
Working capital (deficit)................ (4,605) (11,065) (13,410) (18,977) 7,731
Total assets............................. 13,545 23,823 29,726 41,927 84,423
Long-term obligations.................... 4,338 3,731 8,065 1,089 438
Redeemable preferred stock............... 5,216 6,096 10,926 20,487 -
Shareholders' equity (deficit)........... (12,737) (18,627) (30,367) (36,332) 14,030
</TABLE>
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Information required by this Item is attached as Appendix A.
Item 8. Financial Statements and Supplementary Data
Information required by this Item is attached as Appendix B.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
None.
PART III
Item 10. Directors and Executive Officers of the Registrant
The information contained in the Company's Proxy Statement under the
sections titled "Election of Directors" is incorporated herein by reference in
response to this item. Information regarding the Executive Officers of the
Company is furnished in Part I of this Annual Report on From 10-K under the
heading "Executive Officers of the Registrant".
Item 11. Executive Compensation
The information contained in the Company's Proxy Statement under the
section titled "Executive Compensation" is incorporated herein by reference in
response to this item.
Item 12. Security Ownership of Certain Beneficial Owners and Management
The information contained in the Company's Proxy Statement under the
section titled "Security Ownership of Certain Beneficial Owners and Management"
is incorporated herein by reference in response to this item.
Item 13. Certain Relationships and Related Transactions
The information contained in the Company's Proxy Statement under the
section titled "Certain Relationships and Related Transactions" is incorporated
herein by reference in response to this item.
11
<PAGE> 12
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K
(a) (1) Financial Statements
The following consolidated financial statements of MemberWorks
Incorporated are included in Appendix B attached hereto.
Consolidated Balance Sheets as of June 30, 1997 and 1996 Consolidated
Statements of Operations for the years ended June 30,
1997, 1996 and 1995
Consolidated Statements of Shareholders' Equity for the years ended
June 30, 1997, 1996 and 1995
Consolidated Statements of Cash Flows for the years ended June 30,
1997, 1996 and 1995
Notes to Consolidated Financial Statements
Report of Independent Accountants
(a) (2) Financial Statement Schedule
Report of Independent Accountants on Financial Statement Schedule 17
Schedule II - Valuation and Qualifying Accounts - Years ended June 30,
1997, 1996 and 1995 17
All other schedules for which provision is made in the applicable
accounting regulations of the Securities and Exchange Commission are not
required under the related instructions, or are inapplicable, and
therefore have been omitted.
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the last quarter of the period
covered by this report.
(c) Exhibits:
Exhibits filed as a part of this Annual Report on Form 10-K are listed in
the Index to Exhibits immediately preceeding the exhibits located at the
end of this Annual Report.
12
<PAGE> 13
MEMBERWORKS INCORPORATED
SIGNATURES
Pursuant to the requirements of the Section 13 or 15(d) 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.
MEMBERWORKS INCORPORATED
(Registrant)
By: /s/ Gary A. Johnson
----------------------------------
Gary A. Johnson, President, Chief
Executive Officer and Director
Date: September 29, 1997
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
By: /s/ Gary A. Johnson President, Chief Executive Officer and Director September 29, 1997
-----------------------
Gary A. Johnson
By: /s/ Dennis P. Walker Executive Vice President and Director September 29, 1997
-----------------------
Dennis P. Walker
By: /s/ James B. Duffy Senior Vice President, Chief Financial Officer September 29, 1997
-----------------------
James B. Duffy
By: /s/Stephen J. Clearman Director September 29, 1997
-----------------------
Stephen J. Clearman
By: /s/Alec L. Ellison Director September 29, 1997
-----------------------
Alec L. Ellison
By: /s/ Michael R. O'Brien Director September 29, 1997
-----------------------
Michael R. O'Brien
By: /s/ Marc S. Tesler Director September 29, 1997
-----------------------
Marc S. Tesler
</TABLE>
13
<PAGE> 14
Exhibit
No. Description
--- -----------
*3.1 Restated Certificate of Incorporation of the Registrant, to be filed
upon closing of this offering. (filed as Exhibit 3.3 to the Company's
Registration Statement on Form S-1, Registration No. 333-10541, filed
on October 18, 1996)
*3.2 Restated By-laws of the Registrant. (filed as Exhibit 3.4 to the
Company's Registration Statement on Form S-1, Registration No.
333-10541, filed on October 18, 1996)
*4.1 Amended and Restated Registration Rights Agreement, dated as of
September 9, 1994 between the Registrant and Brown Brothers Harriman
& Co. (filed as Exhibit 4.3 to the Company's Registration Statement
on Form S-1, Registration No. 333-10541, filed on October 18, 1996)
*4.2 Registration Rights Agreement, dated September 20, 1995 among the
Registrant and the Stockholders set forth on Schedule I thereto.
(filed as Exhibit 4.4 to the Company's Registration Statement on Form
S-1, Registration No. 333-10541, filed on October 18, 1996)
*10.1 Amended Employee Incentive Stock Option Plan. (filed as Exhibit 10.1
to the Company's Registration Statement on Form S-1, Registration
No. 333-10541, filed on October 18, 1996)
*10.2 1995 Executive Officers' Stock Option Plan. (filed as Exhibit 10.2 to
the Company's Registration Statement on Form S-1, Registration No.
333-10541, filed on October 18, 1996)
*10.3 1995 Non-Employee Directors' Stock Option Plan. (filed as Exhibit
10.3 to the Company's Registration Statement on Form S-1,
Registration No. 333-10541, filed on October 18, 1996)
*10.4 1996 Stock Option Plan. (filed as Exhibit 10.4 to the Company's
Registration Statement on Form S-1, Registration No. 333-10541, filed
on October 18, 1996)
*10.5 1996 Employee Stock Purchase Plan. (filed as Exhibit 10.5 to the
Company's Registration Statement on Form S-1, Registration No.
333-10541, filed on October 18, 1996)
*10.6 401(k) Profit Sharing Plan of the Registrant, dated April 1, 1996.
(filed as Exhibit 10.6 to the Company's Registration Statement on
Form S-1, Registration No. 333-10541, filed on October 18, 1996)
14
<PAGE> 15
*10.7 Term Lease Master Agreement between IBM Credit Corporation and the
Registrant, dated as of November 26, 1991. (filed as Exhibit 10.7 to the
Company's Registration Statement on Form S-1, Registration No.
333-10541, filed on October 18, 1996)
*10.8 Master Lease Agreement between Bankers Leasing Association, Inc. and
the Registrant, dated as of May 7, 1996. (filed as Exhibit 10.8 to
the Company's Registration Statement on Form S-1, Registration No.
333-10541, filed on October 18, 1996)
*10.9 Amended and Restated Credit Agreement, dated as of April 8, 1996 among
the Registrant, the lender parties thereto and Brown Brothers Harriman &
Co. (filed as Exhibit 10.11 to the Company's Registration Statement on
Form S-1, Registration No. 333-10541, filed on October 18, 1996)
*10.10 Warrant Agreement dated as of September 9, 1994, between the Registrant
and Brown Brothers Harriman & Co. (filed as Exhibit 10.12 to the
Company's Registration Statement on Form S-1, Registration No.
333-10541, filed on October 18, 1996)
*10.11 Form of Warrant for the Purchase of Class A Common Stock, dated March
30, 1994. (filed as Exhibit 10.13 to the Company's Registration
Statement on Form S-1, Registration No. 333-10541, filed on October
18, 1996)
*10.12 Form of Stock Subscription Warrant, dated as of July 31, 1995. (filed
as Exhibit 10.14 to the Company's Registration Statement on Form S-1,
Registration No. 333-10541, filed on October 18, 1996)
*10.13 Form of Stock Subscription Warrant with Voting Rights, dated August
3, 1995(filed as Exhibit 10.15 to the Company's Registration
Statement on Form S-1, Registration No. 333-10541, filed on October
18, 1996)
*10.14 Form of Stock Subscription Warrant, dated August 15, 1995. (filed as
Exhibit 10.16 to the Company's Registration Statement on Form S-1,
Registration No. 333-10541, filed on October 18, 1996)
*10.15 Consulting Agreement, dated as of January 1, 1996, by and between the
Registrant, Giga Information Group, Inc. and Neill Brownstein. (filed
as Exhibit 10.19 to the Company's Registration Statement on Form S-1,
Registration No. 333-10541, filed on October 18, 1996)
*10.16 Agreement dated as of October 7, 1994 by and between Sears,
Roebuck and Co. and the Registrant. (filed as Exhibit 10.20 to the
Company's Registration Statement on Form S-1, Registration No.
333-10541, filed on October 18, 1996)
15
<PAGE> 16
*10.17 License Agreement, dated August 1, 1990, by and between the Registrant
and Sears Roebuck and Co. (filed as Exhibit 10.21 to the Company's
Registration Statement on Form S-1, Registration No. 333-10541, filed
on October 18, 1996)
*10.18 Lease Agreement between Stamford Towers Limited Partnership and the
Registrant, dated January 15, 1996. (filed as Exhibit 10.22 to the
Company's Registration Statement on Form S-1, Registration No.
333-10541, filed on October 18, 1996)
*10.19 Business Property Lease between V and R Joint Venture and the
Registrant, dated October 4, 1995. (filed as Exhibit 10.23 to the
Company's Registration Statement on Form S-1, Registration No.
333-10541, filed on October 18, 1996)
*10.20 Arena Tower II Lease Agreement by and between Arena Tower II
Corporation and the Registrant, dated February 12, 1996, as amended.
(filed as Exhibit 10.24 to the Company's Registration Statement on
Form S-1, Registration No. 333-10541, filed on October 18, 1996)
10.21 Amendment No. 1 to Amended and Restated Credit Agreement, dated May 8,
1997 among the Registrant, the lender parties thereto and Brown
Brothers Harriman & Co.
10.23 Lease Agreement between Stamford Towers Limited Partnership and the
Registrant, dated May 20, 1997.
10.24 Second Amendment to Lease Agreement between Arena Tower II Corporation
and Registrant dated January 24, 1997.
10.25 Third Amendment to Lease Agreement between Arena Tower II Corporation
and Registrant dated July 23, 1997.
10.26 Sublease Agreement between Brenmar Marketing Company, Inc. and
Registrant dated June 23, 1997.
11 Statement re computation of per share earnings.
21 Subsidiaries of the Registrant.
23 Consent of Price Waterhouse LLP.
27 Financial Data Schedule.
- ---------------------------------------------------
*Previously filed.
16
<PAGE> 17
Report of Independent Accountants on
Financial Statement Schedule
To the Board of Directors and Shareholders of
MemberWorks Incorporated
Our audits of the consolidated financial statements referred to in our report
dated July 29, 1997 appearing in the 1997 Annual Report to the Shareholders of
MemberWorks Incorporated (which report and consolidated financial statements are
attached as Appendix B to this Annual Report on Form 10-K) also included the
audit of the Financial Statement Schedule listed in Item 14(a) of this Form
10-K. In our opinion, this Financial Statement Schedule presents fairly, in all
material respects, the information set fourth therein when read in conjunction
with the related consolidated financial statements.
Price Waterhouse LLP
New York, New York
July 29, 1997
MEMBERWORKS INCORPORATED
Schedule II - Valuation and Qualifying Accounts
<TABLE>
<CAPTION>
Column A Column B Column C Column D Column E
- ----------------------------------- ----------------- ---------------------------------------- ------------------- ----------------
Additions
----------------------------------------
Balance at Charged to Charged to
Beginning Costs and Other Accounts Deductions Balance at
Description of Period Expenses --Describe --Describe End Of Period
- ----------------------------------- ----------------- ------------------- -------------------- ------------------- ----------------
<S> <C> <C> <C> <C> <C>
YEAR ENDED JUNE 30, 1997
Allowance for cancellations ...... $ 10,117,000 $ 77,853,000(A) $ 76,569,000(B) $11,401,000
Valuation allowance for deferred
tax assets .................... 11,599,000 $ 1,378,000 12,977,000
YEAR ENDED JUNE 30, 1996
Allowance for cancellations ...... 6,765,000 61,264,000(A) 57,912,000(B) 10,117,000
Valuation allowance for deferred
tax assets .................... 9,700,000 1,899,000 11,599,000
YEAR ENDED JUNE 30, 1995
Allowance for cancellations ...... 5,101,000 46,667,000(A) 45,003,000(B) 6,765,000
Valuation allowance for deferred
tax assets .................... 6,003,000 3,697,000 9,700,000
</TABLE>
- -------------------------------------------
(A) Charged to balance sheet account "Deferred membership fees"
(B) Charges for refunds upon membership cancellations.
17
<PAGE> 18
APPENDIX A
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
MEMBERWORKS INCORPORATED
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
OVERVIEW
MemberWorks addresses the needs of organizations seeking to leverage the
expertise of an outside provider in offering membership service programs.
Membership service programs offer selected products and services from a variety
of vendors intended to enhance the existing relationships between businesses and
consumers. The Company derives its revenues principally from annually renewable
membership fees. The Company receives full payment of annual fees at or near the
beginning of the membership period, but recognizes revenue ratably over the
membership period. Similarly, the costs associated with soliciting each new
member, as well as the cost of royalties, printing and mailing of membership
materials are amortized ratably over the same period. Profitability and cash
flow generated from renewal memberships exceed that of new memberships due to
the absence of solicitation costs associated with new member procurement.
FISCAL 1997 COMPARED TO FISCAL 1996
Revenues
Revenues increased 39% to $79.2 million in 1997 from $57.0 million in 1996 due
to an increase in the Company's membership base and an increase in the weighted
average program fee. The Company's membership base increased to 2.0 million
members at June 30, 1997 from 1.5 million members at June 30, 1996. The increase
in the Company's membership base was due to an increase in the members enrolled
in existing programs and the roll-out of new programs introduced in 1996 and
1997. The increase in the weighted average program fee was due to an increase in
the percentage of members enrolled in programs with higher fees. Revenues from
renewals increased to $33.4 million in 1997 from $23.3 million in 1996. As a
percentage of individual membership revenues, these amounts represented 43% in
1997 and 41% in 1996.
Operating Expenses
Operating expenses consist of costs incurred in servicing the Company's
membership base, including personnel, telephone and computer processing costs,
as well as expenses associated with the production and distribution of
membership information kits. Operating expenses increased 44% to $16.8 million
in 1997 from $11.6 million in 1996. As a percentage of revenues, operating
expenses increased to 21.2% in 1997 from 20.4% in 1996. These increases were
primarily due to the Company opening a new membership service facility in
Houston, Texas which commenced operations during the June 1996 quarter as well
as increased operating costs necessary to support the growing membership base.
Marketing Expenses
Marketing expenses consist of fees to telemarketers to solicit potential
members, royalties to clients, direct mail costs and other solicitation
expenses. Marketing expenses increased 33% to $50.9 million in 1997 from $38.4
million in 1996. The increase was due primarily to increased solicitation costs
and increased royalty expense associated with the larger membership base. As a
percentage of revenues, marketing expenses decreased to 64.3% in 1997 from 67.4%
in 1996. The decrease was due to the effect of increased retention and an
increase in the weighted average program fee. In addition to marketing expenses,
the Company also monitors the spending for membership solicitation and other
deferred costs, which is amortized ratably over the membership period. These
costs increased 31% to $62.9 million in 1997 from $48.2 million in 1996
primarily due to increased marketing efforts incurred to expand the membership
base. The Company expects these costs will continue to increase in future
periods in order to continue the expansion of the Company's membership base.
General and Administrative Expenses
General and administrative expenses consist of personnel and facilities expenses
associated with the Company's executive, sales, marketing, finance, product and
account management functions. General and administrative expenses increased 37%
to $16.3 million in 1997 from $11.9 million in 1996. The increase was
attributable to the costs incurred for additional personnel in all areas and
related facilities costs. The additional personnel were necessary to support the
Company's growth and expansion. As a percentage of revenues, general and
administrative expenses decreased to 20.6% in 1997 from 20.9% in 1996.
Other (Income) Expense, Net
Other (income) expense, net is primarily composed of interest income from cash
and cash equivalents, partially offset by financing charges relating to notes
payable, equipment leases and other debt. Other income, net of $930,000 was
reported in 1997 compared to other expense, net of $310,000 reported in 1996.
The increase in other income, net was primarily due to the interest earned on
cash and cash equivalents resulting from the proceeds of the initial public
offering completed on October 23, 1996. The Company invests in short-term,
investment-grade, interest bearing securities, and the amount of interest income
fluctuates based upon the amount of funds available for investment and
prevailing interest rates.
1
<PAGE> 19
MEMBERWORKS INCORPORATED
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
Provision for Income Taxes
The Company was not required to record a provision for income taxes for the
years ended June 30, 1997 and 1996 due to its net operating losses. As of June
30, 1997, the Company had accumulated federal net operating loss carry forwards
of $32.0 million.
FISCAL 1996 COMPARED TO FISCAL 1995
Revenues
Revenues increased 37% to $57.0 million in 1996 from $41.5 million in 1995 due
to an increase in the Company's membership base and an increase in the weighted
average program fee. The Company's membership base increased to 1.5 million
members at June 30, 1996 from 1.1 million members at June 30, 1995. The increase
in the Company's membership base was due to an increase in the members enrolled
in existing programs and the introduction in 1996 of three new programs. The
increase in the weighted average program fee was due to an increase in the
percentage of members enrolled in programs with higher fees and an increase in
the initial and renewal fees for certain programs. Revenues from renewals
increased to $23.3 million in 1996 from $15.0 million in 1995. As a percentage
of individual membership revenues, these amounts represented 41% in 1996 and 37%
in 1995.
Operating Expenses
Operating expenses increased 20% to $11.6 million in 1996 from $9.7 million in
1995. The increase was due principally to additional costs incurred to support
the growth in the membership base, partially offset by the absence of costs
associated with the Company's discount coupon business, which was discontinued
in 1995. As a percentage of revenues, operating expenses decreased to 20.4% in
1996 from 23.4% in 1995. Excluding expenses associated with the discontinued
discount coupon business, operating expenses as a percentage of revenues in 1995
would have been 20.7%. The decrease as a percentage of revenues primarily
resulted from increased efficiencies in the Company's membership service
operations.
Marketing Expenses
Marketing expenses increased 17% to $38.4 million in 1996 from $32.8 million in
1995. The increase was due primarily to increased solicitation costs and
increased royalty expense associated with the larger membership base. As a
percentage of revenues, marketing expenses decreased to 67.4% in 1996 from 78.9%
in 1995. The decrease was due to lower per member telemarketing costs, as well
as the favorable effect of an increase in the weighted average program fee and
an increase in renewal revenues as a percentage of total revenues. Membership
solicitation and other deferred costs, which are amortized ratably over the
membership period, increased 20% to $48.2 million in 1996 from $40.2 million in
1995 primarily due to increased marketing efforts.
General and Administrative Expenses
General and administrative expenses increased 34% to $11.9 million in 1996 from
$8.9 million in 1995. The increase was the result of hiring additional personnel
at all levels and the related increase in facilities costs, partially offset by
the absence of costs associated with the Company's discount coupon business,
which was discontinued in 1995. As a percentage of revenues, general and
administrative expenses decreased to 20.9% in 1996 from 21.4% in 1995. Excluding
general and administrative expenses associated with the discontinued discount
coupon business, general and administrative expenses increased as a percentage
of revenues to 20.9% in 1996 from 18.7% in 1995. The increase as a percentage of
revenues was primarily a result of hiring additional personnel in the second
half of fiscal 1996 and a related increase in facilities costs.
Other (Income) Expense, Net
Other expense, net decreased to $310,000 in 1996 from $893,000 in 1995 as the
result of lower borrowings by the Company in 1996.
Provision for Income Taxes
The Company was not required to record a provision for income taxes for the
years ended June 30, 1996 and 1995 due to its net operating losses.
LIQUIDITY AND CAPITAL RESOURCES
Historically, the Company funded operations primarily through private sales of
securities. More recently, the Company sold 2,400,000 shares of its Common Stock
in an initial public offering on October 18, 1996. Net proceeds of the offering,
after deducting underwriting discounts, commissions and offering expenses,
approximated $36.4 million. Approximately $2.5 million of the net proceeds were
utilized to redeem all outstanding shares of Series E and Series F Preferred
Stock on October 23, 1996. The Company expects to use the remainder of the net
proceeds of the initial public offering for working capital and other general
corporate purposes, including possible acquisitions.
Net cash provided by operating activities was $7.8 million and $1,000 for the
years ended June 30, 1997 and 1996, respectively, and net cash used by operating
activities was $3.5 million for the year ended June 30, 1995. This improvement
in operating cash flow is due to several factors including improved operating
results, improved membership solicitation cost ratios and improved control over
receivables and payables.
2
<PAGE> 20
MemberWorks Incorporated
Management's Discussion and Analysis of Financial Condition and Results of
Operations
The Company's capital expenditures for 1997, 1996 and 1995 were $3.8 million,
$2.3 million and $519,000, respectively. The increased expenditures in 1997
compared to 1996 were primarily related to an upgrade of the Company's mainframe
computer system and the Company's new membership services facility opened in the
June 1996 quarter. The Company expects to have increased capital expenditures in
fiscal 1998 to increase capacity of its computer systems and increase capacity
of its services and office facilities.
The Company's net cash provided by financing activities was $32.4 million in
1997 primarily due to the initial public offering of the Company's Common Stock.
During the third quarter of fiscal 1997, the Company's Board of Directors
authorized a plan to repurchase up to 150,000 shares of the Company's Common
Stock. The Company bought back 47,000 shares for $715,000 under this plan during
the fourth quarter of 1997. The repurchased shares will be used to provide
Common Stock required for exercises of options granted by the Company under the
1996 Stock Option Plan.
Working capital at June 30, 1997 was $7.7 million compared to negative working
capital of $19.0 million at June 30, 1996. This improvement is primarily due to
the receipt of net proceeds from the initial public offering. As of June 30,
1997, the Company had cash and cash equivalents of $40.8 million. In addition,
the Company has a $7.0 million bank credit facility which bears interest at the
higher of the base commercial lending rate for the bank or the Federal Funds
Rate plus 0.5% per annum. Borrowings as of and during the year ended June 30,
1997 were not significant. Because of ongoing costs in connection with
soliciting new members, the Company expects to continue to utilize net cash
generated from operating activities, if any, to increase the Company's
membership base. The Company believes its existing cash balances, bank credit
facility and funds generated from operations will be sufficient to meet its
funding requirements for at least the next twelve months.
CERTAIN FACTORS AFFECTING FUTURE RESULTS
The preceding Management's Discussion and Analysis of Financial Condition and
Results of Operations contains forward-looking statements that involve risks and
uncertainties, including the statements in Liquidity and Capital Resources
regarding the adequacy of funds to meet future funding requirements. The
Company's actual results may differ significantly from the results discussed in
the forward-looking statements. A number of uncertainties exist that could
affect the Company's future operating results, including, without limitation,
the Company's history of losses, the Company's ability to retain existing
clients and attract new clients, the Company's dependence on membership
renewals, intense competition, the Company's continuing ability to develop new
programs which generate consumer interest, and general economic factors. The
Company has incurred significant operating losses since its inception. Although
the Company has experienced revenue growth in recent periods, such growth rates
may not be sustainable and are not indicative of future operating results. There
can be no assurance that the Company will achieve or maintain profitability in
the future.
3
<PAGE> 21
APPENDIX B
FINANCIAL STATEMENTS
MemberWorks Incorporated
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
June 30,
(In thousands, except per share data) 1997 1996
- ------------------------------------------------------------------------------------------------------------------------
ASSETS
Current assets:
<S> <C> <C>
Cash and cash equivalents $ 40,758 $ 4,312
Accounts receivable 3,193 6,439
Prepaid membership materials 1,678 1,065
Prepaid expenses 284 204
Membership solicitation and other deferred costs 31,773 25,686
- ------------------------------------------------------------------------------------------------------------------------
Total current assets 77,686 37,706
Fixed assets, net 6,377 3,261
Other assets 360 960
- ------------------------------------------------------------------------------------------------------------------------
$ 84,423 $ 41,927
- ------------------------------------------------------------------------------------------------------------------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Current maturities of long-term obligations $ 724 $ 991
Accounts payable 13,854 10,433
Accrued liabilities 13,904 14,631
Deferred membership fees 41,473 30,628
- ------------------------------------------------------------------------------------------------------------------------
Total current liabilities 69,955 56,683
Long-term obligations 438 1,089
- ------------------------------------------------------------------------------------------------------------------------
Total liabilities 70,393 57,772
Redeemable preferred stock -- 20,487
- ------------------------------------------------------------------------------------------------------------------------
Total liabilities and redeemable preferred stock 70,393 78,259
- ------------------------------------------------------------------------------------------------------------------------
Commitments and contingencies (Note 4) -- --
Shareholders' equity:
Common stock, $0.01 par value --
40,000 shares authorized (27,630 shares at June 30, 1996);
14,942 shares issued (5,857 shares at June 30, 1996) 149 59
Capital in excess of par value 59,472 3,602
Deferred compensation (1,445) (1,400)
Accumulated deficit (43,158) (38,320)
Treasury stock, 221 shares at cost (174 shares at June 30,1996) (988) (273)
- ------------------------------------------------------------------------------------------------------------------------
Total shareholders' equity (deficit) 14,030 (36,332)
- ------------------------------------------------------------------------------------------------------------------------
$ 84,423 $ 41,927
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
1
<PAGE> 22
MemberWorks Incorporated
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Year ended June 30,
(In thousands, except per share data) 1997 1996 1995
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Revenues from membership fees $ 79,174 $ 57,012 $ 41,547
Expenses:
Operating 16,762 11,623 9,702
Marketing 50,904 38,410 32,799
General and administrative 16,296 11,916 8,885
Other (income) expense, net principally interest (930) 310 893
- ------------------------------------------------------------------------------------------------------------------------
Total expenses 83,032 62,259 52,279
- ------------------------------------------------------------------------------------------------------------------------
Loss before income taxes (3,858) (5,247) (10,732)
Provision for income taxes -- -- --
- ------------------------------------------------------------------------------------------------------------------------
Net loss $ (3,858) $ (5,247) $(10,732)
- ------------------------------------------------------------------------------------------------------------------------
Net loss per share $ (0.35) $ (0.42)
- ------------------------------------------------------------------------------------------------------------------------
Weighted average common and common equivalent shares outstanding 13,901 12,741
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
2
<PAGE> 23
MemberWorks Incorporated
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
Capital in
Common Stock excess of Deferred Accumulated Treasury
(In thousands) Shares Amount par value compensation deficit stock Total
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance-- June 30, 1994 5,781 $ 58 $ 1,538 $ -- $ (20,223) $ -- $ (18,627)
For the year ended June 30, 1995:
Issuance of common stock 76 1 64 65
Issuance of warrants -- --
Acquisition of treasury stock 84 (273) (189)
Preferred stock dividends and accretion (884) (884)
Net loss (10,732) (10,732)
- -------------------------------------------------------------------------------------------------------------------------
Balance-- June 30, 1995 5,857 59 1,686 -- (31,839) (273) (30,367)
For the year ended June 30, 1996:
Issuance of common stock -- -- 1 1
Issuance of warrants 515 515
Preferred stock dividends and accretion (1,234) (1,234)
Deferred compensation 1,400 (1,400) --
Net loss (5,247) (5,247)
- -------------------------------------------------------------------------------------------------------------------------
Balance-- June 30, 1996 5,857 59 3,602 (1,400) (38,320) (273) (36,332)
For the year ended June 30,1997:
Issuance of common stock 2,621 26 36,547 36,573
Acquisition of treasury stock (715) (715)
Preferred stock dividends and accretion (980) (980)
Conversion of preferred stock
into common stock 6,464 64 18,854 18,918
Deferred compensation 469 (45) 424
Net loss (3,858) (3,858)
- -------------------------------------------------------------------------------------------------------------------------
Balance-- June 30, 1997 14,942 $149 $59,472 $ (1,445) $ (43,158) $ (988) $ 14,030
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
3
<PAGE> 24
MemberWorks Incorporated
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Year ended June 30,
(In thousands) 1997 1996 1995
- -------------------------------------------------------------------------------------------------------------------------
OPERATING ACTIVITIES
<S> <C> <C> <C>
Net loss $ (3,858) $ (5,247) $ (10,732)
Adjustment to reconcile net loss to net cash
provided by (used in) operating activities:
Membership solicitation and other deferred costs (62,929) (48,201) (40,178)
Amortization of membership solicitation and other deferred costs 56,842 43,097 36,092
Deferred membership fees 10,845 7,036 6,569
Depreciation and amortization 1,295 746 536
Other 424 469 711
Change in assets and liabilities affecting operating cash flows:
Accounts receivable 3,246 (5,074) 659
Prepaid membership materials (613) (733) 30
Prepaid expenses (80) (114) 20
Other assets (31) (252) (40)
Accounts payable 3,421 2,729 476
Accrued liabilities (727) 5,545 2,381
- -------------------------------------------------------------------------------------------------------------------------
Net cash provided by (used in) operating activities 7,835 1 (3,476)
- -------------------------------------------------------------------------------------------------------------------------
INVESTING ACTIVITIES
Acquisition of fixed assets (3,760) (2,264) (519)
Investment in and advances to joint venture -- (48) (98)
- -------------------------------------------------------------------------------------------------------------------------
Net cash used in investing activities (3,760) (2,312) (617)
- -------------------------------------------------------------------------------------------------------------------------
FINANCING ACTIVITIES
Net proceeds from issuance of stock and warrants 36,573 12,887 4,012
Redemption of preferred stock (2,549) (4,000) --
Preferred stock dividends -- (402) --
Payments of long term obligations (918) (7,395) (3,749)
Purchase of treasury stock (715) (175) --
Debt issuance costs (20) (117) (273)
Proceeds from issuance of notes payable -- 502 6,860
- -------------------------------------------------------------------------------------------------------------------------
Net cash provided by financing activities 32,371 1,300 6,850
- -------------------------------------------------------------------------------------------------------------------------
Net increase (decrease) in cash and cash equivalents 36,446 (1,011) 2,757
Cash and cash equivalents at beginning of year 4,312 5,323 2,566
- -------------------------------------------------------------------------------------------------------------------------
Cash and cash equivalents at end of year $ 40,758 $ 4,312 $ 5,323
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
4
<PAGE> 25
MemberWorks Incorporated
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 1: NATURE OF BUSINESS
MemberWorks Incorporated (the "Company") is a leading provider of innovative
membership service programs. The Company addresses the needs of organizations
seeking to leverage the expertise of an outside provider in offering membership
service programs. Membership service programs offer selected products and
services from a variety of vendors intended to enhance the existing
relationships between businesses and consumers.
NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of presentation-consolidation
The consolidated financial statements include the Company and its wholly owned
subsidiaries. All significant intercompany accounts and transactions have been
eliminated.
Use of estimates
The preparation of these consolidated financial statements in conformity with
generally accepted accounting principles requires management of the Company to
make estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from those
estimates.
Fair value of financial instruments and concentration of credit risk
All current assets and liabilities are carried at cost, which approximates fair
value because of the short-term maturity of those instruments. The recorded
amounts of the Company's long-term obligations also approximate fair value.
Financial instruments which potentially subject the Company to concentration of
credit risk consist primarily of accounts receivable from financial and other
card holder based institutions (clients of the Company) whose card holders
constitute the Company's membership base. These entities include major banks,
financial institutions, large oil companies and retailers located in the United
States.
Fixed assets
Fixed assets and capital leases are carried at cost, less accumulated
depreciation and amortization. Depreciation and amortization are calculated
using the straight-line method over the lesser of the estimated productive lives
of the assets or the terms of the related leases, and range from three to ten
years. Maintenance and repair expenditures are charged to operations as
incurred.
Revenue recognition
Membership fees are billed through clients of the Company to credit card
holders. An allowance for cancellations is established based on the Company's
most recent actual cancellation experience, updated regularly. Deferred
membership fees are recorded, net of estimated cancellations, when the trial
period has elapsed, and are amortized as revenues from membership fees on a
straight-line basis, over the remainder of the membership period, generally
twelve months. Membership cancellations are charged to the allowance for
cancellations on a current basis. During an initial annual membership term or
renewal term, a member may cancel his or her membership in the program,
generally for a complete refund of the membership fee for that period. Accrued
liabilities set forth in the accompanying consolidated balance sheets as of June
30, 1997 and 1996 include an allowance for membership cancellations of
$11,401,000, and $10,117,000 respectively.
Accounts receivable includes $1,220,000 and $3,624,000 of unbilled receivables
as of June 30, 1997 and 1996, which were billed and collected subsequent to the
balance sheet date, and arise in certain instances when the Company elects to
bill subsequent to, rather than upon, acceptance of membership.
Membership service programs sponsored by two clients of the Company accounted
for 30.7% and 13.8%, respectively, of revenues from membership fees for the
fiscal year ended June 30, 1997, 35.2% and 10.5%, respectively, for the fiscal
year ended June 30, 1996 and 41.0% and 9.0%, respectively, for the fiscal year
ended June 30, 1995.
Membership solicitation and other deferred costs
Membership solicitation costs include telemarketing, printing, postage and
mailing costs related directly to membership solicitation (i.e. direct response
advertising costs). In accordance with Statement of Position 93-7, "Reporting on
Advertising Costs", direct response advertising costs are deferred and charged
to operations as revenues from membership fees are recognized. Other deferred
costs consist of royalties paid to clients, transaction processing fees, and
members' kit costs, which relate to the same revenue streams as the direct
marketing costs and are also charged to income over the membership period.
Membership solicitation costs incurred to obtain a new member generally are less
than the initial membership fee. However, if membership solicitation costs were
to exceed membership fees, an adjustment would be made to the extent of any
impairment.
5
<PAGE> 26
Memberworks Incorporated
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
Earnings per share
Earnings per share is determined by dividing the net loss, after preferred stock
dividends and accretion, by the weighted average number of common shares
outstanding during the period plus, when their effect is dilutive, common stock
equivalents.
The 1996 per share information represents pro forma earnings per share amounts.
Pro forma earnings per share is determined by dividing net loss, after adding
back preferred stock dividends paid when applicable, by the weighted average
number of common and common equivalent shares outstanding during the period.
Common stock equivalents include stock options, warrants and preferred stock
which was converted into Common Stock upon the closing of the initial public
offering of the Company's Common Stock (see Note 7). The pro forma weighted
average number of shares has been adjusted to reflect as outstanding all Common
Stock and common stock equivalents issued during the twelve month period
preceding the initial public offering of the Company's Common Stock using the
treasury stock method, as well as the number of shares which would be necessary
in order to redeem the Series E and F Preferred Stock.
Supplementary loss per share for the year ended June 30, 1997 is $0.32. The net
loss used in the calculation of supplementary loss per share is $4,395,000 for
the year ended June 30, 1997. The net loss excludes accretion related to the
Series A, B, C, D and H Preferred Stock and preferred stock dividends on Series
E and F Preferred Stock as the conversion and redemption of these securities is
assumed to have occurred at the beginning of the period. The weighted average
shares used in the calculation of supplementary earnings per share includes the
number of shares of common stock whose proceeds were to be used to retire the
Series E and F Preferred Stock as outstanding for the entire period.
Cash and cash equivalents
The Company considers highly liquid investment instruments with terms of three
months or less at the time of acquisition to be cash equivalents.
Income taxes
The Company accounts for income taxes under the provisions of Statement of
Financial Accounting Standards No. 109 "Accounting for Income Taxes" (FAS 109).
Deferred tax assets and liabilities are recognized for future tax consequences
attributable to differences between the financial statement carrying amounts of
existing assets and liabilities and their respective tax bases.
Impairment of long-lived assets
The Company accounts for the impairment and disposition of long-lived assets in
accordance with SFAS No. 121, "Accounting for the Impairment of Long-Lived
Assets and for Long-Lived Assets to Be Disposed Of" (FAS 121). In accordance
with FAS 121, long-lived assets to be held are reviewed for events or changes in
circumstances which indicate that their carrying value may not be recoverable.
As of June 30, 1997, no impairment has been indicated.
Stock-based compensation
The Company accounts for stock option grants in accordance with Accounting
Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees" (APB
25). In fiscal 1997, the Company implemented the disclosure-only provisions of
SFAS No. 123, "Accounting for Stock-Based Compensation" (FAS 123). See Note 8
for the required disclosures.
Reclassification
Certain reclassifications have been made to prior period financial statements to
conform to the presentation for the financial statements for the year ended June
30, 1997.
NOTE 3: FIXED ASSETS
Fixed assets are comprised of the following (in thousands):
<TABLE>
<CAPTION>
1997 1996
- --------------------------------------------------------------------------------
<S> <C> <C>
Computer and office equipment $ 7,385 $ 3,955
Furniture and fixtures 875 709
Leasehold improvements 816 113
- --------------------------------------------------------------------------------
9,076 4,777
Accumulated depreciation and amortization (2,699) (1,516)
- --------------------------------------------------------------------------------
$ 6,377 $ 3,261
================================================================================
</TABLE>
6
<PAGE> 27
Memberworks Incorporated
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 4: LONG-TERM OBLIGATIONS
Notes payable
Notes payable are summarized as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996
- --------------------------------------------------------------------------------
<S> <C> <C>
Bank Credit Agreement $ 10 $ 10
Stockholder notes payable -- 267
Equipment term loans 633 1,031
- --------------------------------------------------------------------------------
643 1,308
Less current maturities 446 675
- --------------------------------------------------------------------------------
Long-term notes payable $ 197 $ 633
- --------------------------------------------------------------------------------
</TABLE>
The Company has a Bank Credit Agreement which allows for borrowings up to
$7,000,000. Borrowings under the facility accrue interest at the higher of the
base commercial lending rate for the bank or the Federal Funds Rate plus 0.5%
per annum. A commitment fee is charged based on the total facility at the rate
of 0.5% per annum. The credit agreement is secured by all of the Company's
assets, including the stock of its subsidiaries.
At June 30, 1996 the Company had 12.0% notes totaling $267,000 payable to two
common stockholders. The Company paid the outstanding balance of these notes
plus accrued interest with a portion of the proceeds from the initial public
offering.
The Company has several equipment term loans extending to September 2001,
secured by certain computer equipment. Interest is at rates of 7.5% to 11.6%,
and principal is repayable monthly. The aggregate amount of payments related to
the equipment term loans is $476,000 in 1998, $192,000 in 1999, $6,000 in 2000
and $2,000 in 2001.
Other (income) expense in 1997, 1996 and 1995, as shown in the statement of
operations, includes interest expense of $303,000, $615,000 and $1,018,000
respectively.
Commitments and contingencies
The Company operates in leased facilities. Management expects that leases
currently in effect will be renewed or replaced by other leases of a similar
nature and term. Rent expense under operating leases was $1,213,000, $733,000,
and $491,000 for the fiscal years ended June 30, 1997, 1996 and 1995,
respectively.
During 1996 and 1995, the Company entered into capital leases for certain
computer equipment totaling $406,000, and $68,000 respectively, of capitalized
cost. Lease amortization for the years ended June 30, 1997, 1996 and 1995 was
$63,000, $194,000 and $163,000, respectively, and is included in depreciation
and amortization expense.
The future minimum lease payments under capital leases (including present value
of net minimum lease payments) and operating leases as of June 30, 1997 are as
follows (in thousands):
<TABLE>
<CAPTION>
Capital Operating
Fiscal Year leases leases
- -------------------------------------------------------------------------------
<S> <C> <C>
1998 $316 $ 1,349
1999 197 1,290
2000 56 1,274
2001 9 1,068
2002 -- 1,055
Thereafter -- 4,073
- -------------------------------------------------------------------------------
Total minimum lease payments 578 $10,109
- -------------------------------------------------------------------------------
Less-Amount representing interest 59
===============================================================================
Present value of net minimum lease payments
including current maturities of $278 with
interest rates ranging from 6.9% to 10.4% $519
================================================================================
</TABLE>
In September 1996, the Company and certain of its executive officers entered
into an agreement settling litigation involving a former officer of the Company.
The fulfillment of the settlement terms did not have a material impact on the
Company's business, financial condition and results of operations.
NOTE 5: INCOME TAXES
There was no current or deferred provision for income taxes for the years ended
June 30, 1997, 1996 and 1995. No current provision was required because tax
losses were incurred in those years. Deferred tax assets and liabilities result
from differences in the basis of assets and liabilities for tax and financial
statement purposes. The tax effects of the basis differences and net operating
loss carry forwards, and the valuation allowance established in accordance with
FAS 109, are summarized below as of June 30, 1997 and 1996 (in thousands):
7
<PAGE> 28
MEMBERWORKS INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
1997 1996
- --------------------------------------------------------------------------------
<S> <C> <C>
Benefit of net operating loss carry forward $ 12,632 $ 6,963
Deferred membership fees 8,542 10,602
Allowance for membership cancellations 3,687 3,361
Other deferred tax assets 428 562
Membership solicitation and other deferred costs (12,312) (9,889)
- --------------------------------------------------------------------------------
Total deferred tax assets 12,977 11,599
Less: Valuation allowance (12,977) (11,599)
- --------------------------------------------------------------------------------
Net deferred tax asset $ -- $ --
- --------------------------------------------------------------------------------
</TABLE>
The valuation allowance for deferred tax assets as of July 1, 1995 was
$9,700,000. The net change in the valuation allowance for the years ended June
30, 1997 and 1996 were increases of $1,378,000, and $1,899,000 respectively. At
June 30, 1997, the Company had federal net operating loss carry forwards of
$32,006,000 expiring at various dates from June 30, 2005 to June 30, 2012. The
Company's ability to use these losses to offset future taxable income would be
subject to limitations under the Internal Revenue Code if certain changes in the
Company's ownership occur. The Company also has state net operating loss carry
forwards expiring at various dates through June 30, 2002 available to reduce
future state taxable income.
NOTE 6: REDEEMABLE PREFERRED STOCK
In connection with the Company's initial public offering of its Common Stock
(see Note 7), Series A, B, C, D, and H Preferred Stock were converted into
Common Stock. The difference between the recorded fair values of the Series A,
B, C, D, and H Preferred Stock and their redemption values was being accreted
using the interest method and resulted in a charge to retained earnings of
$364,000 during fiscal 1997. Approximately $2,549,000 of the proceeds from the
initial public offering were used to redeem all outstanding shares of Series E
and F Preferred Stock. The Series E and F Preferred Stock were recorded net of
discounts of $522,000 and $491,000, respectively, and were being accreted using
the interest method. The unamortized portion of the discounts were charged to
retained earnings upon redemption and amounted to $509,000. As a result of these
transactions there is no redeemable Preferred Stock outstanding as of June 30,
1997.
During fiscal 1996 the Company issued 317,150 shares of Series H Preferred Stock
for a total of $13,000,000. In addition, warrants to acquire 72,000 shares of
Common Stock at $0.0014 per share were issued in conjunction with the issuance
of Series H Preferred Stock. As a result, the recorded value of the Series H
Preferred Stock was $12,800,000, reflecting a $200,000 discount attributable to
the warrants, which was being accreted through the exercise date using the
interest method. Additionally, the Company paid $114,000 of issuance costs in
connection with this offering, which was recorded as a reduction in net
proceeds, and was being accreted to the redemption date.
On September 28, 1994, the Company issued 40,000 shares of Series G Preferred
Stock with attached warrants to acquire 288,000 shares of Common Stock for a
total of $4,000,000. On August 3, 1995, the Company redeemed 40,000 shares of
issued and outstanding Series G Preferred Stock and redeemed attached warrants
to acquire 288,000 shares of Common Stock of the Company for $4,000,000, and
also paid the investor a preferred dividend in the amount of $402,000.
Additionally, the Company substituted 113,227 warrants to acquire Common Stock,
exercisable at $0.0014 per share, in exchange for the 288,000 warrants
previously redeemed. As a result the substituted warrants issued were accounted
for at fair value of $315,000 and recorded as a charge to operations as a cost
of redeeming the Preferred Stock.
NOTE 7: SHAREHOLDERS' EQUITY
Initial Public Offering
Effective October 18, 1996, the Company sold 2,400,000 shares of its Common
Stock at $17.00 per share in an initial public offering. Net proceeds of the
offering, after deducting underwriting discounts, commissions and offering
expenses, aggregated $36,401,000. Approximately $2,549,000 of the proceeds of
the offering were used to redeem all outstanding shares of Series E and Series F
Preferred Stock. The remaining $33,852,000 in proceeds were retained for general
corporate purposes, including acquisition of new members, program development,
capital expenditures and working capital. Consummation of the initial public
offering resulted in the automatic conversion of Series A, B, C, D, and H
Preferred Stock into Common Stock.
Common Stock
In August 1996, the Company amended its certificate of incorporation to increase
the authorized number of shares of stock to 41,000,000. A total of 32,000,000
shares were designated as Common Stock, par value $0.01, 8,000,000 shares were
designated as Class A common stock, par value $0.01 and 1,000,000 shares were
designated as Preferred Stock, par value $0.01.
8
<PAGE> 29
MEMBERWORKS INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
In August 1996, the Board of Directors authorized the automatic reclassification
and conversion of Class A common stock into Common Stock upon the closing of the
Company's initial public offering and the elimination of Class A common stock.
In addition, the Board of Directors authorized the automatic reclassification
and conversion of Class B common stock into Common Stock. The consolidated
financial statements have been restated to reflect the above transactions,
including the reclassification and conversion of 5,599,000 shares of Class A
common stock outstanding as of June 30, 1996 into Common Stock and the
reclassification of the 8,000,000 authorized shares designated as Class A common
stock as of June 30, 1996 into Common Stock, for all periods presented.
In September 1996, the Board of Directors approved a 7.2 for 1 stock split of
the Company's Common Stock which became effective on September 25, 1996.
Stock Repurchases
During fiscal 1997, the Board of Directors authorized the Company to purchase up
to 150,000 shares of its Common Stock, as conditions warrant, to be used in
connection with the Company's Common Stock requirements for its 1996 Stock
Option Plan. During fiscal 1997, the Company repurchased 47,000 shares of Common
Stock at a cost of $715,000.
NOTE 8: STOCK OPTIONS AND WARRANTS
Stock Compensation Plans
At June 30, 1997, the Company has five stock-based compensation plans, which are
described below. The Company applies APB Opinion 25 and related Interpretations
in accounting for its plans. Compensation expense of $424,000 and $3,000 has
been recognized during 1997 and 1996, respectively, related to its stock option
plans under APB 25. Had compensation cost for the Company's stock-based
compensation plans been determined based on the fair value at the grant dates
for awards under those plans consistent with the method of FAS No. 123, the
Company's pro forma net loss would have been $4,464,000 and $5,356,000 for 1997
and 1996, respectively, and pro forma net loss per share would have been $0.39
and $0.43 for 1997 and 1996, respectively. The pro forma effect on fiscal 1997
and 1996 net losses and per share amounts is not representative of the pro forma
effect on net income (loss) in future years because it does not take into
consideration pro forma compensation expense related to grants made prior to
July 1, 1995.
Under the stock option plans and the agreement with an executive officer
described below, the fair value of each option grant is estimated on the date of
grant using the Black-Scholes option-pricing model with the following weighted
average assumptions for the years ended June 30, 1997 and 1996: Dividend yield
of 0%, expected volatility of 42%, risk free interest rates of 6.4% for 1997 and
6.7% for 1996 and expected lives of 4.8 years for 1997 and 6.3 years for 1996.
The weighted-average fair value of options granted at market value were $4.34
and $1.32 for the years ended June 30, 1997 and 1996, respectively. The
weighted-average fair value of options granted below market value were $11.90
and $5.67 for the years ended June 30, 1997 and 1996, respectively.
The Company's 1990 Employee Incentive Stock Option Plan ("Amended 1990 Stock
Option Plan") provides for the grant of "incentive stock options" to employees
and officers of the Company and non-qualified stock options to employees,
consultants, directors and officers of the Company. On August 13, 1996 the Board
of Directors voted that no further options may be granted under the Amended 1990
Stock Option Plan effective upon the closing of the initial public offering.
During fiscal 1996, the Board of Directors and stockholders of the Company
approved the adoption of the 1995 Executive Officers' Stock Option Plan and the
1995 Non-Employee Directors' Stock Option Plan under which the Board is
authorized to grant 360,000 and 180,000 options, respectively, to acquire shares
of Common Stock at a price per share equal to or greater than fair market value
at the date of grant. Under the Executive Officers' Stock Option Plan, the Board
can determine the date on which options vest and become exercisable. Options
become exercisable over a four year period under the Non-Employee Directors'
Stock Option Plan.
During fiscal 1997, the Board of Directors approved the Company's 1996 Stock
Option Plan (the "1996 Stock Option Plan"), which became effective upon the
closing of the Company's initial public offering. The 1996 Stock Option Plan
authorizes the issuance of up to 1.8 million shares of Common Stock pursuant to
the grant to employees of incentive stock options and the grant of non-qualified
stock options to employees, consultants, officers or directors of the Company.
Under the 1996 Stock Option Plan the Board can determine the date on which
options can vest and become exercisable as well as the term of the options
granted.
9
<PAGE> 30
MEMBERWORKS INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
Under the stock option plans described above, options generally become
exercisable over a four year period and expire at the earlier of termination of
employment or ten years from date of grant (eight years for grants prior to
December 31, 1995).
The Company had an agreement with an executive officer, whereby the Company was
required to grant options to purchase up to 144,000 shares of Common Stock to
the executive for achievement of certain performance goals. These options have a
stated exercise price of $2.78 per share and vest ratably over a four year
period from date of grant. The executive was granted 43,200 and 14,400 options
to purchase Common Stock in 1997 and 1996, respectively. The Company recognized
compensation expense of $79,000 and $3,000 for the years ended June 30, 1997 and
1996, respectively.
In connection with a grant of options in June 1996 to purchase 360,000 shares of
Common Stock, the Company recognized compensation expense of $345,000 during the
year ended June 30, 1997. Compensation expense is being recognized over the four
year vesting period and is measured based on the excess of the fair market value
of the Company's stock over the grant price of the options.
Information with respect to options to purchase shares issued under the plans is
as follows:
<TABLE>
<CAPTION>
1997 1996 1995
--------------------- ------------------- ------------------
Average Average Average
Exercise Exercise Exercise
(Shares in thousands) Shares Price Shares Price Shares Price
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning of year 1,278 $2.62 652 $1.64 607 $1.43
Granted at market value 486 9.88 300 2.78 220 2.08
Granted below market value 43 2.78 374 4.12 -- --
Exercised (93) 1.50 -- 2.08 (76) 0.84
Forfeited (65) 3.83 (48) 1.95 (99) 1.89
----- ----- ---
Outstanding at end of year 1,649 $4.78 1,278 $2.62 652 $1.64
- -------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
------------------------------------- -------------------------
Number Average Average Number Average
Range of Outstanding Remaining Exercise Exercisable Exercise
Exercise Prices at 6/30/97 Life (Years) Price at 6/30/97 Price
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$0.46 to $1.99 367 3.3 $ 1.51 347 $ 1.49
$2.00 to $3.99 451 6.2 2.59 118 2.47
$4.00 to $7.99 360 9.0 4.17 90 4.17
$8.00 and over 471 9.2 9.90 75 8.00
----- ---
1,649 7.0 $ 4.78 630 $ 2.83
- ---------------------------------------------------------------------------------------------------------
</TABLE>
Options exercisable as of June 30, 1996 and 1995 were 378,000 and 248,000,
respectively.
10
<PAGE> 31
MEMBERWORKS INCORPORATED
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
Employee Stock Purchase Plan
During fiscal 1997, the Company adopted the 1996 Employee Stock Purchase Plan
which provides for the issuance of up to 360,000 shares of Common Stock. The
plan permits eligible employees to purchase Common Stock through payroll
deductions, which may not exceed 10% of an employee's compensation, at a price
equal to the lower of (a) 85% of the closing price of the Common Stock on the
day the purchase period commences, or (b) 85% of the closing price of the Common
Stock on the day the purchase period terminates. Because the first purchase
period under the Employee Stock Purchase Plan ends on October 1, 1997, no shares
were purchased under the Plan during fiscal 1997.
Warrants
During fiscal 1997, warrants to acquire 128,653 shares of Common Stock were
exercised (113,227 at $0.0014 per share and 15,426 at $2.05 per share). As of
June 30, 1997, the Company had outstanding warrants to purchase an aggregate of
255,634 shares of Common Stock with the following per share exercise prices:
56,167 at $3.56; 127,467 at $2.05; and 72,000 at $0.0014. These warrants expire
at various dates between March 1999 and August 2000.
NOTE 9: EMPLOYEE BENEFIT PLAN
Effective April 1, 1996 the Company adopted a 401(k) profit sharing plan.
Employees of the Company are eligible to contribute to the plan once they have
completed one year of service and attained age 18. Employees may contribute up
to 15% of their compensation subject to certain limitations. The Company may
elect to make matching contributions or profit sharing contributions to the
plan. There were no Company contributions made for the years ended June 30, 1997
and 1996.
NOTE 10: STATEMENT OF CASH FLOWS
Included in other adjustments to reconcile net loss to net cash used in
operating activities for fiscal 1995 is a charge to operations of $659,000
related to the Company discontinuing its domestic discount coupon business. The
total operating loss of this business in fiscal 1995, including the $659,000,
was $1,639,000.
Supplemental disclosure of cash flow information and noncash investing and
financing activities (in thousands):
<TABLE>
<CAPTION>
Year ended June 30,
1997 1996 1995
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash Flow Information:
Cash paid during the period for interest $205 $493 $896
Cash paid during the period for income taxes $ 30 $ 45 $ --
Noncash investing and financing activities:
Capital lease obligation related to
acquisition of fixed assets $ -- $406 $ 68
Dividends accumulated on Series E, F and G
preferred stock $ 53 $212 $424
Accretion of discount on Series E, F, G
and H preferred stock $563 $219 $163
Accretion to redemption value on Series A,
B, C, and D preferred stock $364 $648 $297
Issuance of warrants $ -- $200 $ --
- --------------------------------------------------------------------------------
</TABLE>
11
<PAGE> 32
REPORT OF INDEPENDENT ACCOUNTANTS
- --------------------------------------------------------------------------------
To the Board of Directors and Shareholders of
MemberWorks Incorporated
In our opinion, the accompanying consolidated balance sheets and the related
consolidated statements of operations, of shareholders' equity and of cash flows
present fairly, in all material respects, the financial position of MemberWorks
Incorporated and its subsidiaries at June 30, 1997 and 1996, and the results of
their operations and their cash flows for each of the three years in the period
ended June 30, 1997, in conformity with generally accepted accounting
principles. These financial statements are the responsibility of the Company's
management; our responsibility is to express an opinion on these financial
statements based on our audits. We conducted our audits of these statements in
accordance with generally accepted auditing standards which require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and significant estimates
made by management, and evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for the opinion expressed
above.
PRICE WATERHOUSE LLP
Price Waterhouse LLP
New York, New York
July 29, 1997
12
<PAGE> 33
EXHIBIT INDEX
-------------
Exhibit
No. Description
------- -----------
10.21 Amendment No. 1 to Amended and Restated Credit Agreement, dated May 8,
1997 among the Registrant, the lender parties thereto and Brown
Brothers Harriman & Co.
10.23 Lease Agreement between Stamford Towers Limited Partnership and the
Registrant, dated May 20, 1997.
10.24 Second Amendment to Lease Agreement between Arena Tower II Corporation
and Registrant dated January 24, 1997.
10.25 Third Amendment to Lease Agreement between Arena Tower II Corporation
and Registrant dated July 23, 1997.
10.26 Sublease Agreement between Brenmar Marketing Company, Inc. and
Registrant dated June 23, 1997.
11 Statement re computation of per share earnings.
21 Subsidiaries of the Registrant.
23 Consent of Price Waterhouse LLP.
27 Financial Data Schedule.
<PAGE> 1
EXHIBIT 10.21
EXECUTION COPY
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 1 ("Amendment No. 1") is made as of the 8th day of
May, 1997 by and among MEMBERWORKS INCORPORATED (formerly known as CardMember
Publishing Corporation), a Delaware corporation (the "Company"), the lenders
signatory hereto (the "Lenders") and BROWN BROTHERS HARRIMAN & CO., as agent
(in such capacity, the "Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into an Amended and Restated
Credit Agreement dated as of April 8, 1996 (the "Credit Agreement"); and
WHEREAS, the parties desire to amend the Credit Agreement as
hereinafter set forth;
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. DEFINITIONS. Except as otherwise defined herein, capitalized
terms used herein have the meanings provided in the Credit Agreement.
SECTION 2. AMENDMENT. Subject to the satisfaction of the conditions
precedent specified below, but effective as of the date hereof, the Credit
Agreement shall be amended as follows:
(a) All references in the Credit Agreement to "CardMember
Publishing Corporation" shall mean "MemberWorks Incorporated."
(b) Section 1.1 of the Credit Agreement shall be amended as
follows:
(1) The following definition shall be added after the
definition of "Closing Date": "'CMC' shall mean CardMember Marketing
Corporation, a Delaware corporation."
(2) The following definition shall be added after the
definition of "control": "'CPC' shall mean CardMember Publishing Corporation, a
Delaware corporation."
(3) The following definition shall be added after the
definition of "CPC": "'CSC' shall mean CardMember Services Corporation, a
Delaware corporation."
(4) The definition of "Maximum Amount" shall be amended
by deleting the reference therein to "$3,000,000" and replacing it with
"$7,000,000."
<PAGE> 2
(5) The definition of "Related Documents" shall be
amended by deleting the reference therein to ", the Shareholder Guaranty, the
Shareholder Pledge Agreement."
(6) The definitions of "Shareholder Guarantee" and
"Shareholder Pledge Agreement" are hereby deleted in their entirety.
(7) The following definition shall be added after the
definition of "Subsidiary Security Agreement": "'Travel Too' shall mean Travel
Too Ltd., a Delaware corporation."
(c) Section 2.6 of the Credit Agreement shall be amended by
deleting the words "plus the applicable margin" in the first sentence thereof
and by deleting the second sentence thereof in its entirety.
(d) Section 3.1(b) of the Credit Agreement shall be amended by
deleting the reference therein to "1.0%" and replacing it with ".5%".
(e) Section 5.1 of the Credit Agreement shall be amended as
follows:
(1) Section 5.1(a) of the Credit Agreement is hereby
amended by deleting the first word of such Section and adding the words "Except
as set forth on Schedule 5.1, the" before the second word thereof.
(2) Section 5.1(c) is hereby amended by deleting the
first word of such Section and inserting the words "Except as set forth on
Schedule 5.1, the" before the second word thereof.
(f) Section 5.3 of the Credit Agreement shall be amended by
deleting the last three sentences thereof in their entirety and replacing them
with "The Company has no subsidiaries except IMPAQ, Countrywide Dental, Inc.,
Travel Too and CPC. None of IMPAQ, Countrywide Dental, Inc. or Travel Too have
any Subsidiaries. CPC has two wholly owned Subsidiaries, CSC and CMC. IMPAQ
owns a 50% interest in RSVP".
(g) Section 5.8 of the Credit Agreement shall be amended by
deleting the first word of such Section and adding the words "Except as set
forth on Schedule 5.8, neither" before the second word thereof.
(h) Section 5.9(a) of the Credit Agreement shall be amended by
deleting the first word of such Section and adding the words "Except as set
forth on Schedule 5.9, the" before the second word thereof and by deleting the
words "and none of such property is subject to any Lien" in their entirety.
2
<PAGE> 3
(i) Section 5.17 shall be amended by deleting the reference to
the Shareholder Pledge Agreement in the first sentence thereof.
(j) Section 5.19 of the Credit Agreement shall be amended by
deleting the first word of such Section and adding the words "Except as set
forth on Schedule 5.19, since" immediately before "June 30, 1994."
(k) Schedule 5.1, attached hereto, is hereby added to the
Credit Agreement.
(l) Schedule 5.7 to the Credit Agreement is hereby deleted in
its entirety and replaced with Schedule 5.7 attached hereto.
(m) Schedule 5.8, attached hereto is hereby added to the Credit
Agreement.
(n) Schedule 5.9, attached hereto, is hereby added to the
Credit Agreement.
(o) Schedule 5.18 to the Credit Agreement is hereby deleted in
its entirety and replaced with Schedule 5.18 attached hereto.
(p) Schedule 5.19, attached hereto, is hereby added to the
Credit Agreement.
(q) Exhibits D and E to the Credit Agreement are hereby deleted
in their entirety.
SECTION 3. RELEASE OF SHAREHOLDER GUARANTEE AND SHAREHOLDER PLEDGE
AGREEMENT. The Collateral Agent hereby confirms that it has, with the
permission of all of the Lenders, released the Shareholders from the
Shareholder Guarantee and the Shareholder Pledge Agreement and returned all
collateral pledged under the Shareholder Pledge Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. The Company
represents and warrants to the Lenders and the Agent that (i) the
representations and warranties set forth in the Credit Agreement (as amended
hereby) are true and complete on the date hereof as if made on and as of the
date hereof (or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date).
SECTION 5. CONDITIONS PRECEDENT. As provided in Section 2 above, the
amendment to the Credit Agreement set forth in said Section 2 shall become
effective, as of the date hereof, upon the satisfaction of the following
conditions precedent:
(a) Execution by All Parties. This Amendment No. 1 shall have been
executed and delivered by each of the parties hereto.
3
<PAGE> 4
(b) Note. A Note payable to the order of Brown Brothers Harriman & Co.
in the principal amount of $7,000,000 shall have been executed and delivered by
the Company.
(c) Subsidiary Guarantee. A Subsidiary Guarantee, in the form of
Exhibit F to the Credit Agreement, shall be executed by each of CPC, CMC, CSC
and Travel Too guaranteeing, on a joint and several basis, the payment of the
Obligations.
(d) Subsidiary Security Agreement. Subsidiary Security Agreements, in
the form of Exhibit G to the Credit Agreement, shall be executed by each of
CPC, CMC, CSC and Travel Too securing each such Subsidiaries' obligations under
the Subsidiary Guarantee.
(e) Amendment No. 2 to Security Agreement. Amendment No. 2 to the
Security Agreement shall have been executed and delivered by the parties hereto.
(f) Supporting Documents. The Agent shall have received, with
sufficient copies for each Lender, the following documents, each of which shall
be satisfactory to the Agent and the Lenders in form and substance:
(1) Corporate Documents. The following documents, each certified
as indicated below:
(A) a copy of any amendments to the charter of the
Company since April 8, 1996, certified by the Secretary of State
of Delaware; and
(B) a certificate of the Secretary or an Assistant
Secretary of the Company dated as of a recent date and
certifying (i) that attached thereto is a true and complete copy
of resolutions duly adopted by the board of directors of the
Company authorizing the execution, delivery and performance of
this Amendment No. 1 and the Credit Agreement as amended hereby
and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (ii) that the charter
of the Company has not been amended since the date of the
certification thereto furnished pursuant to clause (A) above and
that the by-laws of the Company have not been amended since the
date a certified copy thereof was delivered pursuant to
subsection 4.1(f) of the Credit Agreement, and (iii) as to the
incumbency and specimen signature of each officer of the Company
executing this Amendment No. 1.
(C) a certificate of the Secretary or an Assistant
Secretary of each of CPC, CMC, CSC and Travel Too certifying as
to the incumbency and specimen signatures of each officer
authorized to sign on its behalf the related Documents to which
4
<PAGE> 5
it is a party and to which are attached copies, certified to be
true, correct and complete and in full force and effect of (i)
its charter, (ii) its by-laws and (iii) resolutions of its Board
of Directors authorizing its execution delivery and performance
of the Related Documents to which it is a party.
(D) Good Standing certificates for the Company, and each
of CPC, CMC, CSC and Travel Too from the Secretary of the State
of their respective jurisdictions of incorporation.
(E) an opinion of counsel to each of the Company, CPC,
CMC, CSC and Travel Too that this Amendment and each of the
Related Documents being executed in connection herewith to which
it is a party are within its corporate power and authority, have
been duly authorized, executed and delivered and constitute its
legal, valid, binding and enforceable obligation.
(2) Other Documents. Such other documents (including any Form
UCC Financing Statements) as the Agent or any Lender may reasonably
request.
(g) Fees and Expenses.
(1) Upon execution of this Amendment No. 1, the Company shall
pay to the Agent for its own account a closing fee of $20,000.
(2) The Company shall have paid to the Agent all reasonable
out-of-pocket expenses, including the fees and disbursements of Rogers &
Wells, counsel to the Agent, incurred by the Agent in connection with
the preparation, execution and delivery of Amendment No. 1 and each of
the other documents and instruments contemplated hereby
SECTION 6. MISCELLANEOUS. Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 1 may be executed in any number of counterparts, all of which taken
together shall constitute one and the same amendatory instrument and any of the
parties hereto may execute this Amendment No. 1 by signing any such
counterpart. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
5
<PAGE> 6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be duly executed and delivered as of the day and year first above written.
MEMBERWORKS INCORPORATED
By: /s/ James B. Duffy
--------------------------------
Name: James B. Duffy
Title: Treasurer and Secretary
per pro BROWN BROTHERS HARRIMAN & CO.,
as Agent, Collateral Agent and Lender
/s/ W. Carter Sullivan III
--------------------------------
Name: W. Carter Sullivan III
Title: Senior Manager
6
<PAGE> 7
FINANCIAL CONDITION
(a) The Company restated is financial statements in 1996 (the "1996
Restatement") which restatement affected the financial statements for years
1992 - 1995.
(b) The projections were affected as a result of the 1996 Restatement and should
not be relied upon.
7
<PAGE> 8
SCHEDULE 5.7
MATERIAL LITIGATION
The lawsuit involving Thomas St. Denis was settled and dismissed.
8
<PAGE> 9
SCHEDULE 5.8
NO DEFAULT
The representation and warranties in the Related Documents are not being updated
for purposes of this Amendment No. 1 to the Amended and Restated Credit
Agreement.
9
<PAGE> 10
SCHEDULE 5.9
LIENS
1. Liens disclosed by UCC-1 Financing Statements of record.
10
<PAGE> 11
SCHEDULE 5.18
LIST OF EMPLOYMENT AGREEMENTS
The Agreement dated as of July 31, 1989 between the Company and Thomas St. Denis
was terminated and the Company was released from further obligations thereunder
pursuant to the settlement of the litigation referenced in SCHEDULE 5.7.
11
<PAGE> 12
DIVIDENDS
In connection with the Company's initial public offering, the Company redeemed
the Series E and F Preferred Stock and paid all dividends accrued and unpaid
thereon.
12
<PAGE> 1
EXHIBIT 10.23
NOTE TO PROPERTY MANAGER:
SEE SEPARATE LEASE AGREEMENT, DATED JANUARY 15, 1996, BETWEEN LANDLORD AND
CARDMEMBER PUBLISHING CORPORATION, AS AMENDED BY FIRST AMENDMENT TO LEASE, DATED
MAY 20, 1997, FOR TERMS OF TENANT'S LEASE OF SPACE ON 11TH FLOOR OF 680
WASHINGTON BOULEVARD.
LEASE AGREEMENT
Between
STAMFORD TOWERS LIMITED PARTNERSHIP
Landlord,
and
MEMBERWORKS INCORPORATED
Tenant
Respecting 8,976 RSF Located on 6th Floor of 750 Washington Boulevard
<PAGE> 2
LEASE AGREEMENT
BETWEEN
STAMFORD TOWERS LIMITED PARTNERSHIP
and
MEMBERWORKS INCORPORATED
Respecting 8,976 RSF Located on 6th Floor of 750 Washington Boulevard
TABLE OF CONTENTS
Page
ARTICLE 1 REFERENCE DATA 2
ARTICLE 2 DEFINITIONS 3
ARTICLE 3 DEMISED PREMISES AND TERM 7
Demised Premises; Common Areas and Parking 7
Term; Construction of Tenant's Work 7
Tenant to Construct Tenant's Work to Demised Premises; 8
Landlord's Allowance 8
Early Occupancy 8
Allowance 9
Tenant's Obligation to Pay for Excess Costs of Tenants Work 10
Tenant's Contractors 10
Collateral Assignment of Tenant's Architect's
and Engineer's Contracts 11
Establishing Commencement Date 11
ARTICLE 4 RENT AND SECURITY DEPOSIT 11
Fixed Rent 11
Additional Rent 12
Past Due Rent 12
Security Deposit 12
<PAGE> 3
No Rent Waiver 13
Rent Restrictions 13
No Accord and Satisfaction 13
ARTICLE 5 TENANT'S SHARE OF TOTAL COSTS 14
Definitions 14
Tenant's Share of Total Costs 18
Change to Fiscal Year 20
Change in Tenant's Share of Total Costs 21
ARTICLE 6 TAXES ON TENANT'S PROPERTY 21
Tenant's Property 21
ARTICLE 7 CONDITION OF DEMISED PREMISES 22
Condition of Demised Premises 22
Landlord's Representations 22
ARTICLE 8 USE OF DEMISED PREMISES 23
Use of Demised Premises 23
Compliance with Laws and Requirements 23
Use of Common Area 26
ARTICLE 9 REPAIRS, ALTERATIONS AND MAINTENANCE 26
Care of Demised Premises 26
Tenant's Repairs 26
Landlord's Repairs 27
Tenant's Alterations 28
Mechanics' and Other Liens 30
ARTICLE 10 UTILITIES AND BUILDING SERVICES 30
Heating and Air Conditioning 30
Water 31
Cleaning Service 31
Elevators 32
Security; Access 32
Interruption of Services 32
ii
<PAGE> 4
Electricity 33
Adjustment for Utilities and Building Services 34
ARTICLE 11 INSURANCE AND INDEMNITY 34
Insurance 34
Indemnity and Non-Liability 37
Waiver of Subrogation 38
Landlord's Insurance 39
ARTICLE 12 DAMAGE BY CASUALTY 39
Casualty Damage 39
ARTICLE 13 EMINENT DOMAIN 41
Taking of Demised Premises 41
Termination of Lease 42
Awards 42
ARTICLE 14 RIGHTS RESERVED TO LANDLORD 42
Access to Demised Premises 42
Additional Rights 44
ARTICLE 15 ASSIGNMENT AND SUBLETTING 45
Consent Required 45
Landlord's Rights to Assignments and Leasebacks 46
Required Documents 48
Landlord's Consent 48
Limitations 49
Attornment of Subtenant 50
Sums Payable to Landlord 50
Waiver 51
Mortgagee Notice 51
Permitted Assignment or Sublease 51
ARTICLE 16 TENANT'S DEFAULT AND LANDLORD'S REMEDIES 51
Events of Default 51
Landlord's Remedies 52
iii
<PAGE> 5
Damages 54
No Waiver; Injunction 55
Remedies Cumulative 56
ARTICLE 17 SURRENDER OF PREMISES AND SURVIVAL OF
TENANT'S OBLIGATIONS 56
Surrender 56
Trade Fixtures, Personal Property, and Improvements 56
Merger 56
Survival; Payments After Termination 57
ARTICLE 18 HOLDING OVER 57
Holding Over 57
ARTICLE 19 ESTOPPEL CERTIFICATE, SUBORDINATION,
ATTORNMENT 57
Estoppel Certificate 57
Subordination and Non-Disturbance 58
Attornment 58
Mortgages 59
ARTICLE 20 QUIET ENJOYMENT 59
Quiet Enjoyment 59
ARTICLE 21 NOTICES 59
Notices 59
ARTICLE 22 MISCELLANEOUS PROVISIONS 60
Applicable Law 60
Parties Bound 60
Rules and Regulations 60
Signs 61
Entire Agreement 61
Severability 62
Brokers 62
Exculpatory Clause 64
iv
<PAGE> 6
No Recording; Notice of Lease 64
Financial Information 64
Light and Air 65
Inability to Perform 65
Waiver of Counterclaims; Waiver of Jury Trial, Etc. 65
No Surrender 66
Modification of Lease 66
Headings 66
Parking 66
Authority 67
Opinion of Counsel 67
Lease Condition; Mortgagee Notice 68
Joint and Several Liability 68
No Offer 68
Security 69
Construction 69
v
<PAGE> 7
EXHIBITS INDEX
RIDER 1 RENEWAL OPTION
EXHIBIT A FLOOR PLAN SHOWING DEMISED PREMISES
EXHIBIT A-1 DESCRIPTION OF PROJECT
EXHIBIT A-2 HOLIDAYS
EXHIBIT B WORK LETTER
EXHIBIT B-1 REQUIRED TENANT'S WORK
EXHIBIT C COMMENCEMENT DATE AGREEMENT
EXHIBIT D RULES AND REGULATIONS
EXHIBIT E CLEANING SPECIFICATIONS
This Lease is made between Landlord and Tenant named in Article 1. Landlord and
Tenant agree to the terms and conditions set forth in this Lease.
<PAGE> 8
ARTICLE 1: REFERENCE DATA
Each reference in this Lease to any of the following subjects shall
incorporate the following data for that subject:
DATE OF THIS LEASE: As of May 20, 1997.
LANDLORD: STAMFORD TOWERS LIMITED PARTNERSHIP, a Delaware limited partnership,
having an address at c/o CB Commercial Real Estate Group, 680 Washington
Boulevard, Stamford, Connecticut 06902.
TENANT: MEMBERWORKS INCORPORATED (a Delaware corporation), previously known as
Cardmember Publishing Corporation, having its principal office at 680 Washington
Boulevard, Stamford, Connecticut 06902, Attention: Mr. James B. Duffy, Chief
Financial Officer.
DEMISED PREMISES: Approximately 8,976 rentable square feet on the sixth (6th)
floor of the Building as shown on the floor plan attached hereto as Exhibit A.
TENANT'S USE OF THE DEMISED PREMISES: Executive and general office use (provided
Tenant's particular use shall not be in violation of any Applicable Laws or
regulations as defined in Section 8.2 (a) herein) and for no other use and
purpose whatsoever.
COMMENCEMENT DATE: Shall be the earlier to occur of (i) September 1, 1997, or
(ii) the date that Tenant takes possession of any part of the Demised Premises,
other than for the construction of the Tenant's Work or for the construction and
installation of furniture and equipment. The Tenant's obligation to pay Fixed
Rent and Additional Rent (as defined in this Lease) shall commence upon the
Commencement Date. Once the Commencement Date is established, the Landlord and
Tenant shall each execute the Commencement Date Agreement attached hereto as
Exhibit C.
TERM: The Term shall commence upon the Commencement Date and expire upon the
Expiration Date (e.g., March 14, 2006), unless sooner terminated pursuant to the
provisions hereof or extended pursuant to Rider 1 hereof.
ANNUAL FIXED RENT: Two Hundred Fifty One Thousand Three Hundred Twenty-Eight
Dollars ($251,328), per annum, during the Term.
MONTHLY FIXED RENT: Twenty Thousand Nine Hundred Forty-Four Dollars ($20,944),
per month during the Term.
2
<PAGE> 9
TENANT'S (PROJECT) OPERATING
SHARE: 2.758 %
TENANT'S (BUILDING) TAX SHARE: 4.652 %
BASE YEAR: Shall consist of the twelve (12) month period beginning July 1, 1997
and ending on June 30, 1998.
RENTABLE AREA OF THE DEMISED PREMISES: Approximately 8,976 rentable square feet.
NUMBER OF PARKING SPACES: Two and one/half (2.5) parking spaces per each 1,000
rentable square feet in the Demised Premises (e.g. twenty-two (22) parking
spaces for the 8,976 rentable square feet of the Demised Premises), which shall
be furnished to Tenant on a "first-come, first-serve", non-exclusive and
rent-inclusive basis. Landlord shall furnish Tenant with two and one/half (2.5)
passenger motor-vehicle parking garage/lot use cards per 1,000 rentable square
feet in the Demised Premises (e.g. twenty-two (22) parking garage/lot use cards
for the 8,976 rentable square feet of the Demised Premises). All such parking
garage/lot use cards shall provide the holder with passenger motor-vehicle
access to the Building parking garage and the Building outdoor parking lot at
all times during the Term.
SECURITY DEPOSIT: All sums deposited as security by tenant under the 680 Lease
shall be deemed to be also held as security for Tenant's performance of its
obligations under this Lease, as more particularly provided in Section 4.4
(Security Deposit) herein.
BROKERS: Rostenberg-Doern/ ESG, of Stamford, Connecticut, as exclusive agent for
Landlord, and The Galbreath Company of Stamford, Connecticut, as Tenant's
exclusive broker.
ARTICLE 2: DEFINITIONS
Notwithstanding the data stated in Article 1 hereof, for all
purposes of this Lease, the terms defined in this Article shall have the
meanings specified in this Article unless the context otherwise requires.
(a) "Additional Rent" shall mean any sums of money or charges to be
paid by Tenant pursuant to the provisions of this Lease, including, but not
limited to electricity charges, other than Fixed Rent. Tenant's obligation to
pay Additional Rent shall commence upon the Commencement Date.
3
<PAGE> 10
(b) "Allowance" shall have the meaning ascribed to it in Exhibit B
hereto.
(c) "Applicable Laws" shall mean all laws, statutes, ordinances,
orders and governmental rules or regulations, including but not limited to all
zoning, building codes, fire codes, Environmental Laws and all provisions of the
Americans with Disabilities Act (42 U.S.C. Section 12,101) et seq., now in force
or which may be enacted or promulgated in the future and all orders, rules and
regulations of the Connecticut Board of Fire Underwriters or any similar body
which shall impose any violation, order or duty upon Landlord or Tenant with
respect to (i) Tenant's use of the Demised Premises, (ii) any improvements
constructed by or for Tenant in the Demised Premises.
(d) "Base Rate" shall mean the fluctuating annual interest rate
announced publicly from time to time by Chase Bank of New York (or its
successor), as its Prime Rate.
(e) "Building" shall mean that portion of the Land as is described
as Parcel 1 on Exhibit A-1 hereto, together with the building and all
improvements located thereon and replacements thereof to the office tower having
an address at 750 Washington Boulevard, Stamford, Connecticut known as the North
Tower.
(f) "Commencement Date" shall meaning provided in Article 1 above.
(g) "Common Area" shall mean those parts of the Building and/or the
Project designated by Landlord for the common use of all tenants, invitees and
others, including, but not limited to, the parking areas, sidewalks,
landscaping, curbs, driveways, entrances, passageways, delivery passages,
loading areas, non-dedicated mechanical, telephone and storage rooms, lighting
facilities, drinking fountains, lobbies, security and/or concierge areas,
elevators, public toilets, and such other areas and/or facilities therein as
Landlord may, from time to time, make generally available for use by all such
parties.
(h) "Days" shall mean calendar days unless specifically stated
otherwise in this Lease.
(i) "Environmental Law" shall mean and include the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901-6987, as amended
by the Hazardous and Solid Waste Amendments of 1984, the Comprehensive
Environmental Response, Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. Sections
9601-9657, the Hazardous Materials Transportation Act of 1975, 49 U.S.C. Section
1801-1812, the Toxic Substances Control Act, the Clean Air Act, 42 U.S.C.
Sections 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7
U.S.C. Sections 136 et seq., but shall not include any amendments to any of
4
<PAGE> 11
the foregoing from and after the date of this Lease and shall not include any
future new laws howsoever similar.
(j) "Expiration Date" shall mean March 14th, 2006. Unless sooner
terminated pursuant to the provisions of this Lease, or extended pursuant to
Rider 1 hereof, the Term of this Lease shall expire on the Expiration Date.
(k) "Fixed Rent" shall mean the Monthly Fixed Rent, when such term
is not otherwise specifically designated herein as the Monthly Fixed Rent.
(l) "Force Majeure" shall mean and include those situations beyond
the party's reasonable control including, but not limited to: acts of God;
accidents; third-party repairs; strikes or other labor actions; shortages of
labor, supplies or materials; severe weather conditions; natural disasters; fire
or other casualty and delays in adjustments with insurance carriers; in the case
of Landlord, any default by Tenant or any other tenant in the Project in its
leasehold obligations; government preemption in connection with a national
emergency, or by reason of any rule, order or regulation of any department or
subdivision thereof of any government agency; or by reason of the conditions of
supply and demand which have been or are affected by war or other emergency.
(m) "Hazardous Substances" shall mean and include any, each and all
substances or materials regulated pursuant to any Environmental Laws, including,
but not limited to, any such substance, emission or material presently defined
as or deemed to be a regulated substance, hazardous substance, toxic substance,
pesticide, explosives, radioactive materials, hazardous waste or any similar or
like classification or categorization thereunder, but shall not include any
substances deemed hazardous under any Environmental Law after the date of this
Lease.
(n) "Holidays" shall mean those days listed on Exhibit A-2 hereto.
(o) "Improvements" shall mean any and all equipment, fixtures,
wires, cables, conduits, partitions or other items installed in or about and any
and all alterations and/or additions made to the Demised Premises and/or the
Building by or on behalf of Tenant including without limitation, all Tenant's
Work (as defined in Exhibit B hereto). Improvements shall not include personal
property owned by Tenant and located in the Demised Premises.
(p) "Landlord" shall mean the then owner of the Building of which
the Demised Premises form a part.
(q) "Lease Year" shall mean the twelve (12) month period beginning
on the Commencement Date and each ensuing twelve (12) month period during the
Term.
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(r) "Loss" shall have the meaning ascribed to it in Article 11.
(s) "Normal Business Hours" shall mean 8:00 a.m. until 6:00 p.m.
weekdays, exclusive of Holidays.
(t) "Overnight Parking Area" shall mean that portion, if any, of the
parking area designated by Landlord for overnight parking.
(u) "Project" shall mean, collectively, (i) the land described in
Exhibit A-1 (the "Land"), (ii) the Building, (iii) the building having an
address of 680 Washington Boulevard, Stamford, Connecticut (also known as the
South Tower), and (iv) all other improvements now located on the Land and any
replacements thereof having on the date hereof approximately 325,416 rentable
square feet, currently known as Stamford Towers, to the extent that the same are
owned by Landlord.
(v) "Rent" shall mean Fixed Rent, Additional Rent and any other
charge which Tenant is obligated to pay under this Lease.
(w) "Rules and Regulations" shall mean the rules and regulations
promulgated by Landlord and to be observed by Tenant and its servants, agents,
employees, invitees and contractors, as set forth in Exhibit D, and any changes
thereto.
(x) "Tenant" shall mean the Tenant named in this Lease and any
person, firm, corporation or other legal entity, immediate or remote, to which
Tenant's interest in this Lease may be permissibly assigned pursuant to the
terms of this Lease.
(y) "Term" shall mean the term of this Lease, commencing on the
Commencement Date and ending on the Expiration Date, unless sooner terminated or
otherwise extended pursuant to the terms of this Lease.
(z) "680 Lease" shall mean that certain Lease Agreement, dated as of
January 15, 1996, between Stamford Towers Limited Partnership, as landlord, and
Cardmember Publishing Corporation (now know as Memberworks Incorporated), as
tenant thereunder, covering approximately 18,650 rentable square feet of space
on the eleventh (11th) floor of the building commonly known as 680 Washington
Boulevard, Stamford, Connecticut.
Note: "Landlord" and "Tenant" as defined in this Article 2 are separately
defined in each of Article 11 and Paragraph 17 of Exhibit D for purposes of that
Article and Paragraph only.
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ARTICLE 3: DEMISED PREMISES AND TERM
Section 3.1 Demised Premises; Common Areas and Parking. Landlord
hereby leases to Tenant, and Tenant hereby leases from Landlord for the Term and
Rent and upon the other conditions and covenants provided herein, the Demised
Premises, together with the right to use in common with Landlord, other tenants
in the Building, their invitees and others, the Common Area accesses, lobbies,
and hallways which are intended for their common use. In addition, the Demised
Premises are leased together with the number of parking spaces indicated in
Article 1, on a non-exclusive, but rent-inclusive basis. The parking spaces
shall, as determined by Landlord, either be in the garage at the Building or in
the outdoor parking lot adjoining the Building. Tenant's use of the non-reserved
parking facilities in the Building and outdoor lot shall be in common with other
tenants or occupants of the Building and shall be subject to (a) the rules and
regulations of Landlord for such parking facilities which may be established or
altered by Landlord at any time or from time to time during the Term, and (b)
Section 22.17 hereof.
Section 3.2. Term; Construction of Tenant's Work.
(a) Term. The Term of this Lease shall commence on the Commencement
Date and shall end on the Expiration Date, unless sooner terminated pursuant to
the provisions hereof, or extended pursuant to Rider 1 hereto.
(b) Delay in Delivery of Possession. If for any reason whatsoever,
Landlord cannot deliver possession of the Demised Premises to Tenant, for the
purpose of constructing the Tenant's Work, on the date this Lease is
fully-executed and approved by Landlord's Mortgagee as provided herein, this
Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for
any loss or damage resulting therefrom. In that event, the Commencement Date,
and Tenant's obligations for Rent hereunder shall commence upon the later of (i)
September 1, 1997, or (ii) 120 days after the date Landlord delivers possession
of the Demised Premises to Tenant for the purpose of constructing the Tenant's
Work pursuant to the terms of this Lease, and such date shall thereafter be the
Commencement Date for all purposes hereof, unless such delay in delivery is due
in whole or in part by any act or omission by Tenant, its officers, employees,
contractors, agents and/or invitees, or by an event of Force Majeure, in which
case there shall be no delay in the Commencement Date or in Tenant's obligations
to pay Rent hereunder. Notwithstanding the foregoing, in the event Landlord is
unable to deliver possession of the Demised Premises to Tenant for the purpose
of constructing the Tenant's Work pursuant to the terms of this Lease on or
before the date which is one hundred eighty days (180) after the date this Lease
is fully-executed and approved by Landlord's Mortgagee as provided herein then
Tenant may elect to terminate this Lease effective as of the day which is thirty
(30) days after Tenant delivers written notice to Landlord of Tenant's election
hereunder, unless Landlord is able to deliver possession of the Demised Premises
to Tenant during
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such thirty (30) day period in which event Tenant's termination notice shall be
deemed ineffective and this Lease shall remain in full force and effect in
accordance with its terms.
(c) Change in Commencement Date. If the Commencement Date is changed
pursuant to Section 3.2(b), Landlord shall, in accordance with the foregoing,
fix the Commencement Date, and shall notify Tenant of the date so fixed. If the
Commencement Date is changed pursuant to Section 3.2(b), the Expiration Date
shall remain as stated in Article 2 herein. The parties shall, within fifteen
(15) days thereafter, at Landlord's request, execute a written agreement
confirming any such change in the Commencement Date in the form of Exhibit C
hereto. Any failure of the parties to execute such agreement shall not affect
the validity of the Commencement Date as fixed by Landlord as aforesaid.
Section 3.3 Tenant to Construct Tenant's Work to Demised Premises;
Landlord's Allowance. Tenant shall, at Tenant's sole cost and expense, subject
to the terms of Section 3.5(Allowance) below, perform all such work to the
Demised Premises as may be necessary or desirable for Tenant's use and occupancy
thereof, including, but not limited to, any electrical (including the
installation of an outlet box receptacle for Tenant's data, communications and
telephone lines), plumbing, air-conditioning, mechanical or structural work to
meet Tenant's Requirements ("Tenant's Work"). The final plans and specifications
for the Tenant's Work shall be subject to Landlord's prior approval in
accordance with Exhibit B. All Tenant's Work shall be undertaken and completed
on or prior to November 1, 1997, subject to Force Majeure and in accordance with
the provisions of this Lease, including without limitation, Exhibits B and B-1
hereto and Article 9 hereto. Performance of Tenant's Work shall not serve to
extend the Commencement Date, or abate or extend the date for commencement of
Tenant's obligation to pay Rent under this Lease; providing, however, that if
Landlord's failure to substantially comply with any of its obligations under
this Lease, including Exhibit B hereto, should be the sole cause of any delay in
the Tenant's substantial completion of the Tenant's Work necessary to prepare
the Demised Premises for Tenant's initial occupancy thereof (with Tenant and
Tenant's contractors not having caused any delay in such substantial
completion), then the Commencement Date shall be postponed by a period of time
equivalent to the length of such Landlord delay. Tenant shall pay Landlord a fee
for Landlord's review of the Space Plans and the Working Drawings for Tenant's
Work and for the Landlord's inspection, administration and coordination of
Landlord's Work as determined under paragraph 8 (n) of Exhibit B hereto.
Section 3.4. Early Occupancy. Provided all conditions to the legal
effectiveness of this Lease have been satisfied, including Landlord's receipt of
the consent and approval of Landlord's Mortgagee to this Lease and provided
further that Landlord has approved Tenant's Work Plans for the construction of
the Initial Tenant's Work, Landlord shall grant Tenant access to the Demised
Premises prior to the Commencement Date
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("Early Occupancy"), on the terms and conditions set forth below, for the sole
purpose of enabling Tenant to construct the Tenant's Work:
(i) Prior to any Early Occupancy, Tenant shall have performed and
fulfilled all obligations then required to be performed and fulfilled by Tenant
under this Lease, including (1) the payment of the Monthly Base Rent for the
first month of the Lease Term, (2) the full execution of the First Amendment To
Lease for the 680 Lease, (3) the delivery of all documents required to be
delivered by Tenant under Section 22.19 (Opinion of Counsel, Etc.), and (4) the
delivery of the insurance policies or insurance certificates required to be
delivered under Article 11 (Insurance and Indemnity) and Paragraph 9 (Insurance)
of Exhibit B.
(ii) Tenant shall provide Landlord with not less than two (2)
business days' prior notice of Tenant's desire to enter the Demised Premises
during any period of Early Occupancy;
(iii) All other conditions to the commencement of the Tenant's Work
as specified in Exhibit B have been satisfied, including Landlord's approval of
Tenant's general contractor and all subcontractors for the Initial Tenant's Work
and Tenant's delivery to Landlord of complete, fully executed copies of Tenant's
Construction Contract, Architect's Contract and Engineer's Contract for the
Initial Tenant's Work; and
(iv) Tenant's entry into the Demised Premises, during any period of
Early Occupancy, shall be subject to all of the terms, conditions and
obligations of this Lease, including Tenant's obligation to pay Additional Rent
for the Demised Premises from and after Tenant's entry into the Demised Premises
for the purpose of constructing the Initial Tenant's Work (which shall include
electricity charges as provided in Section 10.7 (Electricity) herein); provided,
however, that no Monthly Base Rent shall be payable by reason of Tenant's Early
Occupancy of the Premises prior to the Commencement Date.
Section 3.5. Allowance. Providing that Tenant fulfills all of its
obligations under this Article 3 in connection with the construction of the
Tenant's Work which is necessary to prepare the Demised Premises for the
Tenant's initial occupancy thereof and provided further that Tenant is not then
in default under this Lease, Landlord shall provide Tenant with the Allowance
amount specified in Exhibit B hereto, in accordance with the terms and
conditions set forth in Exhibit B, which Allowance amount shall be applied
towards the cost of constructing the Tenant's Work necessary to prepare the
Demised Premises for the Tenant's initial occupancy thereof in accordance with
plans and specifications approved by Landlord prior to the execution of this
Lease and in accordance with the terms of Exhibit B. Landlord does not represent
that the Allowance will be adequate to pay for the cost of Tenant's Work to
prepare the Demised Premises for Tenant's initial occupancy and Tenant shall be
solely responsible for all costs of Tenant's Work in
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excess of the Allowance amount. In the event that the Work Costs (as defined in
Exhibit B) of the Tenant's Work, which are eligible for Allowance reimbursement
pursuant to Exhibit B, are less than the Allowance amount, then any unused
Allowance amounts shall be and remain the sole property of the Landlord. All
defined terms used in Exhibit B are hereby incorporated as if the definitions
were fully set forth herein.
Section 3.6. Tenant's Obligation to Pay for Excess Costs of Tenant's
Work. For purposes of this Lease the "Estimated Construction Deficiency" shall
be deemed to be Landlord's good faith estimate of the anticipated deficiency
between the Allowance amount and the anticipated costs to construct the Tenant's
Work, based upon the Budget and Construction Contract for the Tenant's Work
submitted to Landlord. Landlord does not represent that the actual Construction
Deficiency Amount (if any) will not exceed Landlord's Estimated Construction
Deficiency amount. Tenant shall be required to pay to its General Contractor
those costs of the construction of the Initial Tenant's Work first becoming due
and payable, as evidenced by the General Contractor's applications for payment
in the form of Paragraph 2 of Exhibit B hereto, in an amount equal to the
Estimated Construction Deficiency, prior to Landlord funding any Allowance
amounts to Tenant hereunder. Notwithstanding anything to the contrary contained
herein, Landlord shall have no obligation to fund any Allowance amounts to
Tenant unless Tenant shall first pay the Estimated Construction Deficiency in
the time and manner provided herein. Tenant's obligation to pay the Estimated
Construction Deficiency and any actual Construction Deficiency prior to
Landlord's payment of the Allowance shall be deemed to be Additional Rent
hereunder and Landlord shall have all rights and remedies applicable to the
non-payment of Additional Rent in the event Tenant shall fail to pay the
Estimated Construction Deficiency in the time and manner provided herein.
Section 3.7. Tenant's Contractors. The general contractor and all
subcontractors used for the construction of the Tenant's Work shall be subject
to Landlord's prior approval. The general contractor used for the construction
of the Tenant's Work must enter into Landlord's standard form of AIA Contract
and Rider. Landlord hereby approves The Galbreath Company of Stamford,
Connecticut as the Tenant's general contractor for the construction of the
initial Tenant's Work, to be undertaken prior to the Commencement Date, which
may be necessary to prepare the Demised Premises for the Tenant's initial
occupancy thereof. If the Tenant does not use The Galbreath Company as its
general contractor for the initial Tenant's Work, the general contractor used
for the construction of the initial Tenant's Work shall be jointly selected by
Landlord and Tenant from competitive bids procured by Landlord and Tenant.
Landlord's approval of The Galbreath Company as the Tenant's general contractor
for the construction of the initial Tenant's Work shall not constitute
Landlord's approval of The Galbreath Company as the Tenant's general contractor
for any future Tenant's Work which the Tenant may be permitted to perform
pursuant to this Lease. The general contractor used for the construction of any
Tenant's Work, which may be undertaken by Tenant subsequent to the initial
Tenant's
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Work, shall be jointly selected by Landlord and Tenant from competitive bids
procured by Landlord and Tenant.
Section 3.8. Collateral Assignment of Tenant's Architect's and
Engineer's Contracts. In consideration for this Lease and the Allowance amount,
Tenant hereby collaterally assigns to Landlord all architectural and engineering
contracts which Tenant may have entered into in connection with the Tenant's
Work, including all original plans and drawings produced by any such architects
and engineers in connection therewith. Upon the occurrence of an Event of
Default hereunder and Landlord's exercise of any of its remedies set forth in
Section 16.2 herein, Landlord may, but shall not be obligated to, succeed to all
of Tenant's right, title and interest in and to such contracts and plans.
Section 3.9. Establishing Commencement Date. Upon the occurrence of
the Commencement Date, Landlord shall, in accordance with the foregoing, fix the
Commencement Date, and shall notify Tenant of the dates so fixed. The parties
shall, within fifteen (15) days thereafter, execute a written agreement
confirming such Commencement Date in the form of Exhibit C hereto. Any failure
of the parties to execute such agreement shall not affect the validity of the
Commencement Date as fixed by Landlord as aforesaid.
ARTICLE 4: RENT AND SECURITY DEPOSIT
Section 4.1. Fixed Rent. Tenant agrees to pay to Landlord, at the
address set forth in Article 1 or at any other place designated by Landlord from
time to time, without any prior demand or notice and without any deduction or
set off whatsoever, the Fixed Rent as defined in Article 1, which shall be due
and payable in twelve (12) monthly installments, each equal to the Monthly Fixed
Rent as defined in Article 1. The Monthly Fixed Rent shall be paid in advance,
on the first day of each calendar month during the Term, except that Tenant's
first installment of Monthly Fixed Rent on account of the first (1st) month of
the Term shall be paid to Landlord upon Tenant's execution of this Lease. In the
event that Tenant fails to pay any installment of Fixed Rent within five (5)
days of its due date, Tenant shall pay interest on said overdue amount
commencing on the day following such fifth (5th) day through the date of payment
at the Base Rate plus five percent (5%). All payments of Fixed Rent shall be
made by the wiring of immediately available funds to such account as Landlord
may advise Tenant or by check payable to Landlord drawn on a bank which or is a
member of the New York Clearinghouse or its successor. If either the
Commencement Date or the Expiration Date is a day other than the first day of a
calendar month, then Tenant's Monthly Fixed Rent due for such partial calendar
month(s) shall be prorated on a per diem basis.
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Section 4.2. Additional Rent. Additional Rent hereunder shall be
payable within ten (10) days after Landlord gives written notice and demand for
payment, except as otherwise specifically set forth herein. Payment shall be
made in the same manner as the Fixed Rent. Landlord shall have the same rights
against Tenant for the default in payment of Additional Rent as for a default in
the payment of the Fixed Rent. In the event that Tenant fails to pay any
installment of Additional Rent within five (5) days of its due date, all sums
payable as Additional Rent under this Lease shall be paid together with interest
thereon at the Base Rate plus five percent (5%) from the date Landlord incurs
the costs or makes the payment giving rise to such Additional Rent obligation.
If Tenant disputes the amount of Additional Rent payable as set forth in any
notice from Landlord, Tenant shall nonetheless pay the amount claimed by
Landlord to be payable, and if it is determined that the amounts so paid
exceeded those properly payable by Tenant, Landlord will refund any overpayment
to Tenant.
Section 4.3. Past Due Rent. If Tenant fails to pay any Rent on or
before the fifth (5th) day after such Rent is due, Tenant agrees to pay as
Additional Rent for the period that the Rent remains unpaid a late charge equal
to ten percent (10%) of the overdue payment; provided, however, that not more
than once in a given Lease Year the foregoing late charge shall not be
applicable unless and until Tenant shall fail to pay any Rent on or before the
tenth (10th) day after such Rent is due. Tenant agrees that such amount is not a
penalty, but is a reasonable amount to reimburse Landlord for the loss of the
use of the money and the additional administrative costs resulting from late
payments.
Section 4.4 Security Deposit. Tenant acknowledges that the security
deposit in the amount of One Hundred Seventy-Five Thousand Dollars ($175,000),
which Tenant has deposited with Landlord as the security deposit under the 680
Lease (the "Security Deposit"), shall, notwithstanding anything to the contrary
set forth in the 680 Lease, be maintained on deposit with Landlord, under
Tenant's identification tax number, throughout the Term of this Lease, as
security for Tenant's payment of the Rent and Tenant's faithful performance of
all of its obligations under this Lease as well as under the 680 Lease. If at
any time during the Term or any extension term, Tenant defaults in the
performance of any provisions of this Lease, Landlord may, but shall not be
required to, use the Security Deposit deposited under the 680 Lease (and any
monies theretofore paid by Tenant to Landlord, whether as advanced Rent or
otherwise), or so much thereof as necessary, to pay any Rent in default, or to
reimburse any expense or damages incurred by Landlord by reason of Tenant's
default. In such event, Tenant shall, on written demand of Landlord, immediately
wire to Landlord a sufficient amount of immediately available funds to restore
the Security Deposit to its original amount. Within sixty (60) days after the
end of the Term, and in the event such Security Deposit has not been entirely
utilized under the terms of the 680 Lease, or under the provisions of this Lease
as provided above, any remaining balance of the Security Deposit will be
refunded to Tenant, as provided in Section 4.4 of the 680 Lease, as amended. As
provided in the 680 Lease, Landlord will
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deliver the Security Deposit to the purchaser of Landlord's interest in the
Demised Premises in the event such interest is sold, and, as provided in the 680
Lease, Landlord shall thereupon be discharged from further liability with
respect to the Security Deposit, provided such purchaser assumes Landlord's
obligations hereunder with respect to the Security Deposit. Notwithstanding the
provisions of this Section 4.4, if the claims of Landlord under the 680 Lease or
this Lease exceed the Security Deposit under the 680 Lease, Tenant will remain
liable for the balance of such claims.
Section 4.5. No Rent Waiver. In no event shall any acceptance by
Landlord of any late payments of Fixed Rent or Additional Rent be determined to
be a consent by Landlord to any future late payments of Fixed Rent or Additional
Rent, nor shall such acceptance constitute a waiver by Landlord of any of its
rights or remedies hereunder or at law or equity. The receipt or acceptance by
Landlord of Fixed Rent and/or Additional Rent with knowledge of any breach by
Tenant of any term, agreement, covenant, condition or obligation of this Lease
shall not be deemed a waiver of such breach.
Section 4.6. Rent Restrictions. If the Fixed Rent or any Additional
Rent shall be or become uncollectible, reduced or required to be refunded by
virtue of any law, governmental order or regulation or direction of any public
officer or body pursuant to law (in the nature of a rent freeze or rent
restriction), Tenant shall enter into such agreement(s) and take such other
action (without additional expense to Tenant) as Landlord may request and as may
be legally permissible, to permit Landlord to collect the maximum Fixed Rent and
Additional Rent which may from time to time during the continuance of such legal
rent restriction be legally permissible, provided that in no event shall the
amount payable by Tenant as restricted rent exceed the Fixed Rent and Additional
Rent hereunder. Upon any termination of such a rent restriction prior to the
Expiration Date, (a) the Fixed Rent and Additional Rent shall become and
thereafter be payable under this Lease in the amount of the Fixed Rent and
Additional Rent set forth in this Lease for the period following such
termination, and (b) Tenant shall pay to Landlord, to the maximum extent legally
permissible, an amount equal to (i) the Fixed Rent and Additional Rent which
would have been payable pursuant to this Lease, but for such legal rent
restriction, less (ii) the Fixed Rent and Additional Rent paid by Tenant during
the period that such legal rent restriction was in effect. In the event Landlord
should at any time request that Tenant enter into any written agreement pursuant
to the terms of this Section 4.6, then Landlord shall reimburse Tenant for any
reasonable legal fees paid by Tenant to Tenant's outside legal counsel in
connection with Tenant's compliance with the terms of this Section 4.6.
Section 4.7. No Accord and Satisfaction. No payment by Tenant or
receipt by Landlord of a lesser amount than the Fixed Rent or Additional Rent
due hereunder shall be deemed to be other than a payment on account, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment be deemed to effect or
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evidence an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance or pursue
any other remedy in this Lease or at law or equity.
ARTICLE 5: TENANT'S SHARE OF OPERATING COSTS
Section 5.1. Definitions. As used in this Lease:
(a) "Real Estate Taxes" shall mean the total amount of all taxes,
charges and assessments levied or assessed against the Building, including,
without limitation, real property taxes, assessments, water taxes and
assessments, sewer rentals, rates, taxes and charges, and any other governmental
or quasi-governmental charges, general, special, ordinary or extraordinary,
foreseen or unforeseen, of any kind and nature whatsoever which may at any time
prior to or during the Term become due and payable, or be levied, assessed or
imposed by any authority having power to do so, on, against or with respect to
the Building and any appurtenance thereof, but excluding, however, any income,
franchise, transfer, inheritance and capital stock taxes of Landlord and
excluding any taxes paid by Tenant, or any other tenant's of the Building, under
the terms of Section 6.1 (Tenant's Property) hereof or under the terms of
similar provisions of other leases of space in the Project. The said exclusions
notwithstanding, Real Estate Taxes shall include any tax, charge, or other
imposition levied by the State of Connecticut or political subdivision thereof
against Landlord's interest in this Lease or Rent (whether gross or net) derived
from this Lease, and shall also include any other tax, fee or other excise,
however described, that may be levied or assessed as a substitute for, or as an
addition to, in whole or in part, any other Real Estate Taxes, whether or not
now customary or in the contemplation of the parties hereto as of the date of
this Lease.
(b) (1) "Operating Expenses" shall mean all costs and expenses in
connection with the operation, maintenance, repair and replacement (whether
structural or nonstructural, and whether capital or non-capital in nature, but
subject to the limitations expressly stated hereinbelow) of any and all parts of
the Project, as Class-A office buildings, and the improvements thereon and
therein, including, without limitation, the following: all materials, supplies
and equipment, purchased or hired therefor; service contracts for any of the
foregoing (including, without limitation, elevator, electric, heating,
air-conditioning and plumbing); maintenance and repair of grounds; maintenance
and repairs in and to Project and Building systems including, without
limitation, the heating and ventilating and air-conditioning systems;
maintenance and repair of underground pipes, lines, equipment and systems;
repaving; resurfacing; painting (including line-painting) of all roofs,
rooftops, and all parts thereof, whether decorative or otherwise; lighting;
removal of snow, ice, trash, garbage and other refuse; fuel, including, without
limitation, oil or gas used in connection with heating the Project; electricity
used in
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connection with the Project (other than in the Demised Premises or other
portions leased to tenants) including, without limitation, that used in
air-conditioning, ventilating and heating and for any interior and exterior
Common Area; water; telephone and other utilities; cleaning and sanitary
services; window cleaning services; refurbishing; extermination; the cost of
personnel engaged in the operation, maintenance or repair of the Project
(including, without limitation, salaries, wages, medical, surgical and general
welfare benefits, group insurance, savings and retirement benefits, payroll
taxes, worker's compensation insurance, disability insurance and all taxes,
charges and assessments levied or assessed against any personal property of
Landlord used in the operation of the Building or the Project; the operation,
maintenance and repair of the custodian's office (which "custodian" as used
herein shall mean a person who devotes all of or a portion of his working time
to the maintenance and/or operation of all or a portion of the Project)); the
custodian's telephone charges pertaining to the operation of the Project, the
custodian's utilities, and all other fringe benefits; fire protection;
alterations and improvements made by reason of laws or requirements of any
governmental or quasi-governmental authority, insurance body or Landlord's
insurer or mortgagee; all insurance carried by Landlord applicable to the
Project (including, without limitation, primary and excess liability, and
further including vehicle insurance, fire and extended coverage, vandalism and
all broad-form coverage including, without limitation, riot, strike, and war
risk insurance, flood insurance, boiler insurance, plate glass insurance, rent
insurance and sign insurance); management fees and the costs of operation,
maintenance and repair of a property management office, legal (other than those
for preparation of this and other leases) and accounting fees, commissions and
charges; damages and other losses; taxes (including, without limitation, sales
and use taxes); energy; security systems, security personnel, traffic systems,
and traffic personnel; at Landlord's option, the Annualized Amortization Amount
specified in Section 5.1 (b) (2) herein; any other costs and expenses,
consistent with the operation of Class-A office buildings, in connection with
the operation, maintenance and repair of the Project; a pro rata portion of any
costs and expenses in connection with the operation, maintenance, repair and
drainage of any part of those roads, walks, and other areas forming a part of
the Project or used in connection with the Project and whether dedicated to any
municipal authority or used in common with others (sometimes collectively called
"Roadway Common Areas"), it being understood that said proration shall be based
upon the respective number of rentable square feet of the Project.
The following shall, nonetheless, be excluded from Operating
Expenses:
(i) any expense to the extent to which Landlord is compensated by
insurance or by any manufacturer's warranty;
(ii) Real Estate Taxes and Real Estate Taxes (defined similarly) for the
Project;
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(iii) any executive salary above the grade of superintendent or Building
or Project manager;
(iv) costs of leasehold improvements made by Landlord in the Demised
Premises or in other space in the Project leased to Tenant or other tenants;
(v) any particular charge or expense (rather than a category of charge or
expense) which is specifically payable by Tenant or another tenant in the
Project;
(vi) brokerage commissions;
(vii) mortgage principal and interest and financing charges which are
secured by a mortgage or other encumbrance against the title to the Project;
(viii) depreciation and amortization of Landlord's initial acquisition and
construction costs for the Project and Landlord's initial acquisition and
construction costs for any future capital additions of leaseable space to the
Project which expand the external footprint of the Project;
(ix) Legal fees of Landlord incurred in connection with the leasing of
space in the Project, or incurred in connection with any disputes with tenants
or other occupants of space in the Project, or in connection with the
enforcement of any leases of space in the Project, or incurred in connection
with refinancing indebtedness secured by the Project or incurred in connection
with the sale of the Landlord's fee simple interest in the Project;
(x) advertising and marketing expenses incurred in connection with leasing
space in the Project which exceed the sum of $100,000 in any given Computation
Year;
(xi) costs (including permit, license and inspection fees) incurred in
renovating or otherwise improving, decorating, painting or altering demised
space (other than Common Areas, Roadway Common Areas and parking areas) for the
exclusive use of less than all of the tenants or occupants of the Project;
(xii) interest and penalties payable to the City of Stamford by reason of
Landlord's failure to make timely payment of Real Estate Taxes, unless Landlord
is contesting such Real Estate Taxes, interest or penalties;
(xiii) property management fees paid to affiliates of Landlord, but only
to the extent such fees are in excess of competitive market rates paid to other
property managers of Class-A office buildings;
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(xiv) costs in excess of $100,000 in any single Computation Year incurred
to remediate, contain or abate any single spill or release of Hazardous
Substances, from the Property, unless the presence of such spill or release of
Hazardous Substances on the Property is due to the actions or omissions of the
Tenant or any other Project tenants, or their respective employees, agents,
invitees or contractors;
(xv) costs in excess of $100,000 incurred in any single Computation Year
to cause any single item (e.g. any single bathroom, ramp, hallway, doorway,
etc.) at the Project to comply with the Americans with Disabilities Act, 42
U.S.C. 12101 et seq.; and
(xvi) costs in excess of $100,000 incurred in any single Computation Year
to remedy any single, or particular violation of the building codes or the fire
codes of the City of Stamford, but such costs shall only be excluded from
Operating Expenses if such violation (1) was in existence as of the date of this
Lease, (2) pertains to a Common Area or Parking Area of the Building, or to an
existing base Building system located in unimproved "shell" space in the
Building which "shell" space was not previously and is not currently leased to a
tenant but is intended for lease, and (3) Landlord had received written notice
of such violation from the City of Stamford prior to the date of this Lease.
Costs to cure violations of building codes or fire codes which Landlord has not
received written notice of prior to the date of this Lease, or which arise or
occur after the date of this Lease, shall not be excluded from Operating
Expenses by virtue of this subparagraph (xvi).
(2) Amortization of Certain Capital Items. In the event any
particular or single structural or capital repairs, replacements or restorations
to the Project, or any part thereof, shall cost more than the sum of One Hundred
Thousand Dollars ($100,000) and may properly be capitalized in accordance with a
tax depreciation schedule, as opposed to being fully deducted in the year such
costs were incurred, then Landlord shall only include in Operating Expenses for
any given Computation Year (A) that portion of the cost of such particular or
single structural or capital repair, replacement or restoration which is equal
to the total cost of such single or particular structural or capital repair,
replacement or restoration divided by the number of years such cost may be
depreciated in accordance with the appropriate tax-depreciation schedule, and
(B) interest at the Base Rate plus three (3) percent on the remaining balance of
such cost. Notwithstanding the foregoing, Landlord may include in Operating
Expenses the full cost of any items of a decorative nature in the Computation
Year Landlord incurs such costs. Amounts which are includable in Operating
Expenses on an amortized basis pursuant to this Section 5.1 (b) (2) are herein
collectively referred to as the "Annualized Amortization Amount")
(3) If a cost or expense may permissibly be included under more than
one category of Operating Expenses, such cost or expense shall be included only
once where to do so more than once would cause a duplication of, and a similar
increase in, Operating Expenses. Notwithstanding various provisions of this
Lease which provide that
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Landlord shall do or perform certain obligations or services at Landlord's cost
and/or expense, the same shall be included in Operating Expenses to the extent
that they otherwise would be includable pursuant to this Section 5.1(b); and
this shall be so notwithstanding that in certain instances throughout this Lease
there is specification that a certain expense shall be an Operating Expense,
while in other instances there is no such specification.
(c) "Base Expenses" shall mean the Operating Expenses incurred in
the Base Year.
(d) "Base Taxes" shall mean the Real Estate Taxes (determined after
the resolution of any appeals) which are payable with respect to the Base Year.
(e) "Computation Year" shall mean each July 1 fiscal year during the
Term.
(f) "Total Costs" shall mean Operating Expenses and Real Estate
Taxes.
(g) "Base Year" shall mean the year so designated in Article 1.
Section 5.2. Tenant's Share of Total Costs. Tenant shall pay to
Landlord Tenant's Operating Share of Operating Expenses and Tenant's Tax Share
of Real Estate Taxes (collectively, "Tenant's Share of Total Costs") at the
times and in the manner provided below. Sums payable under this Section 5.2 may,
from time to time, be hereafter referred to as "5.2 Rent".
(a) Tenant's Share of Total Costs for any Computation Year shall be
the sum of (i) the product of Tenant's Operating Share and the amount by which
the Operating Expenses for that Computation Year exceed the Base Expenses, and
(ii) the product of Tenant's Tax Share and the amount by which the Real Estate
Taxes for that Computation Year exceed the Base Taxes.
(b) At the beginning of each Computation Year, Landlord shall
compute and deliver to Tenant a reasonable estimate of the amount to be paid by
Tenant as Tenant's Share of Total Costs for the appropriate Computation Year,
and without further notice Tenant shall pay to Landlord, simultaneously with
Tenant's Monthly Fixed Rent during such Computation Year, monthly installments
of one-twelfth (1/12) of such estimate (plus, if such estimate is submitted
after the commencement of any Lease Year, one-twelfth (1/12) of such sum times
the number of months, or partial months, which have elapsed since such
commencement). Landlord and Tenant agree that Landlord may estimate Tenant's
Share of Total Costs for any Computation Year by doubling its budget for the
first six (6) calendar months of the Computation Year in question. Landlord's
failure to render an estimate with respect to increases in Total Costs for any
Computation Year shall not prejudice Landlord's right to render an estimate
thereafter with respect thereto or with
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respect to any subsequent Computation Year. Landlord may, in its discretion, but
no more than twice in any Computation Year, revise its estimate for any
Computation Year upon notice to Tenant, and Tenant shall, beginning ten (10)
days after notice of such revision, pay one-twelfth (1/12) of this revised
estimate in the manner provided above.
(c) Unless delayed by Force Majeure, Landlord shall deliver to
Tenant, within one year after the end of each Computation Year, a written
statement (the "Statement"), prepared in accordance with generally accepted
accounting principles, specifying the amount of Tenant's Share of Total Costs
and stating on a reasonably detailed line item basis, the total amount of Total
Costs for the prior Computation Year. If the aggregate of monthly installments
of Tenant's Share of Total Costs actually paid by Tenant to Landlord differs
from the amount of Tenant's Share of Total Costs payable according to the
Statement under this Section 5.2, Tenant shall pay the increase, without
interest, within ten (10) days after the date of delivery of the Statement or be
credited with a decrease, without interest, on the next installment(s) of Fixed
Rent and 5.2 Rent payable hereunder, as appropriate.
(d) (i) Tenant may not dispute the accuracy of any Statement,
unless:
(1) the particular line-item in dispute exceeds both (i) five
percent (5%) of total Operating Expenses for the Computation Year involved, and
(ii) an amount equal to the sum of $1.00 (to be increased annually by 5%) times
the total rentable square feet of the Project covered by all Tenant leases,
including the 680 Lease and this Lease (herein referred to as an "Eligible
Disputed Item"), and
(2) Tenant provides Landlord with written notice of such Eligible
Disputed Item within thirty (30) days of Tenant's receipt of such Statement.
(ii) If Landlord and Tenant disagree on the accuracy of an Eligible
Disputed Item as set forth in the Statement, Tenant shall nevertheless make
payment to Landlord, in full, in accordance with the Statement. Landlord and
Tenant shall then attempt to mutually resolve any disagreement with respect to
an Eligible Disputed Item. Tenant shall have no right to review Landlord's books
and records pertaining to Operating Expenses except with respect to an Eligible
Disputed Item. Tenant may only review Landlord's books and records with respect
to an Eligible Disputed Item within thirty (30) days of Tenant's receipt of the
Statement. Tenant's review of Landlord's books and records relative to an
Eligible Disputed Item shall be conducted at Landlord's offices, during
Landlord's Normal Business Hours, and at a time which shall be reasonably
acceptable to Landlord. Any such inspection of Landlord's books and records may
be conducted only by Tenant's employees, or by a nationally-recognized certified
public accounting firm (which is not paid by Tenant on a contingency fee basis)
and after Tenant's execution of a confidentiality agreement in a form reasonably
designated by Landlord.
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(iii) Landlord and Tenant shall attempt to mutually resolve such any
disagreement with respect to the accuracy of an Eligible Disputed Item within
thirty (30) days from Landlord's receipt of Tenant's notice of such
disagreement. If the parties are unable to resolve such disagreement regarding
an Eligible Disputed Item within such period of time, the disagreement regarding
the Eligible Disputed Item shall then be referred by Landlord for prompt
decision by a mutually acceptable "Big Six" certified public accounting firm,
which shall be deemed to be acting as expert and not as an arbitrator, and a
determination signed by the selected "Big Six" certified public accounting firm
shall be final and binding on both Landlord and Tenant.
(iv) No adjustment shall be made to any previous payment made by
Tenant reason of any expert's decision regarding an Eligible Disputed Item
unless such expert shall determine that Landlord's Statement has overstated
Operating Expenses for the subject year by more than Ten Percent (10%). Any
adjustment required to be made by reason of any overstatement of Operating
Expenses by more than Ten Percent (10%) shall be made, without interest, within
thirty (30) days after the date of such expert's decision regarding an Eligible
Disputed Item. Regardless of the decision of such expert, Tenant shall be solely
responsible for paying all costs charged by such "Big Six" certified public
accounting firm in connection with the resolution of any such dispute. Tenant
shall maintain all information obtained from reviewing Landlord's books and
records in strict confidence and shall not disclose the same to any party other
than Landlord's attorneys and agents who shall be directly involved with
assisting Tenant in the resolution of a dispute hereunder and who shall be
instructed by Tenant, in writing, to respect and maintain the confidentiality of
such financial information.
(e) Tenant may not dispute the Statement or claim a readjustment in
respect of Tenant's Share of the Operating Costs, except as expressly provided
in (d) above.
(f) In the event that, in the Base Year or any Computation Year, the
tenant space of the Project is not ninety-five percent (95%) or more occupied,
an appropriate adjustment shall be made so that Tenant's Share of Operating
Expenses and Real Estate Taxes shall be computed as though the tenant space of
the Project had been ninety-five percent (95%) occupied for the Base Year or
such Computation Year. In no event shall Landlord be able to finally collect
more than one hundred percent (100%) of the actual Total Costs.
Section 5.3. Change to Fiscal Year. Notwithstanding anything to the
contrary contained in this Article 5, Landlord, at Landlord's option, may, at
any time and from time to time, calculate applicable sums under Section 5.1(b)
of this Lease on a fiscal year basis rather than on a calendar year basis, but
adjusted such that Tenant shall not be
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subject to duplicate charges. In such event, if less than a full fiscal year is
involved, appropriate adjustment and prorations shall be made to reflect such
partial fiscal year.
Section 5.4. Changes in Tenant's Share of Total Costs. Tenant's
Operating Share and Tenant's Tax Share specified in Article 1 are based upon a
fraction, the numerator of which is the Rentable Area of the Demised Premises,
the denominator of which is the rentable area of the Project and of the Building
respectively. If the Rentable Area of the Demised Premises should change (e.g.
by Tenant leasing additional space in the Project) and/or if the rentable area
of the Project or the Building should change, then Tenant's Operating Share
and/or Tenant's Tax Share and/or Total Costs for the Base Year shall be
recalculated equitably. Unless Tenant should lease additional space, Landlord
shall not recalculate the Rentable Area of the Demised Premises under this
Section 5.4 unless Landlord also recalculates the Rentable Area of any other
part of the Building.
ARTICLE 6: TAXES ON TENANT'S PROPERTY
Section 6.1. Tenant's Property. In addition to the Fixed Rent and
other charges to be paid by Tenant hereunder, Tenant shall pay Landlord upon
demand, as Additional Rent, or where applicable directly to the taxing authority
when due, for its share of any and all taxes payable by Landlord (other than net
income taxes) whether or not now customary or within the contemplation of the
parties hereto: (a) upon, allocable to, or measured by the Rent payable
hereunder, including, without limitation, any gross receipts tax or excise tax
levied by any governmental or taxing body with respect to the receipt of such
Rent; (b) upon or with respect to the possession, leasing, operation,
management, maintenance, alteration (subsequent to the construction of the
initial Tenant's Work, undertaken by Tenant, to ready the Demised Premises for
Tenant's initial occupancy thereof), repair, use or occupancy by Tenant of all
or any part of the Demised Premises; and (c) upon (i) the measured value of
Tenant's personal property located in the Demised Premises or in any storeroom,
garage or any other place in the Demised Premises or the Project, and (ii) any
and all fixtures and/or improvements in or to the Demised Premises which are
owned by Tenant and/or constructed, installed and/or paid for by Tenant,
subsequent to the construction of the initial Tenant's Work, undertaken by
Tenant, to ready the Demised Premises for Tenant's initial occupancy thereof, it
being the intention of Landlord and Tenant that, to the extent possible, any
such taxes (real, personal or otherwise) shall be billed to and paid directly by
Tenant. Tenant shall pay all such taxes coming due after the expiration of the
Term which are attributable to a portion of the Term. No taxes required to be
paid by Tenant under this Section 6.1 shall be included in Real Estate Taxes or
Operating Expenses, as such terms are defined in Section 5.1 herein.
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ARTICLE 7: CONDITION OF DEMISED PREMISES
Section 7.1. Condition of Demised Premises. Tenant acknowledges that
it has inspected the Demised Premises and, except as may be otherwise expressly
provided in Section 7.2 (Landlord's Representations) below, accepts the Demised
Premises, including all unfinished and incomplete tenant improvements, in its
"AS IS" condition. Tenant acknowledges that Landlord shall have no obligation to
complete any unfinished or incomplete tenant improvements in the Demised
Premises and that no certificate of occupancy exists for the incomplete tenant
improvements in the Demised Premises. Tenant relies on no warranties or
representations, express or implied, of Landlord or any agent or other party
associated with Landlord as to the nature, condition or repair of the Demised
Premises or the Project, except as may be otherwise expressly provided in this
Lease.
Section 7.2. Landlord's Representations. The Landlord represents to
Tenant, to the best of Landlord's knowledge and belief, as of the date of the
execution of this Lease, as follows:
(a) Tenant shall have no obligation or liability under this Lease by
reason of the presence in the Demised Premises or upon the Common Areas of the
Project, as of the date of this Lease, of any Hazardous Substances in any
quantity which violates Environmental Law, unless due, in whole or in part, to
the actions or omissions of Tenant, or Tenant's employees, agents, contractors
or invitees. Landlord shall and hereby agrees to indemnify and hold Tenant
harmless from and against any and all loss, damages, cost, claim, liability or
expense (including without limitation, reasonable attorneys fees and court
costs) arising out of any liability which Tenant may incur within the scope of
the first sentence of this subparagraph (a). Notwithstanding the foregoing,
Tenant shall indemnify and hold Landlord harmless from and against any and all
loss, damages, cost, claim, liability or expense (including without limitation,
reasonable attorneys fees and court costs) which Landlord may incur by reason of
the presence of any Hazardous Substances, or by reason of the presence of any
materials deemed to be Hazardous Substances subsequent to the date of this
Lease, which Tenant, or Tenant's employees, agents, contractors or invitees may
introduce or permit to be introduced onto the Demised Premises or the Project
from and after the date of this Lease.
(b) Landlord has not received any written notice from any
governmental authority or agency, which has not been substantially complied
with, or contested in good faith, as of the date of this Lease, directing
Landlord to remediate, abate or control any "substantial" spill or release of
Hazardous Substances at the common areas at the Project (e.g. a "substantial"
spill or release is a spill or release of Hazardous Substances which will cost
in excess of $100,000 to remediate, abate or control, in accordance with
Environmental Laws).
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(c) Landlord has not received any written notice from any
governmental authority or agency, which has not been substantially complied
with, or contested in good faith, as of the date of this Lease, advising
Landlord that the Common Areas of the Project are not "substantially" in
compliance with the Americans with Disabilities Act, 42 U.S.C. 12101 et seq.
(e.g. that the cost to cure or remedy such non-compliance with respect to any
single item (e.g. any single bathroom, ramp, hallway, doorway, etc.) will cost
more than the sum of $100,000).
(d) Landlord has not received any written notice from the City of
Stamford, which has not been substantially complied with, or contested in good
faith, as of the date of this Lease, claiming that the Common Areas of the
Project are not in "substantially" in compliance with the building and fire
codes of the City of Stamford (e.g. that the cost to cure any single instance or
aspect of non-compliance with local building or fire codes will cost more than
the sum of $100,000).
(e) Landlord has not received any written notice from People's Bank,
which has not been substantially complied with, or contested in good faith, as
of the date of this Lease, stating that the Landlord is in monetary default
under the Superior Mortgage beyond the expiration of all applicable notice and
cure periods.
In the event it should ever be determined that Landlord has breached any
of the representations made by Landlord in Section 7.2 (b), (c), (d) or (e),
then, as Tenant's sole remedy by reason of such breach, Tenant shall be relieved
of any obligation to pay for any portion of the cost of complying with any
governmental or lender notice Landlord may have received contrary to the
representations made in this Section 7.2, and the costs of complying with any
such governmental order or lender notice shall not be included in Operating
Expenses hereunder.
ARTICLE 8: USE OF DEMISED PREMISES
Section 8.1. Use of Demised Premises. Tenant shall use the Demised
Premises only for the purposes set forth in Article 1 and for no other use or
purpose whatsoever.
Section 8.2. Compliance with Laws and Requirements of Public
Authorities.
(a) Tenant shall not at any time use the Demised Premises or cause
or permit anything to be done in or about the Demised Premises which results in
the committing of waste or which interferes with the other tenants or occupants
permitted
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usage of the Project, and Tenant, at its sole cost and expense, shall comply
with all Applicable Laws, all Environmental Laws, including any amendments
thereto and similar laws enacted after the date of this Lease, now in force or
which may be enacted or promulgated in the future and shall comply, at its
expense, with all orders, rules and regulations of the Connecticut Board of Fire
Underwriters or any similar body which shall impose any violation, order or duty
upon Landlord or Tenant with respect to the Tenant's use of the Demised Premises
and Tenant shall comply, at its expense, with all provisions of the Americans
with Disabilities Act (42 U.S.C. Section 12,101) et seq., applicable to the
Tenant's use of the Demised Premises, or required by reason of any Tenant Work
or subsequent alterations to the Demised Premises constructed by or for Tenant.
(b) Tenant shall not keep, use, sell or offer for sale in or upon
the Demised Premises any article which may be prohibited by the then available
customary forms of fire, boiler and/or casualty insurance policies with extended
coverage or other insurance required to be furnished by Landlord under the terms
of any lease, mortgage or deed of trust to which this Lease is or may hereafter
become subordinate, or use or occupy the Demised Premises in any way that causes
an increase in the premiums charged during the Term for the insurance carried by
Landlord on the Demised Premises, the Building and/or the Project, above the
rate which would apply for typical executive and general office use. Tenant
agrees to pay, as Additional Rent, any such increase resulting from an atypical
use or manner of business conducted by Tenant in the Demised Premises, whether
or not Landlord has consented to that business or manner of use. In determining
whether increased premiums are the result of Tenant's atypical use of the
Demised Premises, a schedule issued by the organization setting forth the
increased insurance rate and showing the various components of such rate shall
be conclusive evidence thereof.
(c) Tenant's use of the Demised Premises for the purposes specified
in Article 1 hereof shall not in any event be deemed to include, and Tenant
shall not use, or permit the use of, the Demised Premises or any part thereof
for:
(i) sale of, or traffic in, serving or consumption of any alcoholic
beverages, provided, however, that the foregoing restriction shall not prevent
Tenant from serving wine or other alcoholic beverages at the Demised Premises to
customers and employees of Tenant, providing (A) Tenant may not sell wine or
other alcoholic beverages to customers, employees, members of the general public
or otherwise, (B) prior to serving any wine or other alcoholic beverages to its
employees or customers, Tenant obtains any and all permits and approvals as may
be required by municipal and state laws, statutes, rules, codes and regulations
and Tenant otherwise complies with all applicable statutes, laws, rules and
regulations and with the directives of any governmental authority in connection
with the serving of wine or other alcoholic beverages in, on or about the
Demised Premises, (C) prior to serving wine or other alcoholic beverages, Tenant
complies with its obligation to procure host liquor liability as set forth in
Section 11.1 (a) (1) herein, and (D)
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Tenant's indemnification obligations under Section 11.2 (b) of this Lease shall
apply to any damage or injury resulting from, or liability incurred by Landlord
arising out of, Tenant serving wine or other alcoholic beverages in, on or about
the Demised Premises;
(ii) sale at retail or otherwise of products or materials kept in
the Demised Premises, by vending machines or otherwise, or demonstrations to the
public, except as may be specifically agreed to by Landlord in writing;
(iii) manufacturing, printing or electronic data processing, except
for the operation of normal business office reproduction and printing equipment,
business machines and electronic data processing equipment incidental to the
conduct of Tenant's business and for Tenant's own requirements at the Demised
Premises, provided that such use shall not exceed that portion of the mechanical
or electrical capabilities of the Building equipment allocable to the Demised
Premises;
(iv) the rendition of medical, dental or other diagnostic or
therapeutic services;
(v) the conduct of a public auction or assembly of any kind;
(vi) the receipt of money for transmission (except as is
incidentally required in the conduct of Tenant's normal business activity);
(vii) the sale of tobacco, newspapers, magazines, beverages, food or
similar items, or the preparation, dispensing or consumption of food or
beverages in any manner whatsoever, other than the consumption of the foregoing
by Tenant's employees and by customers of Tenant at receptions held on an
occasional basis for Tenant's customers; or
(viii) an employment or recruitment agency, school, college,
university or educational institution, whether or not for profit, union,
charitable or other not for profit entity, or by any government or subdivision
or agency of any government, or for any purpose which is likely to generate more
visitor traffic then would typical executive and general office use.
(d) If any governmental or quasi-governmental license or permit
shall be required for the proper and lawful conduct of Tenant's business in the
Demised Premises, or any part thereof (including, without limitation, the
Certificate of Occupancy for the Demised Premises) and if the failure to secure
such license or permit would in any way affect Landlord, then Tenant, at its
expense, shall duly procure and thereafter maintain such license or permit, but
in no event shall failure to procure and maintain same by Tenant affect Tenant's
obligations hereunder. Tenant shall not at any time use or occupy, or suffer or
permit anyone to use or occupy the Demised Premises, or do or permit anything to
be
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done in or about the Demised Premises, in violation of the Certificate of
Occupancy for the Demised Premises or the Certificate of Occupancy for the
Building.
Section 8.3. Use of Common Area. Tenant's use of all or part of (a)
any Common Area, or (b) any other portion of the Project which is not part of
the Demised Premises (the "Other Areas"), shall be subject to the provisions of
Section 8.2, this Section 8.3, Sections 22.3 and 22.4, and any other applicable
provisions of the Lease. Tenant's use of all or part of any Common Area or Other
Areas to the exclusion of other tenants of the Project is prohibited.
ARTICLE 9: REPAIRS, ALTERATIONS AND MAINTENANCE
Section 9.1. Care of Premises. Subject to the Landlord's repair
obligations set forth in Section 9.3 (Landlord's Repairs) below, and subject to
the services to be provided by Landlord as set forth in Exhibit E hereto,
Tenant, at its expense, shall take good care of the Demised Premises, including
all Building equipment, Improvements and systems, partitions, carpets, drapes,
ceilings, lights, doors and other interior finish items therein. Tenant shall
repair and maintain all such items as necessary to preserve them in good order,
condition and appearance.
Section 9.2. Tenant's Repairs. Tenant shall, at its sole cost and
expense, make and be responsible for:
(a) all maintenance, repairs and replacements, as and when needed,
to preserve the Demised Premises (including, without limitation, Tenant's
property and fixtures, any bathrooms, showers, bathroom and shower plumbing,
appliances and fixtures located on or in any bathroom or shower facilities
located within the Demised Premises and all plumbing, electrical lines and
facilities and air intake and exhaust systems constructed or installed in the
Demised Premises by or for Tenant after the date of this Lease and, subject to
the terms of Section 9.3 (Landlord's Repairs) below, all heating, HVAC and
heat-pump systems constructed or installed in the Demised Premises by or for
Tenant after the date of this Lease) in good order, condition and repair; and
(b) except to the extent to which Landlord is compensated or
reimbursed from any insurance maintained by Landlord with respect to the
Building, the maintenance, repair and replacement of the Building equipment,
systems and structural aspects, the need for which arises out of or results from
(i) the performance or existence of any alteration or modification to the
Demised Premises made by Tenant, (ii) the installation, use, or operation of
Tenant's property or fixtures, (iii) the moving of Tenant's property or fixtures
in or out of the Building or in and about the Demised Premises, or (iv) any
acts, omissions, negligence or misuse by Tenant, those holding under Tenant or
Tenant's servants,
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employees, agents, contractors, invitees, or licensees, or their use or
occupancy or manner of use or occupancy of the Demised Premises. All repairs
shall conform to the provisions of Section 9.4 and shall be at least equal in
quality and class to the standards then applicable for the Building as
established by Landlord. If Tenant fails, after five (5) days' prior notice from
Landlord, to proceed with due diligence to make repairs required to be made by
Tenant (except in the event of an emergency, wherein Landlord may proceed to
make any such repair immediately if Tenant does not immediately proceed to
repair), the same may be made by Landlord at the expense of Tenant, and the
expenses of repairs incurred by Landlord, together with a fifteen percent (15%)
administrative fee, shall be reimbursed immediately as Additional Rent after
submission to Tenant of a bill or statement for the repairs.
Section 9.3. Landlord's Repairs. Landlord shall make all necessary
repairs, to keep the common areas of the Project and the base Building equipment
and systems, in good order and repair, consistent with standard for Class-A
office buildings, excluding, however, all repairs which Tenant is obligated to
make pursuant to Section 9.2 and those required to be made by other tenants of
the Project. Tenant shall give Landlord prompt notice of any defective condition
known to Tenant in the Project or, in particular, in any base Building plumbing,
heating system or electrical lines located in, servicing, or passing through the
Demised Premises. Following such notice, Landlord shall remedy the condition
with reasonable diligence, subject to Force Majeure, but at the expense of
Tenant if repairs are necessitated by any of the conditions described in Section
9.2(b). Following Landlord's receipt of notice from Tenant requesting that
Landlord do so, Landlord shall, with reasonable diligence, repair, at Landlord's
expense, any HVAC and heat-pump systems which were located in the Demised
Premises prior to the date of the Lease, and Landlord shall repair, at Tenant's
sole cost and expense (subject to Tenant's payment of Landlord's fee under
paragraph 8 (n) of Exhibit B hereto and inclusive of Landlord's administrative
fee), any HVAC and/or heat-pump systems which (i) were existing in the Demised
Premises prior to the date of this Lease but were subsequently relocated by or
for Tenant, or for which the capacity was increased, by or for Tenant after the
date of this Lease, or (ii) were installed in the Demised Premises by or for
Tenant after the date of this Lease.
Except as otherwise specifically provided in this Lease, there shall
be no allowance to Tenant for a diminution of rental value and no liability on
the part of Landlord by reason of inconvenience, annoyance, interruption or
injury to business arising from Landlord, Tenant or others making any repairs,
alterations, additions or improvements in or to any portion of the Building, the
Demised Premises or the Project. Subject to Tenant's obligations contained in
this Lease, Landlord agrees to maintain the Building and the Project in a manner
consistent with the standards for Class-A office buildings in the Stamford,
Connecticut market. Notwithstanding anything to the contrary contained
hereinabove, Landlord shall undertake to complete any repairs required to be
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made by Landlord in a manner reasonably designed to minimize interference with
the conduct of Tenant's business in the Demised Premises, provided, however,
that Landlord shall have no obligation to undertake such repairs outside of
Tenant's normal business hours unless Tenant first agrees to pay any overtime
expenses incurred thereby.
Section 9.4. Tenant's Alterations.
(a) (i) Provided Tenant has secured the prior written consent of
Landlord in each instance, which consent shall not be unreasonably withheld or
delayed so long as they do not affect the Building systems or structure, Common
Areas, Project exterior and may not be seen from outside of the Demised
Premises, and subject to the requirements of this Section 9.4 and Exhibits B and
Exhibits B-1 hereto, Tenant may, at Tenant's sole cost and expense, make
installations, alterations and other Improvements to the Demised Premises by
using contractors and subcontractors (if any) first approved by Landlord. It
shall be deemed reasonable for Landlord to withhold its approval of any
contractor or subcontractor with whom Landlord has had unfavorable business
dealings. All Improvements shall meet or exceed the standards specified in
Exhibit B-1 hereto. Tenant shall, at its sole cost and expense, obtain all plans
for such installations or alterations as well as all permits, approvals and
certificates required by any governmental or quasi-governmental bodies, both
before initiating and upon completing the installations and other alterations,
as applicable, and Tenant shall promptly deliver to Landlord duplicates of all
such plans, permits, approvals, and certificates. Tenant shall pay Landlord, as
Additional Rent, a fee reasonably established by Landlord, as well as Landlord's
attorneys' and consultants' fees for Landlord's review of such plans, permits,
approvals, certificates or other applicable documents in connection with said
installations or alterations and, where appropriate, Landlord's supervision of
the making thereof. Such fee shall be determined under paragraph 8 (n) of
Exhibit B hereto. Tenant agrees to carry and will cause Tenant's contractors and
subcontractors to carry such workmen's compensation, general liability, and
personal and property damage insurance as Landlord may require. Certificates
evidencing such insurance coverage shall be delivered to Landlord prior to
commencing any such installations or alterations.
(ii) Notwithstanding the foregoing, Tenant may make minor
alterations to the Demised Premises which cost, in the aggregate, less than
$25,000 in any Lease Year to construct and which do not require the issuance of
a building permit or certificate of occupancy and which do not affect the
Building systems or structure, Common Areas, Project exterior and may not be
seen from the outside of the Demised Premises (hereafter collectively, called
"minor alterations"), without obtaining Landlord's prior consent, using
contractors and subcontractors (if any) first approved by Landlord, provided
Tenant nonetheless undertakes such minor alterations in full compliance with the
provisions of this Section 9.4, the requirements of Exhibit B and the standards
of Exhibit B-1.
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(iii) Any increase in Real Estate Taxes or any other taxes or
insurance as a result of installations or other alterations by Tenant undertaken
subsequent to the initial Tenant's Work undertaken by Tenant to prepare the
Demised Premises for Tenant's initial occupancy shall be paid entirely by Tenant
when due.
(b) All Improvements shall, upon installation, become the property
of Landlord and shall remain upon and be surrendered with the Demised Premises,
except as provided in this Section 9.4. Notwithstanding the foregoing, Landlord
shall have the right, by notice to Tenant no later than twenty (20) days prior
to the end of the Term, to elect to have any Improvements and/or Tenant's Work
removed by Tenant, in which event Tenant shall remove the same and repair and
restore the Demised Premises prior to the end of the Term, at Tenant's sole cost
and expense. Notwithstanding the foregoing, in the event that, at the time
Tenant requests the Landlord's consent to any alterations or installations which
Tenant may propose to make to the Demised Premises, Tenant also specifically
requests in writing that Landlord also consent to the Tenant's non-removal of
such proposed alterations or installations from the Demised Premises at the
expiration or termination of this Lease, then in the event Landlord shall
consent to the making of such proposed alterations the Landlord shall also
indicate whether such alterations or installations (i) must be removed by Tenant
on or prior to the expiration or termination of this Lease, or (ii) may remain
upon the Demised Premises at the expiration or termination of this Lease. In the
event that at the time Landlord consents to the making of any proposed
alterations or installations the Landlord does not specifically consent to the
non-removal of such proposed alterations or installations upon the expiration or
termination of this Lease, then, in the event that not later than one hundred
eighty (180) days prior to the expiration or termination of this Lease the
Tenant requests in writing that Landlord consider waiving the requirement that
Tenant remove from the Demised Premises any specified alterations or Tenant's
Work, then Landlord shall respond to such written request from Tenant not later
than sixty (60) days prior to the expiration of the Lease term.
Notwithstanding anything to the contrary set forth herein, provided
Tenant completes the Tenant's Work in accordance with certain plans and
specifications prepared by CPG Architects for Citicorp North America, Inc.,
dated November 11, 1996, revised November 13, 1996 and further revised November
15, 1996 (the "CPG Plans"), without deviation therefrom, except for wall paint
colors and floor carpet colors and wall cover finishes, the Tenant shall not be
required to remove from the Demised Premises, upon the termination or expiration
of the Term of this Lease, any aspects of the Tenant's Work, except that (i)
Tenant shall be required to repair any core drilling which had been undertaken
pursuant to the CPG Plans, and (ii) at Landlord's option, which may be exercised
by written notice delivered to Tenant no later than twenty (20) days prior the
Expiration Date, Tenant shall remove all data, telephone and computer equipment
from the Demised Premises and repair any damage caused by the removal of same.
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(c) Nothing in this Section 9.4 shall be construed to give Landlord
title to or to prevent Tenant's removal of trade fixtures or movable office
furniture and equipment, but upon removal of any such equipment and fixtures
from the Demised Premises or upon removal of other installations as may be
required by Landlord, Tenant shall, immediately and at its sole cost and
expense, repair and restore the Demised Premises to the condition existing prior
to installation, reasonable wear and tear excepted, and Tenant shall repair any
damage to the Demised Premises, the Building or the Project due to such removal.
Section 9.5. Mechanics' and Other Liens. Tenant shall keep the title
to the Building and/or the Project free and clear of any lien or encumbrance in
respect of any work ordered by or on account of Tenant in the Demised Premises,
including the Tenant's Work, and any taxes (real, personal or otherwise) imposed
upon Tenant, or any other claim arising by, through or under Tenant. Tenant
shall indemnify, defend and hold Landlord harmless from and against any Loss (as
defined in Article 11 below), whether in respect of any lien or otherwise,
arising out of the supply of material, services or labor for such work. Tenant
shall immediately notify Landlord of any such lien, claim of lien, or other
action of which it has or reasonably should have knowledge of and which affects
the title to the Building or the Project, and shall fully bond, or at Landlord's
request, cause the same to be removed from the title to the Project, within
twenty (20) days, failing which Landlord may take such action as Landlord deems
necessary to remove or release the same, and the entire cost of removal or
release of such lien shall be immediately due and payable by Tenant to Landlord
as Additional Rent. Any liens which are discharged by bonding shall, immediately
upon final resolution of the dispute giving rise thereto, be removed of record
by Tenant at its sole cost and expense. The terms and provisions of this Section
9.5 shall survive the expiration or sooner termination of this Lease.
ARTICLE 10: UTILITIES AND BUILDING SERVICES
Section 10.1. Heating and Air-Conditioning.
(a) Subject to limitations and restrictions imposed by federal,
state and/or local authorities, and so long as Tenant is not in default under
this Lease, Landlord shall furnish Building-standard heating and
air-conditioning to the Demised Premises during Normal Business Hours. If Tenant
desires heating and/or air-conditioning during other than during Normal Business
Hours, Landlord, upon not less than 24 hours advance notice from Tenant, will
make arrangements therefore, but Tenant shall pay all costs thereof (including
an administrative fee therefore, payable by Landlord to its managing agent), as
Additional Rent. Such costs shall initially be Forty Dollars ($40.00) per hour
per floor, subject to change from time to time by Landlord to reflect any change
in costs therefor, plus Landlord's administrative fee.
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(b) Landlord, in no event, shall be responsible or liable to Tenant
for any failure of the air-conditioning systems adequately to cool and
dehumidify the Demised Premises where such failure results from (i) the
occupancy of the Demised Premises by more than an average of one (1) person for
each one hundred fifty (150) usable square feet of the Demised Premises, (ii)
Tenant installing operating machines, equipment and appliances the installed
electrical load of which when combined with the load of all lighting fixtures
exceeds five (5) watts per usable square foot of in the Demised Premises, (iii)
Tenant's rearranging its partitioning after Tenant's Work is complete, (iv)
Tenant's failure to lower and close window coverings when necessary because of
the sun's position whenever the air-conditioning system is in operation, or (v)
Tenant's failure to cooperate fully with Landlord and to abide by all the
regulations and requirements which Landlord may prescribe for the proper
functioning and protection of the said air-conditioning system. Wherever
heat-generated machines or equipment are used in the Demised Premises which
affect the temperature otherwise maintained by the air-conditioning system,
Landlord reserves the right to require Tenant, at Tenant's sole cost and
expense, to install and maintain supplemental air-conditioning units in the
Demised Premises, if Landlord should reasonably determine that the installation
of such supplemental air-conditioning units is necessary for the efficient
operation of base Building HVAC systems. The operation, repair and maintenance
of any such supplemental air-conditioning units installed in the Demised
Premises shall be done by Tenant at its sole cost and expense.
(c) Any air-conditioning units required for Tenant's computer
systems shall be installed by Tenant, subject to Landlord's prior written
consent, and at the sole cost and expense of Tenant, and shall become the
property of Landlord. Tenant shall, however, operate, repair and maintain such
units at Tenant's sole cost and expense.
Section 10.2. Water. Landlord shall furnish cold water from city
water mains for drinking, lavatory and toilet purposes drawn through fixtures
installed by Landlord, and hot water for lavatory purposes from regular Building
or Project supply. Tenant shall not waste water.
Section 10.3. Cleaning Service. (a) Landlord has furnished to Tenant
its current cleaning and janitorial specifications, a copy of which is attached
hereto as Exhibit E. Tenant shall not engage any other janitorial or cleaning
services.
(b) Tenant shall pay to Landlord on demand as Additional Rent the
costs incurred by Landlord for (x) cleaning work in the Demised Premises or the
Building or otherwise on or about the Building required because of (i) misuse or
neglect on the part of Tenant or its employees or visitors, (ii) use of portions
of the Demised Premises for preparation, serving or consumption of food or
beverages, reproducing operations, private lavatories or toilets or other
special purposes requiring greater or more difficult cleaning work than other
office areas, (iii) interior glass surfaces, (iv) non-building standard
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materials or finishes installed by Tenant, or at its request, or (v) increases
in frequency or scope in any of the items set forth in Exhibit E requested by
Tenant; or (y) removal from the Demised Premises and the Building of (i) so much
of any refuse and rubbish of Tenant as shall exceed that normally accumulated
daily in a typical executive and general office use, and (ii) all of the refuse
and rubbish of Tenant's machines and the refuse and rubbish of any other eating
facilities requiring special handling (known as "wet garbage"), or (z) any
recycling charges which Landlord may incur in disposing of Tenant's refuse,
including, but not limited to, Tenant's cardboard, corrugated containers,
bottles and cans and paper other than white computer paper). Landlord and its
cleaning contractor and their employees shall have after-hours access to the
Demised Premises and the use of Tenant's light, power and water in the Demised
Premises as may be reasonably required for the purpose of cleaning the Demised
Premises. Extraordinary waste (such as crates, cartons, boxes, etc., and used
furniture or equipment) shall be removed from the Building by Tenant at Tenant's
sole cost and expense. At no time shall Tenant place any waste of any kind in
any Common Area. If Tenant does so, the parties agree that everything so placed
shall be deemed abandoned and of no value to Tenant and Landlord may have the
same removed and disposed of at Tenant's sole cost and expense. Such cost and
expense shall be deemed Additional Rent.
(c) If Tenant requires any reasonable cleaning and/or janitorial
services in excess of those set forth in Exhibit E, Landlord shall arrange with
Landlord's contractor for the performance thereof at Tenant's sole cost and
expense. Landlord agrees that its contractor's charges for such supplementary
services shall be reasonably competitive with those of cleaning contractors in
the Stamford, Connecticut market.
Section 10.4. Elevators. During Normal Business Hours, five (5)
automatic passenger elevators shall generally be available for use by Tenant,
one (1) of which shall be available for freight use during such hours as
Landlord may establish. Tenant shall pay a fee, as may be established by
Landlord, for any extraordinary use of the freight elevator or any use thereof
outside of Normal Business Hours. One (1) of these passenger elevators shall be
available on an "on-call" basis at other times. No fee for freight elevator use
shall be charged to Tenant for (i) the construction of the initial Tenant's Work
to the Demised Premises, prior to the Commencement Date, to prepare the Demised
Premises for Tenant's initial occupancy thereof, or (ii) Tenant's initial move
into the Demised Premises on or about the Commencement Date; provided, however,
that Tenant shall pay Landlord a fee, determined pursuant to paragraph 8 (n) of
Exhibit B, to monitor Tenant's use of freight elevators during any period
outside of Landlord's normal business hours and if Landlord shall be required to
take any measures to protect elevators from damage.
Section 10.5. Security; Access. Tenant and its employees shall have
access to the Building 24 hours per day, 7 days per week; provided, however,
that Landlord may impose such security measures as Landlord may deem necessary
in connection with such
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access including, but not limited to, requiring any person seeking access
outside of Normal Business Hours to present a Building identification card
and/or to use a security access card. In no event shall Landlord be liable for
any good faith refusal by any security guard of a request of access to the
Building.
Section 10.6. Interruption of Services. Landlord does not warrant
that any service will be free from interruptions caused by repairs,
replacements, improvements, changes of service, alterations or Force Majeure. No
interruption of service shall be deemed an eviction or disturbance of Tenant's
use and possession of the Demised Premises, or render Landlord liable to Tenant
for damages, or relieve Tenant from performance of Tenant's obligations under
this Lease, or otherwise render Landlord liable in any manner whatsoever,
provided Landlord uses all reasonable diligence to restore any interrupted
service as promptly as possible. Any planned interruptions of electric service
to the Demised Premises shall, if feasible, be proceeded by reasonable prior
notice to Tenant of such interruption and shall be undertaken in a manner
reasonably designed to minimize any interference with Tenant's use of the
Demised Premises, provided, however, that, except to the extent Landlord would
have elected of its own accord to perform any such work or repairs outside of
Landlord's normal business hours and on an overtime basis, Landlord shall have
no obligation to undertake such work or repairs outside of Landlord's normal
business hours unless Tenant first agrees to pay any overtime expenses incurred
thereby. Tenant hereby waives and releases all claims against Landlord for
damages for interruption or stoppage of service.
Section 10.7. Electricity.
(a) Tenant agrees that its use of electric power shall at no time
exceed the capacity of existing feeders to the Building or its risers or wiring
installation, and Tenant shall not use any electrical equipment which, in the
reasonable judgment of Landlord, will overload such installations or interfere
with the use thereof by other tenants of the Building or the Project. Tenant
shall not, without Landlord's prior written consent in each instance, perform or
permit any alteration to wiring installations or other electrical facilities or
equipment in or upon the Demised Premises or the Project, or perform or permit
any additions to electrical fixtures, business machines, office equipment or
other appliances in the Demised Premises which utilize electricity. In no event
shall Tenant's total use of electricity in the Demised Premises exceed seven (7)
watts, connected load, per usable square foot thereof. Landlord represents that
the Demised Premises is supplied with not less than five (5) watts, connected
load, of electricity per usable square foot of space.
(b) In addition to any amount owed under Section 10.1 (Heating and
Air-Conditioning), subsection (a) thereof, Tenant shall pay Landlord, within ten
(10) days of Landlord's submission to Tenant of bills therefor, the cost of all
electricity used in the Demised Premises, in the annual amount of One Dollar and
Fifty Cents ($1.50) per
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rentable square foot of the Demised Premises, which amount shall be subject to
increase, from time to time, to reflect increases in the Landlord's cost of
furnishing such electricity to Tenant. Landlord shall bill Tenant for
electricity on a monthly basis during the Term of this Lease, provided Tenant
shall not be relieved of its obligation to pay electric charges hereunder by
reason of Landlord's failure to submit, or late submission of, a monthly
electric bill to Tenant.
(c) After the initial Tenant Work, Tenant, at Tenant's expense,
shall purchase and install all lamps (including incandescent and fluorescent),
starters and ballasts used in the Demised Premises. All such purchases shall be
from Landlord, unless Landlord elects otherwise. Prices for such items charged
to Tenant shall be at rates competitive with those charged by other Class-A
office buildings in the Stamford, Connecticut area. Tenant may only install
energy efficient items. Current standards for energy efficient items are set
forth in Exhibit B-l. Landlord reserves the right to revise the energy
efficiency standards, from time to time, set forth in Exhibit B. Such revised
energy efficiency standards shall only be applicable to any Tenant's Work which
Tenant may desire to undertake subsequent to the completion of the initial
Tenant's Work undertaken by Tenant to prepare the Demised Premises for Tenant's
initial occupancy.
Section 10.8. Adjustment for Utilities and Building Services.
Notwithstanding anything to the contrary contained herein, if Tenant uses,
consumes or requires any utilities or Building services provided for in this
Lease (including, without limitation, heating, air-conditioning, water, gas,
oil, janitor or cleaning services, refuse removal or security) in quantities or
levels which exceed the normal office usage of other office tenants in the
Project (of which fact Landlord shall reasonably judge), Landlord shall have the
right to charge Tenant for such excess usage of utilities or Building services
at amounts which are competitive with those being charged in other Class-A
office buildings as Landlord may establish from time to time, and Tenant shall
pay Landlord, as Additional Rent, the charges imposed therefor.
ARTICLE 11: INSURANCE AND INDEMNITY
Section 11.1. Insurance.
(a) Tenant shall, at its sole cost and expense, maintain throughout
the Term commencing with the earlier of (i) the performance of any work in the
Demised Premises by or on behalf of Tenant under Articles 3 and 9 hereof; and
(ii) the moving of any personal property of Tenant into the Demised Premises
(unless otherwise provided in this Section) the following types of insurance:
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(1) Insurance against any and all claims for personal injury
(including libel, slander, defamation of character, wrongful eviction, invasion
of a right of privacy, mental injury, humiliation) bodily injury and property
damage occurring in, upon, adjacent, or connected with the Demised Premises and
any part thereof. Such insurance shall be for limits not less than $5,000,000
per occurrence including umbrella liability and shall be written on a broad form
basis and shall include, without limitation, products and completed operations
liability, independent contractors liability, broad form property damage, liquor
law liability (if applicable), host liquor liability and not less than $300,000
per occurrence of fire damage legal liability insurance coverage.
(2) Comprehensive auto liability insurance covering owned, hired,
non-owned and borrowed vehicles, if any, providing bodily injury and property
damage liability in the amount of $5,000,000 combined single limit. An umbrella
liability policy can be used to satisfy policy limits.
(3) Worker's compensation and employer's liability as required by
law.
(4) Connecticut disability benefits liability as required by law.
(5) During the performance by or on behalf of Tenant of any Tenant's
Work, Tenant's Improvements or any other work under this Lease (including the
initial Tenant's Work to prepare the Demised Premises for Tenant's occupancy)
and until completion thereof, in an amount equal to the full replacement value
thereof. Such insurance shall be on an "all risk" basis. A builder's risk form
or its equivalent shall be delivered to Landlord prior to commencement of any
work.
(6) Insurance covering personal property, improvements and
betterments on an "All Risk" basis in the amount equal to the full replacement
cost of such property. "All-Risk" property insurance upon Tenant's property, the
Improvements, including contents and trade fixtures; such coverage is to be
written on a replacement cost basis and in an amount of not less than one
hundred percent (100%) of the replacement value thereof.
(7) If Tenant installs any supplemental air conditioning equipment
or electrical switch panels to service their data processing facilities,
coverage, including coverage for miscellaneous electrical apparatus in such
amounts as Landlord shall reasonably determine.
(8) Such other insurance and any of the insurance described in (1)
through (7) above in such amounts as Landlord or the holder of any superior
mortgage, deed of trust or lease may require from time to time or as are carried
with respect to properties similar to the Project.
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(b) With respect to all insurance provided by Tenant or others
performing work for Tenant hereunder:
(i) Such insurance shall be written by insurance companies licensed
to do business in the State of Connecticut, authorized to issue such insurance
policies and having a rating of no less than "A-XV" in the most current edition
of Best's Key Rating Guide (or its nearest equivalent, if it has ceased
publication). Appropriate certificates (together with evidence of waivers of
subrogation required by this Article) shall be deposited with Landlord prior to
the Commencement Date. Tenant shall have the right to insure and maintain such
insurance under blanket insurance policies covering other premises used or
operated by Tenant so long as such blanket policies are aggregated so that at
all times when required by this Lease there is adequate insurance attributable
to the Demised Premises or to this Lease so as to comply with the insurance
provisions set forth in this Lease.
(ii) Landlord, Stamford Towers, Inc. and the holder of any superior
mortgage or of any superior lease, to the extent that Tenant has been notified
(collectively called "Landlord and Others in Interest") shall be an additional
insured on all insurance required to be provided by Tenant under this Lease.
(iii) All property insurance policies shall cover the interest of
Tenant and Landlord and Others in Interest, as their interests may appear, and
shall provide that the adjustment of any losses thereunder or any related
negotiations not be settled or finalized (or any resulting awards or recoveries
be payable) without the direct involvement and consent of Landlord and Others in
Interest, to the extent applicable, and shall contain a provision allowing other
insurance that is provided to or for Landlord.
(iv) Notwithstanding anything to the contrary contained in this
Lease, at least thirty (30) days prior to commencement of any construction in
the Demised Premises, Tenant and Tenant's contractor shall deliver to Landlord
(and Others in Interest, if required by them) certificates of insurance or
policies (as provided in Section 11.1(b)(i) hereof) evidencing all insurance
coverage provided in this Article 11. Tenant's contractor shall be required to
comply with all of such insurance obligations through final completion of all
such work.
(v) If Tenant performs any work in or to the Demised Premises Tenant
or Tenant's general contractor shall, in accordance with all of the insurance
requirements of this Article 11, obtain professional liability insurance for all
architects, designers and engineers with regard to all of their work in or in
connection with the Demised Premises, in a minimum policy amount of One Million
Dollars ($1,000,000.00) or the then customary amount for comparable work, if
higher.
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(vi) The limits of all insurance provided under this Lease shall not
limit Tenant's liability to Landlord.
(vii) All policies of insurance maintained by Tenant under this
Article shall be written as primary policies not contributing with, nor in
excess of, insurance coverage that Landlord and Others in Interest may have.
Tenant shall not carry separate or additional insurance which, in the event of
any loss or damage, is concurrent in form or would contribute with the insurance
required to be maintained by Tenant under this Lease.
(viii) Each policy required to be provided hereunder (and each
certificate of insurance issued with respect thereto) shall contain endorsements
by the insurer, without disclaimers, that the policies will not be cancelled,
materially changed, amended, reduced or allowed to lapse without renewal without
(1) at least thirty (30) days prior written notice to Landlord and Others in
Interest, or (2) at least ten (10) days prior written notice to Landlord and
Others in Interest in the event of non-payment of premium; that the act or
omission of any insured will not invalidate the policy as to any other insured,
and that Tenant (or the general contractor, as the case may be) solely shall be
responsible for payment of all premiums under such policies and that neither
Landlord nor Others in Interest shall have any obligations for the payment
thereof.
(ix) In the event Tenant shall fail to procure and place any
insurance required under this Lease, after notice to Tenant, Landlord may, but
shall not be obligated to, procure and place the same, in which event the amount
of the premium paid shall be refunded by Tenant to Landlord as Additional Rent.
(c) Tenant shall provide Landlord with a certificate of the
foregoing insurance coverage (which shall provide for not less than thirty (30)
days' written notice to Landlord prior to termination of coverage for any
reason) before occupying the Demised Premises and annually thereafter, and
Tenant shall provide Landlord with renewal replacement certificates at least
thirty (30) days prior to the expiration of any such insurance policy. Landlord
will not be required to carry insurance of any kind on Tenant's personal
property or fixtures, which shall be borne by Tenant at its sole cost and
expense. Tenant shall be responsible for insuring Tenant's interest in all
personal property in the Demised Premises. Except as required by law or by this
Lease, Landlord shall not be obligated to repair any damage to or restore,
rebuild or replace Tenant's personal property or fixtures.
Section 11.2. Indemnity and Non-Liability.
(a) Neither Landlord nor Landlord's agents (including, without
limitation, Landlord's managing agent for the Project), employees, contractors,
officers, directors, shareholders, partners or principals (disclosed or
undisclosed) ("Landlord", collectively for
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purposes of this Article 11) shall be liable to Tenant or Tenant's agents,
employees, contractors, subtenants, assignees, invitees, licensees or any other
occupant of the Demised Premises ("Tenant", collectively, for purposes of this
Article 11) for any and all liabilities, obligations, damages, penalties,
injuries, claims, losses, costs and expenses, including attorneys' fees and
disbursements, paid, suffered or incurred (individually and collectively,
"Loss"), unless such Loss is due to the gross negligence or willful misconduct
of Landlord, in connection with (i) any injury to Tenant or for any damage to,
or loss of, any of Tenant's property and/or the Improvements, (ii) any failure
of Landlord to make repairs or improvements in or to the Project, the Building,
Building equipment or the Demised Premises, (iii) any failure of Landlord to
enforce the Rules and Regulations (provided that all leases of office space in
the Building are subject to Rules and Regulations which are substantially
similar to the Rules and Regulations appended to this Lease), (iv) any injury to
any persons or any damage, caused by other tenants or persons in the Building,
(v) any indirect or consequential damages of Tenant, (vi) any interruption to
Tenant's business, or (vii) any latent defect in the Building, Building
equipment or the Demised Premises. Tenant waives, to the fullest extent
permitted by law, any claim for indirect or consequential damages in connection
with any such Loss.
(b) Tenant shall indemnify, defend and save harmless Landlord from
and against all Loss as a result of (i) any breach by Tenant of any term,
covenant or condition of this Lease; (ii) the acts, omissions or negligence of
Tenant; (iii) the use or occupancy of the Demised Premises and any act or
omission occurring on the Demised Premises during the term hereof; (iv) any use
or storage of any Hazardous Substances (or any materials deemed to be Hazardous
Substances after the date of this Lease) on or about the Premises by Tenant, any
assignee or sublessee of Tenant, or any of their respective employees, agents,
guests or invitees; and (v) any violation of any Environmental Law (including
any amendments thereto or similar laws enacted subsequent to the date of this
Lease) by Tenant, its employees, invitees or contractors respecting activities
conducted on or from the Demised Premises. In case any claim, action or
proceeding is brought against Landlord by reason of any cause described in this
Section 11.2(b), Tenant, upon written notice from Landlord, will at Tenant's
sole cost and expense, resist and defend such claims, action or proceeding by
counsel approved by Landlord.
(c) The Tenant shall pay to the Landlord, within ten (10) days
following rendition by Landlord of bills or statements therefore, sums equal to
all losses, liabilities, and expenses referred to in this Section 11.2.
(d) The terms and provisions of this Section 11.2 shall survive the
expiration or sooner termination of this Lease.
Section 11.3. Waiver of Subrogation. Each party hereby waives, for
itself and its respective insurance carrier(s), and shall use reasonable efforts
to cause each
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insurance policy insuring any risk relating to the Demised Premises or property
in or on the Demised Premises to contain a waiver of any right or claim to
subrogation against the other party with respect to any occurrence covered by
hazard, property damage or liability insurance. If either party cannot obtain a
waiver of subrogation in its insurance policy without the payment of an
additional premium, it shall so notify the other if it does not wish to pay such
additional premium, and the other party shall be afforded a reasonable
opportunity to pay such premium on the non-paying party's behalf. Landlord
represents that, as of the date of this Lease, Landlord's existing insurance
policy for the Project contains a waiver of subrogation in favor of the Tenant
with respect to claims covered by such policy.
Section 11.4 Landlord's Insurance. Landlord shall maintain fire and
hazard insurance for the Building in such forms and such amounts as Landlord
shall deem appropriate given that the Building is a Class-A office building.
ARTICLE 12: DAMAGE BY CASUALTY
Section 12.1. Casualty Damage.
(a) (i) If the Demised Premises shall be partially or totally
damaged or destroyed by fire or other casualty, then Landlord, subject to its
rights under Section 12.1(c) hereof, Force Majeure and adjustments with its
insurance carriers, shall substantially repair the damage and restore and
rebuild the Demised Premises as nearly to the extent of Building standard work
as may be reasonably practical to its condition and character immediately prior
to such damage or destruction, with reasonable diligence from and after Tenant's
delivery of notice to Landlord of the damage or destruction, taking into account
the time required to collect applicable insurance proceeds payable to Landlord
and provided Tenant shall have assigned to Landlord the proceeds of the
insurance polices required to be maintained by Tenant under Section 11.1(a)(6).
(ii) Notwithstanding the foregoing, if the Demised Premises are
damaged by fire or other casualty and are rendered untenantable thereby, or if
the Building or Project shall be so damaged that Tenant shall be deprived of
reasonable access to the Demised Premises, and if Landlord shall elect to
restore the Demised Premises, Landlord shall, within ninety (90) days following
the date of such damage, give notice ("Restoration Notice") to Tenant of the
date by which Landlord's contractor or architect reasonably believes the
restoration of the Premises (exclusive of Tenant Work and any Tenant
Improvements) shall be substantially competed. If the Restoration Notice shall
indicate that the restoration shall not be completed on or before the date which
shall be eighteen (18) months following the date of such damage or destruction,
then Tenant shall have the right to terminate this Lease by giving written
notice to Landlord ("Termination Notice")
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not later than thirty (30) days following the receipt of such statement. If
Tenant gives a Termination Notice, this Lease shall be deemed cancelled and
terminated thirty (30) days after the giving of such Termination Notice as if
such date were the Expiration Date, and Fixed Rent and Additional Rent shall be
apportioned and shall be paid or refunded, as the case may be, up to and
including the date of such damage or destruction. If the Restoration Notice
shall indicate that the restoration shall be completed on or before the date
which shall be eighteen (18) months following the date of such damage or
destruction and such restoration shall not be completed on or before the date
which shall be twenty-four (24) months following the date of such damage or
destruction, then Tenant shall have the right to terminate this Lease by giving
written Termination Notice to Landlord not later than thirty (30) days following
the expiration of such twenty-four (24) month period. If Tenant gives a
Termination Notice, this Lease shall be deemed cancelled and terminated thirty
(30) days after the giving of such Termination Notice as if such date were the
Expiration Date, and Fixed Rent and Additional Rent shall be apportioned and
shall be paid or refunded, as the case may be, up to and including the date of
such damage or destruction.
(iii) Furthermore, notwithstanding anything to the contrary set
forth in this Article 12, if the Demised Premises are damaged by fire or other
casualty during the twelve (12) months prior to the Expiration Date (or the
expiration of any Extension Term then in effect) and such damage can not be
repaired or restored within ninety (90) days from the date of such damage, then
Tenant may, at its option, elect to terminate this Lease, by notifying Landlord
in writing of such election within ninety (90) days after the date of such
damage, in which event this Lease shall terminate thirty (30) days from and
after the date of Tenant's written notice hereunder. If the Demised Premises are
damaged by fire or other casualty during the six (6) months prior to the
Expiration Date (or the expiration of any Extension Term then in effect) and
such damage can not be repaired or restored within thirty (30) days from the
date of such damage, then Tenant may, at its option, elect to terminate this
Lease, by notifying Landlord in writing of such election within thirty (30) days
after the date of such damage, in which event this Lease shall terminate thirty
(30) days from and after the delivery of Tenant's written notice to Landlord.
(b) If the damage or destruction just described is not attributable
to the fault, negligence or misuse of the Demised Premises by Tenant or any
parties included in the definition of Tenant under Article 11, the Fixed Rent
and Additional Rent payable under Article 5 shall be abated to the proportion
that the Demised Premises shall have been rendered untenantable, from the date
of such damage or destruction to the date the damage is substantially repaired,
restored or rebuilt to the condition required under Section 12.1(a) hereof.
Should Tenant reoccupy a portion of the Demised Premises during the period that
the repair, restoration or rebuilding is in progress and prior to the date that
all of the Demised Premises are rendered tenantable, all Fixed Rent and
Additional Rent allocable to such occupied portion (based upon that proportion
which the area of the part so occupied
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bears to the then Rentable Area of the Demised Premises) shall be payable by
Tenant from the date of such occupancy to the date the balance of the Demised
Premises are made tenantable. Any work to be performed by Tenant shall be
performed in accordance with Article 9 hereof applicable to Tenant's alterations
generally.
(c) In case the Project or the Building shall be so damaged by fire
or other casualty that substantial renovation, reconstruction or demolition of
the Project or the Building shall, in Landlord's opinion, be required (whether
or not the Demised Premises shall have been damaged by such fire or other
casualty), or if the available insurance proceeds are inadequate to fund the
necessary repair and/or restoration work, or if the Project or the Building are
damaged by fire or other casualty during the twelve (12) months prior to the
Expiration Date and such damage (or the expiration of any Extension Term then in
effect), then Landlord may, at its option, terminate this Lease, by notifying
Tenant in writing of such termination within one hundred twenty (120) days after
the date of such damage. If at any time prior to Landlord's giving Tenant the
aforesaid notice of termination or commencing repair and restoration pursuant to
Section 12.1(a), the holder of a superior mortgage or the lessor of a superior
lease or any person claiming under or through the holder of such superior
mortgage or the lessor of such superior lease takes possession of the Project or
the Building through foreclosure or otherwise, such holder, lessor or person
shall have a further period of sixty (60) days from the date of so taking
possession to terminate this Lease by appropriate written notice to Tenant. In
the event that such a notice of termination shall be given pursuant to either of
the two (2) immediately preceding sentences, this Lease and the Term shall
expire as of the date of such termination with the same effect as if that were
the Expiration Date, and the Fixed Rent and Additional Rent due and to become
due hereunder shall be apportioned as of such date if not earlier abated
pursuant to Section 12.1(b).
(d) No damages, compensation or claim shall be payable by Landlord
for inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Project or Building
pursuant to this Article 12.
(e) For purposes of this Article 12, the term "casualty damage," to
the extent Landlord is responsible under this Article 12, shall be deemed not to
include damage caused by vandalism, unknown cause or other act not normally
covered under fire and extended coverage insurance policies applicable to office
buildings in Stamford, Connecticut. The provisions of this subparagraph (e)
shall not affect, limit or reduce Tenant's termination rights set forth in
Section 12.1 (a) above.
(f) Tenant agrees to cooperate fully with Landlord and its insurance
adjuster(s) and to provide such information as may be necessary in the
investigation of any insurance claim. Notwithstanding any of the foregoing
provisions of this Article, if such damage or destruction shall have been caused
(in whole or in part) by reason of some
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action or inaction on the part of Tenant or any of its employees, agents or
contractors, then, without prejudice to any remedies which may be available
against Tenant, the abatement of Fixed Rent or Additional Rent provided for in
this Article shall not be effective.
ARTICLE 13: EMINENT DOMAIN
Section 13.1. Taking of Demised Premises. If any part of the Demised
Premises is taken or condemned for a public or quasi-public use, but a part of
the Demised Premises remains susceptible of occupation under this Lease, this
Lease shall, as to the part so taken, terminate as of the date title vests in
the condemnor, and the Rent payable under this Lease will be adjusted so that
Tenant will be required to pay for the remainder of the Term such portion of the
Fixed Rent and Additional Rent as the Rentable Area of the Demised Premises in
the part remaining after the condemnation bears to the Rentable Area of the
entire Demised Premises at the date of condemnation.
Section 13.2. Termination of Lease. Notwithstanding Section 13.1,
upon the taking of more than twenty-five percent (25%) of the then Rentable Area
of the Demised Premises, either party hereto will have the option, exercisable
by notice to the other party hereto, to terminate this Lease as of the date when
title to the part condemned vests in the condemnor. Upon the taking of more than
twenty-five percent (25%) of the Building or the Project, or if during the
twelve (12) months prior to the Expiration Date (or the expiration of any
Extension Term then in effect) any portion of the Building or the Project shall
be taken, Landlord shall have the option exercisable by notice to Tenant to
terminate this Lease whether or not the Demised Premises are affected by such
taking.
Section 13.3. Awards. All compensation awarded in the event of any
condemnation or taking of all or part of the Demised Premises will belong to
Landlord, and Tenant will have no claim to that compensation. Further, Tenant
hereby irrevocably assigns and transfers to Landlord any right to compensation
or damages to which Tenant may be entitled during the Term by reason of any such
condemnation or taking. Nothing contained herein shall prevent Tenant from
seeking an award in a separate legal action from the condemnor for the value of
its leasehold improvements paid for solely by Tenant and for Tenant's moving
expenses and for other costs and expenses which, by law, Tenant may claim from
the condemning authority; provided that (i) Tenant shall not be entitled nor
shall it seek any award on account of the value of its leasehold interest, and
(ii) no such award shall diminish or otherwise adversely affect the payment of
any award the Landlord would otherwise be entitled to receive.
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ARTICLE 14: RIGHTS RESERVED TO LANDLORD
Section 14.1. Access to Demised Premises.
(a) Landlord or Landlord's agents shall have the right (but shall
not be obligated) to enter the Demised Premises in any emergency at any time,
and to perform any acts related to the safety, protection or preservation of the
Demised Premises, the Project or the Building.
(b) At other reasonable times, Landlord may enter the Demised
Premises upon reasonable advance oral or written notice to Tenant's office
manager to examine them or to make such repairs, replacements, improvements, and
alterations as Landlord may deem necessary or desirable to the Demised Premises
or to any other portion of the Project or the Building, or for the purpose of
complying with laws, regulations or other requirements of governmental
authorities. Landlord shall leave the Demised Premises (including carpeting),
after each such entry by Landlord, in reasonably the same condition it was in
prior to such entry, except for any improvements, repairs, installations and
renovations which Landlord has expressly reserved the right to make pursuant to
this Lease. Landlord may, during the progress of any work in the Demised
Premises, take all necessary materials and equipment into the Demised Premises
and close or temporarily suspend operation of entrances, doors, corridors,
elevators or other facilities without such interference constituting an eviction
or entitling Tenant to any abatement of Fixed Rent or Additional Rent.
Notwithstanding the foregoing, Landlord shall undertake to complete any such
repairs, replacements, improvements and alterations in a manner reasonably
designed to minimize interference with the conduct of Tenant's business in the
Demised Premises, provided, however, that except to the extent Landlord would
have elected of its own accord to perform any such repairs, replacements,
improvements or alterations outside of Landlord's normal business hours and on
an overtime basis, Landlord shall have no obligation to undertake such repairs,
alterations, replacements and improvements outside of the Landlord's normal
business hours, unless Tenant first agrees to pay any overtime expenses incurred
thereby. Tenant shall not be entitled to any damages by reason of loss or
interruption of business or otherwise during such periods.
(c) Throughout the Term, Landlord shall also have the right to enter
the Demised Premises at reasonable hours for the purposes of showing the same to
prospective purchasers or mortgagees of the Project or the Building, and, during
the last eighteen (18) months of the Term for the purpose of showing the same to
prospective tenants. Except in the event of an emergency, Landlord shall provide
Tenant with reasonable notice prior to entering the Demised Premises with
contractors for the purpose of conducting non-routine repairs or work to the
Demised Premises.
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(d) If Tenant is not present to provide entry to the Demised
Premises, as provided under this Section 14.1, Landlord or Landlord's agents may
enter the same whenever such entry may be necessary or permissible, by master
key or forcibly. Such entry shall not render Landlord or its agents liable for
trespass or any damage caused by such entry, nor in any event shall the
obligations of Tenant under this Lease be affected, provided, however that if
Landlord should forcibly enter the Demised Premises when such entry was not
necessitated by a real or reasonably perceived emergency, then Landlord shall
repair any damage caused by such non-emergency entry.
(e) All walls, windows and doors bounding the Demised Premises
(including exterior Building walls, core corridor walls and doors and any core
corridor entrance), except the inside surfaces thereof, any terraces (except as
provided in Section 8.4 herein) or roofs adjacent to the Demised Premises, any
space in or adjacent to the Demised Premises used for shafts, stacks, pipes,
conduits, fan rooms, ducts, electric or other utilities, sinks or other Building
facilities, and the use thereof, as well as access thereto through the Demised
Premises for the purposes of operation, maintenance, decoration and repair, are
reserved to Landlord.
(f) Tenant shall permit Landlord to install, use and maintain pipes,
ducts and conduits within or through the Demised Premises, or through the walls,
columns and ceilings therein. Where access doors are required for mechanical
trades in or adjacent to the Demised Premises, Landlord shall furnish and
install such access doors (at Landlord's expense, unless the installation of
such access doors are necessitated as a result of the construction of the
Initial Tenant's Work or any Alterations subsequently desired by Tenant, in
which later case such access doors shall be constructed at Tenant's expense) and
Landlord and Tenant shall cooperate with each other in the location of
Landlord's and Tenant's facilities requiring such access doors.
Section 14.2. Additional Rights. Landlord shall have the following
additional rights exercisable without liability to Tenant for damage or injury
to property, person or business, and without effecting an eviction or
disturbance of Tenant's use or possession or giving rise to a claim for setoffs,
or abatement of Rent:
(a) To make such changes in the Building and/or the Project
including the Building equipment and systems, as well as to change the
arrangement and/or location of the Common Areas as Landlord may deem necessary
or desirable, providing Landlord shall not materially interfere with Tenant's
access to the Demised Premises.
(b) To do or permit to be done any work in or about the Project or
the Building or any adjacent or nearby building, street, parking area, land or
alley;
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(c) To grant to anyone the exclusive right to conduct any business
or render any services in the Project or the Building, provided such exclusive
right is consistent with the operation of a Class-A office building and shall
not operate to exclude Tenant from the use expressly permitted by Article 8;
(d) To close the Project or the Building to the general public at
any such reasonable times after Normal Business Hours as Landlord may determine,
subject, however, to Tenant's right to admittance under Section 10.5;
(e) To install and maintain a sign or signs on the interior or
exterior of the Building and/or the Project;
(f) To retain at all times passkeys to the Demised Premises;
(g) Landlord may enter upon the Demised Premises and may exercise
any or all of the foregoing rights hereby reserved without being deemed guilty
of an eviction or disturbance of Tenant's use or possession and without being
liable in any manner to Tenant and without abatement of Rent or affecting any of
Tenant's obligations hereunder, provided that except in the event of an
emergency, (1) Landlord shall provide Tenant with reasonable notice prior to
entering the Demised Premises with contractors for the purpose of conducting
non-routine repairs or work, and (2) Landlord shall undertake to exercise the
rights reserved herein in a manner reasonably designed to minimize interference
with the conduct of Tenant's business in the Demised Premises, provided,
however, that except to the extent Landlord would have elected of its own accord
to exercise such rights outside of Landlord's normal business hours and on an
overtime basis, Landlord shall have no obligation to exercise such rights
outside of Landlord's normal business hours unless Tenant first agrees to pay
any overtime expenses incurred thereby; and
(h) Upon prior notice to Tenant (except in the case of emergency
when no notice shall be required), to perform any act, obligation or other
commitment reasonably required of or by Tenant which Tenant has not performed
for any reason whatsoever, and to charge Tenant as Additional Rent all costs and
expenses incurred by Landlord for such performance.
Section 14.3 Landlord's Right to Relocate Tenant.
[INTENTIONALLY OMITTED]
ARTICLE 15: ASSIGNMENT AND SUBLETTING
Section 15.1. Consent Required. Except as otherwise expressly
permitted in Section 15.10 (Permitted Sublease) herein, neither Tenant nor
Tenant's legal
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representatives or successors in interest shall, by operation of law or
otherwise, transfer, assign, mortgage or otherwise encumber this Lease (any of
such to be considered an assignment for purposes of this Article), nor sublet
nor suffer or permit the Demised Premises or any part thereof to be used or
occupied by others (any of such to be considered a subletting for purposes of
this Article), without the prior written consent of Landlord in each instance.
If this Lease is assigned, or if the Demised Premises or any part thereof are
sublet, Landlord may collect Rent from the assignee, subtenant or occupant, and
apply the net amount collected to the Rent herein reserved, but no assignment,
subletting, occupancy or collection shall be deemed a waiver of the provisions
hereof, the acceptance of the assignee, subtenant or occupant as tenant, or a
release of Tenant from Tenant's obligations or liabilities under this Lease. The
consent of Landlord to an assignment or subletting shall not in any way be
construed to relieve Tenant from obtaining the express consent in writing of
Landlord to any further assignment or subletting. In no event shall any
permitted subtenant assign or encumber its sublease or further sublet all or any
portion of its sublet space, without Landlord's prior written consent in each
instance. A modification, amendment or extension of a sublease shall be deemed a
separate sublease. If any lien is filed against the Demised Premises or the
Project or the Building for brokerage services claimed to have been performed
for Tenant, whether or not actually performed, the same shall be discharged by
Tenant within thirty (30) days thereafter, at Tenant's expense, by filing the
bond required by law or otherwise and paying any other necessary sums, and
Tenant agrees to indemnify and defend Landlord and its agents and hold them
harmless from and against any and all claims, losses or liability resulting from
such alleged brokerage services. All liens which are discharged by bonding
shall, upon final resolution of the dispute giving rise thereto, be removed of
record by Tenant at its sole cost and expense.
Section 15.2. Landlord's Rights to Assignments and Leasebacks.
(a) If Tenant desires to assign this Lease or to sublet all or any
portion of the Demised Premises, it shall first submit in writing to Landlord
the documents described in Section 15.3 hereof, and shall offer in writing (i)
with respect to a prospective assignment, to assign this Lease to Landlord, or
Landlord's designee or nominee, without any payment of monies or other
consideration therefor, or (ii) with respect to a prospective subletting, to
sublet to Landlord, or Landlord's designee or nominee, the portion of the
Demised Premises involved ("Leaseback Area") (1) for the term specified by
Tenant in its proposed sublease, (2) at a rent which is the lower of Tenant's
proposed subrental and the rate of Fixed Rent and Additional Rent provided in
this Lease, and (3) otherwise on the same terms, covenants and conditions
(including provisions relating to escalation rents) as are contained herein and
as are allocable and applicable to the portion of the Demised Premises to be
covered by such subletting. The offer shall specify the date (the "Effective
Date") when the assignment or sublease will be effective which date shall in no
event be earlier than ninety (90) days nor later than one hundred eighty (180)
days following the
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acceptance of the offer. If an offer of sublease is made, and if the proposed
sublease will result in all or substantially all of the Demised Premises being
sublet, then Landlord shall have the option to extend the term of its proposed
sublease to equal the balance of the Term of this Lease less one (1) day.
(b) Landlord, in any event, shall have a period of ninety (90) days
from the receipt of any such assignment or subletting offer from Tenant to
accept or reject (i) an assignment of this Lease to the Landlord, or the
Landlord's nominee or designee, or (ii) a sublease to Landlord, or its nominee
or designee, of the Leaseback Area. If Landlord shall accept such offer within
such ninety (90) day period, then Tenant shall then execute and deliver to
Landlord, or to anyone designated or named by Landlord, an assignment or
sublease, as the case may be, in form and substance satisfactory to Landlord's
counsel.
(c) Terms of Sublease to Landlord. If a sublease is so made under
(b) above, it shall expressly:
(i) permit Landlord to make further subleases of all or any part of
the Leaseback Area and (at no cost or expense to Tenant) to make and authorize
any and all changes, alterations, installations and improvements in such space
as necessary;
(ii) provide that Tenant will at all times permit reasonably
appropriate means of ingress and egress from the Leaseback Area;
(iii) negate any implication that the estate created under such
sublease be merged with any other estate held by either of the parties;
(iv) provide that Landlord shall accept the Leaseback Area "as is"
except that Landlord, at Tenant's expense, shall perform all such work and make
all such alterations as may be required to separate the Leaseback Area
physically from the remainder of the Demised Premises and to permit lawful
occupancy;
(v) provide that at the expiration of the term of such sublease,
Tenant will accept the Leaseback Area in its then existing condition.
(d) Protection of Tenant. Except for Rent, if any, due under this
Lease in excess of the rents due under such sublease, performance by Landlord or
its designee under a sublease of the Leaseback Area shall be deemed performance
by Tenant of any similar obligation under this Lease and any default under any
such sublease shall not give rise to a default under a similar obligation
contained in this Lease, nor shall Tenant be liable for any default under this
Lease or deemed to be in default hereunder if such default is occasioned by or
arises solely from any act or omission of the subtenant under such sublease or
is
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occasioned by or arises solely from any act or omission of any occupant holding
under or pursuant to any such sublease.
(e) Landlord's Termination Option. As an alternative to Landlord's
other rights under this Section 15.2, within ninety (90) days of Landlord's
receipt of Tenant's notice that Tenant desires to assign this Lease or to
sublease all or substantially all of the Demised Premises, except with respect
to an sublease within the scope of Section 15.10 (Permitted Sublease) herein,
Landlord may elect to terminate this Lease as to the entire Demised Premises or
as to the relevant portion thereof (at Landlord's option) by delivering written
notice of such election to Tenant. If Landlord shall have elected to terminate
this Lease pursuant to this Section 15.2, such termination shall be effective as
of the Effective Date and thereupon the Term of this Lease shall cease and come
to an end on that day with the same force and effect as though that were the
original date set forth as the Expiration Date, and Tenant shall deliver broom
clean possession of the Demised Premises to Landlord, in accordance with the
terms of this Lease. Thereafter, neither party shall have any obligation to the
other hereunder, except for any Rent due and owing to the Landlord up to and
including the termination of this Lease, any obligations that expressly survive
hereunder, and as the parties hereto may have agreed otherwise in this Lease or
by a separate writing.
Section 15.3. Required Documents. If Tenant requests Landlord's
consent to a specific assignment or subletting, it shall submit in writing to
Landlord (a) the name and address of the proposed assignee or subtenant, (b) a
statement of the rent, additional rent and a description of the other material
terms of the proposed transaction, (c) satisfactory information as to the nature
and character of the business of the proposed assignee or subtenant, and as to
the nature of its proposed use of the space, and (d) banking, financial or other
information relating to the proposed assignee or subtenant reasonably sufficient
to enable Landlord to determine the financial responsibility, business
reputation and character of the proposed assignee or subtenant. In connection
with any request for Landlord's consent to a proposed assignment or sublease,
Tenant shall, as Additional Rent, pay a fee to be established by Landlord to
cover the administrative, accounting, legal and technical costs of reviewing
such request.
Section 15.4. Landlord's Consent. If Landlord does not accept
Tenant's offer or elect to terminate this Lease, as provided in Section 15.2,
then Landlord shall not unreasonably withhold or delay its consent to such
specific assignment or subletting. Any such consent of Landlord shall be subject
to the terms of this Article 15 and conditioned upon there being no default by
Tenant under any of the terms, covenants and conditions of this Lease at the
time that Landlord's consent to any such subletting or assignment is requested
and on the date of the commencement of the term of any such proposed sublease or
the Effective Date of any such proposed assignment. Upon receiving Landlord's
written consent, a duly executed and complete copy of the sublease or
assignment, which must be
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acceptable to Landlord in form and substance, shall be delivered to Landlord
within ten (10) days after execution thereof. Tenant acknowledges that
Landlord's consent may be withheld and it shall not be deemed unreasonable if
the proposed assignee or subtenant's creditworthiness is reasonably unacceptable
to the Landlord in view of the proposed assignee's obligations under the
proposed assignment of this Lease or the proposed sublessee's obligations under
the proposed sublease. In no event shall any assignment of the Lease or sublease
of the Demised Premises relieve Tenant from its obligations under this Lease.
Any such sublease shall provide that the subtenant shall comply with all
applicable terms and conditions of this Lease to be performed by the Tenant
hereunder. Any such assignment of Lease shall contain an assumption by the
assignee of all of the terms, covenants and conditions of this Lease to be
performed by the Tenant. In the event of any sublease or assignment, the Demised
Premises must be restored and returned to Landlord in the condition as
originally existed at the Commencement Date, reasonable wear and tear excepted,
unless Landlord consents to have any proposed changes remain at the expiration
of the Term.
Section 15.5. Limitations. Anything herein contained to the contrary
notwithstanding:
(a) Prior to advertising, marketing or listing all or any portion of
the Demised Premises for sublease or assignment, Tenant shall send written
notice thereof to Landlord, specifying the approximate size of the premises
being marketed and the approximate term of the proposed sublease or assignment.
Tenant shall not advertise (nor list with brokers) its space for assignment or
subletting at a rent lower than the Rent then being paid by Tenant to Landlord
or the then rental schedule of Landlord for similar space in the Project.
(b) Except as otherwise specifically permitted in Section 15.10
(Permitted Sublease) herein, the transfer of a majority of the issued and
outstanding capital stock of any corporate tenant or subtenant of this Lease,
other than pursuant to a public offering, or a controlling interest in any
partnership tenant or subtenant, however accomplished, and whether in a single
transaction or in a series of related or unrelated transactions, shall be deemed
an assignment of this Lease or of such sublease.
(c) No assignment or subletting shall be made:
(i) When Landlord has other, comparable space in the Project
available for leasing by Landlord, to any person or entity which shall at that
time be a tenant, subtenant or other occupant of any part of the Project, or
which dealt with Landlord or Landlord's agent (directly or through a broker)
with respect to space in the Project during the twelve (12) months immediately
preceding Tenant's request for Landlord's consent. At Tenant's request, Landlord
shall, from time to time, but no often than once per Lease Year, provide
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Tenant with a current list of persons or entities falling within the scope of
Section 15.5 (c)(i) above;
(ii) By the legal representatives of the Tenant or by any person to
whom Tenant's interest under this Lease passes by operation of law, except in
compliance with the provisions of this Article;
(iii) To any person or entity for the conduct of a business which is
not in keeping with the standards and the general character of the Project as
Class-A office buildings;
(iv) To any entity which shall have or enjoy diplomatic immunity or
to any governmental or quasi-governmental entity;
(v) Which would violate any restrictive covenants then in effect for
the Project;
(vi) Under no circumstances shall the Demised Premises be sublet to
more than two (2) subtenants at any one time (or to more than one (1) subtenant,
if Tenant shall remain in possession of any portion of the Demised Premises) and
under no circumstances shall less than fifty percent (50%) of the Demised
Premises be sublet to any one (1) subtenant.
(d) Tenant shall send to Landlord copies of all notices it sends or
receives in connection with any sublease or assignment.
Section 15.6. Attornment of Subtenant. Every sublease hereunder
shall contain a provision in which the subtenant shall agree for the benefit of
Landlord that, in the event this Lease is cancelled or terminated prior to the
expiration date of the sublease, whether by voluntary or involuntary means or by
operation of law, or for any reason whatsoever, the subtenant shall agree, if
Landlord so requests, to make full and complete attornment to Landlord for the
balance of the term of the sublease, which attornment shall be evidenced by an
agreement in form and substance satisfactory to Landlord, which the subtenant
shall agree to execute and deliver within ten (10) days of Landlord's request.
Section 15.7. Sums Payable to Landlord. If Landlord consents to any
assignment or subletting, then one-half (1/2) of (i) any rent or other
consideration paid by (1) any subtenant in excess of the Rent allocable to the
subleased space, less the reasonable brokers' commissions, reasonable
out-of-pocket attorney's fees incurred by Tenant, free-rent concessions (not to
exceed six (6) months) and the reasonable costs of alterations to the Demised
Premises to accommodate a sublease actually incurred by Tenant, or (2) any rent
paid by an assignee which is in excess of the Rent which is then being paid by
Tenant
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to Landlord pursuant to the terms hereof, less the reasonable brokers'
commissions, reasonable out-of-pocket attorney's fees incurred by Tenant and
free-rent concessions (not to exceed six (6) months) actually incurred by
Tenant, and (ii) any "other profit or gain" realized by Tenant (and/or any
successor-in-interest in the case of a further assignment or subletting) from
any such subletting or assignment, or, if the subletting or assignment is part
of a group or series of transactions, properly allocable thereto shall be paid
to Landlord when due to Tenant. For the purpose of this Section 15.7, "other
profit or gain" shall mean any sums paid to Tenant for the sale or rental of any
of Tenant's property to such assignee or sublessee, less, in the case of the
sale thereof, the then fair market value thereof, which shall be presumed to be
the net unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax returns.
Section 15.8. Waiver. In no event shall Tenant be entitled to make,
nor shall Tenant make, any claim, and Tenant hereby waives any claim, for money
damages (nor shall Tenant claim any money damages by way of set-off,
counterclaim or defense) based upon any claim or assertion by Tenant that
Landlord has unreasonably withheld or unduly delayed its consent or approval to
a proposed assignment or subletting as provided for in this Article. Tenant's
sole remedy shall be an action or proceeding for specific performance. In the
event Tenant should institute an action against Landlord which is within the
scope of this Section 15.8 and such action shall proceed to a final,
non-appealable judicial judgment, then the loosing party in such action shall
pay the prevailing party's reasonable, out-of-pocket legal fees paid by the
prevailing party to outside (as opposed to "in-house") legal counsel in
connection with the prosecution or defense of such action.
Section 15.9. Mortgagee Notice. Tenant shall send to the parties
mentioned in Section 22.20(b) below copies of any notices served by Tenant to
Landlord pursuant to this Article 15.
Section 15.10. Permitted Assignment or Sublease. Notwithstanding
anything to the contrary contained herein, but subject to the restrictions
stated in subsections (c) (iii), (iv) and (v) of Section 15.5 (Limitations)
herein, Tenant may assign this Lease (a "Permitted Assignment"), or sublet all,
or less than all of, the Demised Premises (a "Permitted Sublease") to a
wholly-owned corporation of Tenant (a "Subsidiary") or to any corporation the
stock of which is entirely owned by a corporation owning all of Tenant's stock
or to an entity controlled by, controlling or under common control with Tenant
(an "Affiliate"), provided: (i) Tenant provides Landlord with not less than
sixty (60) days prior written notice of such intended Permitted Assignment or
Permitted Sublease, together with a detailed summary of the proposed business
operations of such Affiliate or Subsidiary and detailed current financial
statements with respect to such Affiliate or Subsidiary, which financial
statements must be reasonably acceptable to Landlord, (ii) Tenant is not in
default under this Lease; and (iii) in no event shall any
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Permitted Sublessee or Permitted Assignment release or relieve Tenant from any
liability or obligation under this Lease whether arising before or after such
Permitted Sublease or Permitted Assignment.
ARTICLE 16: TENANT'S DEFAULT AND LANDLORD'S REMEDIES
Section 16.1. Events of Default. Any of the following occurrences
will be deemed an event of default under this Lease:
(a) Tenant's failure to pay any Fixed Rent or Additional Rent
provided for in this Lease within five (5) days of when the same shall become
due and payable; provided that, not more than once in any one Lease Year,
Landlord shall provide Tenant with written notice and five (5) days in which to
cure a default under this Section 16.1 (a) before such failure to pay shall
become an Event of Default;
(b) Tenant's failure to comply with any provision of this Lease
other than Tenant's obligations to make timely payments of Fixed Rent and
Additional Rent, which remains uncured for a period of ten (10) days after
written notice thereof from Landlord. In the case of a default which cannot with
due diligence be cured within a period of ten (10) days, Tenant shall have such
additional time to cure same as may reasonably be necessary, provided Tenant
commences to cure such failure within the ten (10) day period and proceeds
promptly, effectively, continuously, and with due diligence to cure such failure
after receipt of said notice;
(c) Tenant's abandoning or vacating the Demised Premises for more
than ninety (90) consecutive days;
(d) the filing by or against Tenant in any court, pursuant to any
statute of the United States or of any State, a petition in bankruptcy,
insolvency, or reorganization (which in the case of a filing against Tenant
remains undischarged for thirty (30) days), or for the appointment of a
receiver, trustee, or conservator of all or a portion of Tenant's property, or
the making by Tenant of an assignment for the benefit of creditors, or a general
failure by Tenant to pay its debts when due; or
(e) the occurrence of an "Event of Default", as such term is defined
in Section 16.1 of the 680 Lease, under the 680 Lease.
Section 16.2. Landlord's Remedies.
(a) Upon the occurrence of any event of default by Tenant under
Section 16.1, notwithstanding the fact that Landlord has, may have, also
exercises, or may exercise
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some other remedy under this Lease, at law or in equity, Landlord may give to
Tenant a notice (the "Termination Notice") terminating this Lease as of a date
specified therein, but not less than three (3) days after the date of the
Termination Notice, and the Term shall end upon the day so specified with the
same force and effect as if it were the Expiration Date, except as provided
below. On such specified date, all rights of Tenant under this Lease shall
terminate, and Tenant shall remain liable for damages as provided in this Lease.
Tenant hereby waives the service of any further notice to quit or notice of
intention to reenter or any other notice for breach or default as exists by
statute or at common law, except for any notice to quit which Landlord may, in
the future, be required, by Connecticut statute, to deliver to a commercial
(non-residential) tenant.
(b) From and after any termination date specified in the Termination
Notice, Landlord, without further notice, may enter and repossess the Demised
Premises, by summary proceedings, ejectment or otherwise, in accordance with
Connecticut laws, remove Tenant and all other persons and property from the
Demised Premises, and hold and enjoy the Demised Premises and the right to
receive all rental and other income of the Demised Premises. Landlord shall
incur no liability to any person for or by reason of any such entry,
repossession or removal of Tenant or any person claiming through or under
Tenant. After such entry into possession, Landlord may, but shall not be
obligated to attempt to, relet all or part of the Demised Premises for the
account of Tenant for such rent, for such time, and upon such terms as Landlord,
in Landlord's sole discretion, shall determine. Any rental and income received
shall, to that extent, reduce Tenant's obligation for damages to be paid under
this Lease. Tenant shall also pay to Landlord all reasonable expenses which
Landlord may incur from and after Tenant's default for legal expenses or fees,
brokerage commissions (pro-rated for the remaining balance of the Term and any
exercised Extension Term), or other costs paid or incurred by Landlord for
restoring the Demised Premises to good order and condition, altering,
decorating, redecorating, repairing or otherwise preparing the same for
reletting, maintaining the Demised Premises, reletting the same, or collecting
sums due from Tenant as provided herein. The right of Landlord to recover from
Tenant the amounts hereinabove provided shall survive the issuance of any order
for possession or other cancellation or termination hereof, and Tenant hereby
expressly waives any defense that might be predicated upon the issuance of such
order for possession or other cancellation or-termination hereof. The words
"enter" or "reenter", "possess" or "repossess" as herein used are not restricted
to their technical meaning.
(c) Tenant hereby expressly waives any and all right of redemption
granted by or under any present or future laws in the event of Tenant's being
evicted or dispossessed for any cause, or in the event of Landlord's obtaining
possession of the Demised Premises, by reason of the violation by Tenant of any
of the covenants and conditions of this Lease, or otherwise.
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(d) TENANT ACKNOWLEDGES THAT THIS LEASE CONSTITUTES A COMMERCIAL
TRANSACTION WITHIN THE MEANING OF SECTION 52-278A OF THE CONNECTICUT GENERAL
STATUTES. PURSUANT TO SECTION 52-278F OF SAID CONNECTICUT GENERAL STATUTES,
TENANT HEREBY WAIVES AND RELINQUISHES ALL RIGHTS TO NOTICE AND HEARING AS
PROVIDED IN SECTION 52-278A THROUGH SECTION 52-278G OF SAID CONNECTICUT GENERAL
STATUTES PRIOR TO LANDLORD OBTAINING ANY PREJUDGMENT REMEDY AGAINST TENANT IN
CONNECTION WITH THE ENFORCEMENT BY LANDLORD OF ANY OF ITS RIGHTS OR REMEDIES
UNDER THIS LEASE. IF SUMMARY PROCESS IS UTILIZED, TENANT HEREBY WAIVES ALL
REQUIRED NOTICES, PURSUANT TO SECTION 47A-24 OF THE CONNECTICUT GENERAL
STATUTES, EXCEPT THOSE REQUIRED UNDER THIS LEASE.
Section 16.3. Damages. (a) If pursuant to the provisions of this
Article 16, this Lease is terminated or if Landlord shall re-enter the Demised
Premises or in the event of the termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Tenant shall pay to
Landlord as damages, at the election of Landlord:
(i)(x) an amount equal to the unamortized portion of the cost of
Tenant's Work which was paid for by Landlord, including the Allowance amount
(such cost being amortized on a straight-line basis over the Term of this
Lease), together with such expenses incurred by Landlord in removing or altering
Tenant's Work and Improvements in order to return the Demised Premises to a
condition that will allow Landlord to relet the Demised Premises, plus (y) all
Rent due and payable by Tenant as of the date of termination, plus a sum which
at the time of such termination of this Lease or at the time of such re-entry by
Landlord, as the case may be, represents the then present value as calculated
using a discount rate equal to Landlord's cost of funds, of the excess, if any,
of
(1) the aggregate of the Fixed Rent and Additional Rent payable
hereunder which would have been payable by Tenant (conclusively presuming the
Additional Rent to be the same as was payable for the year immediately preceding
such termination) for the period commencing with such earlier termination of
this Lease or the date of any such re-entry, as the case may be, and ending with
the Expiration Date, had this Lease not so terminated or had Landlord not so
re-entered the Demised Premises, over
(2) the aggregate fair market rental value of the Demised Premises
for the same period, or
(ii) sums equal to the Rent (as above presumed) payable hereunder
which would have been payable by Tenant had this Lease not so terminated, or had
Landlord not so re-entered the Demised Premises, payable upon the due dates
therefor specified herein
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following such termination or such re-entry and until the Expiration Date,
provided, however, that if Landlord shall relet the Demised Premises during said
period, Landlord shall credit Tenant with the net rents received by Landlord
from such reletting, such net rents to be determined by first deducting from the
gross rents as and when received by Landlord such reletting expenses incurred or
paid by Landlord in terminating this Lease or in re-entering the Premises and in
securing possession thereof, as well as the expenses of reletting, including
altering and preparing the Demised Premises and the rental therefrom; it being
understood that any such reletting may be for a period shorter or longer than
the remaining term of this Lease; but in no event shall Tenant be entitled to
receive any excess of such net rents over the sums payable by Tenant to Landlord
hereunder, nor shall Tenant be entitled to any suit for the collection of
damages pursuant to this Section 16.3 or to a credit in respect of any net rents
from a reletting. If the Demised Premises or any part thereof should be relet in
combination with other space, then proper apportionment on a square foot basis
(for equivalent space) shall be made of the rent received from such reletting
and of the expenses of reletting. If the Demised Premises or any part thereof is
relet by Landlord for the unexpired portion of the term of this Lease, or any
part thereof, before presentation of proof of such damages to any court,
commission or tribunal, the amount of rent reserved upon such reletting shall,
prima facie, be the fair and reasonable rental value for the Demised Premises,
or part thereof, so relet during the term of the reletting. Notwithstanding
anything contained herein to the contrary, Landlord shall not be liable or
responsible to Tenant for any failure to relet the Demised Premises, or if the
Demised Premises are relet, for any failure to collect the rent due thereunder.
All sums due under this Section 16.3(a) shall be paid together with
interest thereon from the date of such termination or re-entry by Landlord, at a
rate equal to one and one-half (1.5%) percent per month or the maximum rate
allowed by law, whichever is less.
(b) Suit or suits for the recovery of damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the Term of this Lease would have expired if it had not been
so terminated under the provisions of this Article 16, or under any provision of
law, or had Landlord not re-entered the Demised Premises. Tenant agrees to pay
all reasonable costs and expenses of Landlord, including, without limitation,
reasonable attorneys' fees and disbursements incurred in connection with any
such suit or suits. Nothing herein contained shall be construed to limit or
preclude recovery by Landlord against Tenant of any sums or damages to which, in
addition to the damages particularly provided above, Landlord may lawfully be
entitled by reason of any default hereunder on the part of Tenant. Nothing
herein contained shall be construed to limit or prejudice the right of Landlord
to prove for and obtain as liquidated damages by reason of the termination of
this Lease or re-entry on the Demised Premises for the default of Tenant under
this Lease, an amount equal to the maximum allowed by
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any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved whether or not such amount
is greater than, equal to, or less than any of the sums referred to in this
Section 16.3.
Nothing contained in this Lease shall be construed as limiting or
precluding the recovery by Landlord against Tenant of any damages to which
Landlord may lawfully be entitled in any case other than those particularly
provided for above.
Section 16.4 No Waiver; Injunction. No waiver by Landlord of a
breach of any of the covenants or conditions of this Lease shall be construed to
be a waiver of any future breach of the same or any other covenant or condition.
In the event of any breach or threatened breach by Tenant of any of the
agreements, terms, covenants or conditions contained in this Lease, Landlord
shall be entitled to enjoin such breach or threatened breach and shall have the
right to invoke any right and remedy allowed at law or in equity or by statute
or otherwise as though re-entry, summary proceedings, and other remedies were
not provided for in this Lease.
Section 16.5. Remedies Cumulative. The rights and remedies of
Landlord created by this Lease are cumulative, and the use of one remedy shall
not be taken to exclude or waive the right to use another, or exclude any other
right or remedy allowed by law, equity, statute or otherwise. Tenant hereby
waives all right of redemption to which Tenant or any person or entity claiming
by, through or under Tenant might be entitled by any law now or hereafter in
effect.
ARTICLE 17: SURRENDER OF PREMISES AND SURVIVAL OF TENANT'S
OBLIGATIONS
Section 17.1. Surrender. At the end of the Term or sooner
termination of this Lease, Tenant shall immediately surrender possession of the
Demised Premises, vacant and broom clean and shall leave the Demised Premises in
the same condition as they were at the beginning of the Term, except for
ordinary wear and tear, and, subject to the terms of Article 9 herein, including
the terms of Section 9.4 (b) herein, shall remove any Tenant's Work (as defined
in Exhibit B) undertaken subsequent to the initial Tenant's Work undertaken to
prepare the Demised Premises for Tenant's initial occupancy. Upon such
surrender, all right, title and interest of Tenant in the Demised Premises shall
cease.
Section 17.2. Trade Fixtures, Personal Property and Improvements.
Subject to Tenant's rights under Article 9, after the end of the Term or sooner
termination of this Lease and upon Tenant's vacating of the Demised Premises,
all of Tenant's trade fixtures, personal property and improvements remaining in
the Demised Premises shall be deemed conclusively to have been abandoned by
Tenant and may be withheld or disposed
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of by Landlord without notice or obligation to compensate Tenant or to account
for such property and improvements. Tenant shall promptly reimburse Landlord for
all costs and expenses of removal, disposal or sale of such trade fixtures,
personal property and improvements, which obligation shall survive the
termination of this Lease.
Section 17.3. Merger. The voluntary or other surrender of this Lease
by Tenant or the cancellation of this Lease by mutual agreement of Tenant and
Landlord shall not work a merger, and shall at Landlord's option either
terminate all or any subleases and subtenancies or operate as an assignment to
Landlord of all or any subleases or subtenancies. Landlord's option under this
Section 17.3 shall be exercised by notice to Tenant and all known subtenants in
the Demised Premises.
Section 17.4. Survival; Payments After Termination. All of Tenant's
obligations under this Lease to pay Rent and the parties respective
indemnification obligations expressly stated in this Lease and all other
obligations of the parties expressly so stated shall survive the expiration or
sooner termination of the Lease. No payments of money by Tenant to Landlord
after the end of the Term shall reinstate, continue or extend the Term or make
ineffective any notice given to Tenant prior to the payment of such money. After
the service of notice or the commencement of a suit, or after final judgment
granting Landlord possession of the Demised Premises, Landlord may receive and
collect any sums of Rent due under this Lease, and the payment of Rent shall not
make ineffective any notice, or in any manner affect any pending suit or any
judgment previously obtained.
ARTICLE 18: HOLDING OVER
Section 18.1. Holding Over. If Tenant retains possession of all or
any part of the Demised Premises after the end of the Term, or has failed on or
before the Expiration Date to deliver the Demised Premises to Landlord in the
condition required by Section 17.1, Tenant shall pay as Rent a sum equal to Two
Hundred Percent (200%) of the amount, including Fixed Rent, Additional Rent and
any other charges under this Lease, payable for the month preceding such holding
over, computed on a daily basis for each day that Tenant remains in possession.
In addition to this amount, Tenant shall be liable for all damages,
consequential as well as direct, sustained by reason of Tenant's holding over.
In no event shall a month-to-month tenancy be created by such holdover. Tenant
hereby agrees to indemnify, defend and hold Landlord harmless from and against
any Loss resulting from delay by Tenant in surrendering the Demised Premises
upon the expiration or termination of this Lease, including, without limitation,
any claims made by any succeeding or prospective tenant arising out of such
delay. Tenant's obligations under this Article 18 shall survive the expiration
or sooner termination of this Lease.
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ARTICLE 19: ESTOPPEL CERTIFICATE, SUBORDINATION,
ATTORNMENT
Section 19.1. Estoppel Certificates. (a) Tenant's Obligations.
Tenant shall at any time, within ten (10) days of written request, execute and
deliver in recordable form and in substance satisfactory to Landlord, an
estoppel certificate certifying the date to which Rent has been paid; the amount
of the Security Deposit; that this Lease is in full force and effect and has not
been modified or amended (or if modified or amended, denominating the same) and
that there are no defenses or offsets to this Lease (or if any be claimed,
specifying the same); whether there are any defaults of Landlord under this
Lease or any existing condition which upon the giving of notice or lapse of time
would constitute a default (and, if so, specifying the same); that Tenant has no
option or rights other than as set forth in this Lease (or if Tenant has any
such option or rights, specifying the same); and such other matters as may be
requested by Landlord, any actual or prospective purchaser of the Building or
the Project or by any holder of any lease, mortgage or deed of trust to which
this Lease is or may become subordinate. If the certificate is to be delivered
to a purchaser of the Building or the Project, it shall further include the
agreement of Tenant to recognize such purchaser as Landlord under this Lease,
and thereafter to pay Rent to the purchaser or its designee in accordance with
this Lease. Tenant acknowledges that any such purchaser, mortgagee or ground
lessor of the Building and/or the Project may rely on such estoppel certificate.
Tenant's failure to deliver such certificate within such time shall be
conclusive evidence that this Lease is in full force and effect without
modification, that there are no defaults and that all of the foregoing and any
other matters required to be stated in the certificate are true and correct,
subject to such conditions as such interest holder may reasonably require.
(b) Landlord's Obligations. In the event the Tenant shall
represent to Landlord, in writing, that an Estoppel Certificate from Landlord
shall be necessary in order for Tenant to obtain financing for Tenant's
operations or for Tenant to issue a public stock offering, then Landlord shall,
no more than once in any given Lease Year, within twenty (20) days of written
request from Tenant, execute and deliver to Tenant an estoppel certificate, in
form and substance reasonably acceptable to Landlord, covering, as appropriate,
substantially the matters set forth in Section 19.1 (a) above, except that the
last sentence of Section 19.1 (a) above shall be inapplicable to Landlord's
obligation under this Section 19.1 (b). Tenant shall reimburse Landlord for the
reasonable legal fees incurred by Landlord in complying with a request under
this Section 19.1 (b).
Section 19.2. Subordination and Non-Disturbance. This Lease is
subject and subordinate to all ground or underlying leases, mortgages and deeds
of trust which may now or hereafter affect the Project or the Building, and to
all renewals, modifications, consolidations, replacements and extensions
thereof. It is further agreed that Tenant, or Tenant's successors in interest,
will execute and deliver within ten (10) days upon the
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demand of Landlord any and all instruments desired by Landlord or the holder of
any such interest confirming in the manner requested by Landlord the
subordination of this Lease to such lease, mortgage or deed of trust. Landlord
shall provide Tenant with a non-disturbance agreement from the holder of any
such superior interest, which shall be in such holder's standard form, providing
in essence, that so long as Tenant is not in default under any of the terms,
covenants, provisions or conditions of this Lease, Tenant shall have the right
to peaceably and quietly enjoy the Demised Premises subject to the terms of this
Lease.
Section 19.3. Attornment. Tenant agrees that, at the option of the
landlord under any ground lease now or in the future affecting the Project or
the Building, Tenant shall attorn to said landlord in the event of the
termination or cancellation of such ground lease and if requested by said
landlord, enter into a new lease with said landlord (or a successor
ground-lessee designated by said landlord) for the balance of the Term upon the
same terms and conditions as in this Lease. In the event the Landlord shall
transfer, assign, or otherwise convey its interest in the Building or Project,
such transfer, sale, assignment or conveyance shall be subject to this Lease and
Tenant and all assignees and sublessees of Tenant shall attorn to and respect
such successor owner as the new Landlord hereunder.
Section 19.4. Mortgages. In the event of foreclosure or exercise of
power of sale under any mortgage or deed of trust now or in the future affecting
the Project or the Building, the holder of any such mortgage or deed of trust
(or purchaser at any sale pursuant to such mortgage or deed of trust) shall have
the option of (a) supplementing this Article, to require Tenant to attorn to
such holder or purchaser, and to enter into a new lease with such holder or
purchaser (as Landlord) for the balance of the Term upon the same terms and
conditions as in this Lease, or (b) notwithstanding this Article, to elect that
this Lease shall become or remain, as the case may be, superior to said mortgage
or deed of trust. Tenant shall, upon request by any such holder or purchaser,
execute and deliver any and all instruments desired by any such holder or
purchaser evidencing the superiority of this Lease to any said mortgage or deed
of trust.
ARTICLE 20: QUIET ENJOYMENT
Section 20.1. Quiet Enjoyment. Landlord covenants and agrees with
Tenant that upon Tenant's paying, when due, the Fixed Rent and Additional Rent
and any other charges under this Lease and observing and performing in a timely
manner all of the terms, covenants and conditions on Tenant's part to be
observed and performed hereunder, Tenant may peaceably and quietly enjoy the
Demised Premises, in accordance with and subject to the terms and conditions of
this Lease and any ground leases, underlying leases, deeds of trust, and
mortgages.
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ARTICLE 21: NOTICES
Section 21.1. Notices. Whenever any notice, document or
communication is required or permitted hereunder (a "notice"), such notice shall
be in writing and shall be deemed to be delivered upon receipt, if by personal
delivery, or three (3) business days after being deposited in the United States
mail, postage prepaid, registered or certified mail, return receipt requested
(or, the next business day after being deposited with a reputable
overnight/express mail carrier, such as Federal Express), addressed to the
parties to this Lease at their respective addresses in Article 1, or at such
other addresses as they may have specified by written notice delivered in
accordance with this Section.
All notices to Landlord shall be sent to:
Stamford Towers Limited Partnership
c/o Lehman Brothers Inc., Diversified Asset Group
Three World Financial Center
200 Vesey Street - 29th Floor
New York, New York 10285
Attention: Regina M. Hertl
Copies of all notices sent to Landlord shall also be sent to:
Cummings & Lockwood
Four Stamford Plaza
P.O. Box 120
Stamford, Connecticut 06904
Attention: Geoffrey F. Fay, Esq.
All notices to Tenant shall be sent to:
Memberworks Incorporated
680 Washington Boulevard
11th Floor
Stamford, Connecticut 06902
Attention: Mr. James B. Duffy, Secretary & Treasurer
Copies of all notice sent to Tenant shall also be sent to:
Diserio Martin O'Connor & Castiglioni
One Atlantic Street
Stamford, Connecticut 06901-2402
Attention: William A. Durkin III, Esq.
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In addition, Tenant shall send copies of any notices of default by
Landlord, in the manner required above, to the parties mentioned in Section
22.20 below.
ARTICLE 22: MISCELLANEOUS PROVISIONS
Section 22.1. Applicable Law. This Lease shall be governed by and
construed under the laws of the State of Connecticut.
Section 22.2. Parties Bound. It is agreed that this Lease, and each
of the covenants and obligations of this Lease, shall be binding upon and inure
to the benefit of the parties to this Lease and their respective heirs,
executors, administrators, successors and assigns, subject to all agreements and
restrictions contained in this Lease with respect to assignment or other
transfer of Tenant's interest in this Lease. However, the obligations of
Landlord under this Lease shall not be binding upon Landlord herein named with
respect to any period subsequent to the transfer of its interest in the Building
as owner or lessee thereof and in the event of such transfer, such obligations
shall thereafter be binding upon each transferee of the interest of Landlord
herein named as such owner or lessee of the Building, but only with respect to
the period ending with a subsequent transfer within the meaning of this Article,
and such transferee, by accepting such interest, shall be deemed to have assumed
such obligations except only as may be expressly otherwise provided elsewhere in
this Lease. A lease of Landlord's entire interest in the Building or the Project
as owner or lessee thereof shall be deemed a transfer within the meaning of this
Article.
Section 22.3. Rules and Regulations. Tenant and its servants,
agents, employees, invitees and contractors shall faithfully observe and comply
strictly with the Rules and Regulations set forth in Exhibit D attached hereto,
and with any reasonable changes thereto, whether by modification, elimination or
addition, but provided that Landlord gives written notice of any such changes to
Tenant. In the case of any conflict or inconsistency between the provisions of
this Lease and any of the Rules and Regulations as originally promulgated or as
changed, the provisions of this Lease shall control in each instance. Nothing in
this Lease shall be construed to impose upon Landlord any duty or obligation to
enforce the Rules and Regulations or the provisions of any other lease as
against any other tenant, and Landlord shall not be liable to Tenant for
violation of the same by any other tenant or said other tenant's servants,
agents, employees, invitees or contractors; however, Landlord shall not enforce
the Rules and Regulations in a discriminatory manner.
Section 22.4. Signs. Tenant shall not display or erect any
lettering, sign or advertisement on or outside the Demised Premises, or in or on
the Building, or in the
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Demised Premises (any of which shall be considered a sign for purposes of this
Lease) if the same can be seen through the exterior windows of the Building
without the prior written approval of the Landlord in each instance. Tenant
shall not display, erect or maintain any sign which does not comply with all
applicable governmental or quasi-governmental laws, ordinances, rules and
regulations and all the terms and provisions of this Lease including, but not
limited to, Article 8 hereof. Tenant shall, at its sole cost and expense,
install, insure, operate and maintain all such signs in good order, condition,
appearance and repair. In addition, Tenant shall pay to Landlord as Additional
Rent a review fee, as established pursuant to paragraph 8 (n) of Exhibit B, and
provided that Tenant's proposed signage complies in all respects with applicable
codes of the City of Stamford, Landlord's signage review fee for any given
proposed sign shall not exceed the sum of $500. The Landlord's signage review
fee shall be an eligible Allowance expense. Tenant, at its sole cost and
expense, shall furnish and install its identification signage in its lobby.
Landlord shall pay for the initial Building standard signage for Tenant on the
sixth (6th) floor of the Building and in the Building lobby directory. In the
event Tenant shall ever request changes or additions to the Building standard
signage for Tenant on the sixth (6th) floor of the Building and/or in the
Building lobby directory, such changes and/or additions shall be at Tenant's
sole cost and expense. The design of such identification must conform to the
Building standard signage, be approved by Landlord, which approval shall not be
unreasonably withheld or delayed, and be fabricated and installed by a
contractor that meets with Landlord's approval. All signs installed by or on
behalf of Tenant shall on or before the Expiration Date be removed and Tenant
shall repair and restore all areas where signs have been installed to the
condition in which they existed prior to the making of the installation. The
insurance required to be maintained by Tenant under Article 11 shall provide
coverage for all signs wherever located.
Section 22.5. Entire Agreement. Neither Landlord nor Landlord's
agents have made any representations or promises with respect to the physical
condition of the Project, the Building, the Demised Premises, permissible uses
of the Demised Premises, the rents, leases, expenses of operation, or any other
matter or thing affecting or related to the Demised Premises, except as
expressly set forth in this Lease. No rights, easements or licenses are acquired
by Tenant by implication or otherwise except as expressly set forth in this
Lease. All understandings and agreements previously made between the parties are
merged in this contract, which alone fully and completely expresses the
agreement between Landlord and Tenant. Any executory agreement made shall be
ineffective to modify, discharge or surrender this Lease or the Demised Premises
or any interest of Tenant in same unless such executory agreement is in writing
and signed by Landlord and Tenant.
Section 22.6 Severability. If any provision of this Lease is found
by a court of competent jurisdiction to be illegal, invalid or unenforceable,
the remainder of this Lease shall not be affected, and, at Landlord's option, in
lieu of each provision which is found to be illegal, invalid or unenforceable,
there will be deemed added, as a part of this
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Lease, a provision as similar to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
Section 22.7. Brokers.
(a) Tenant represents that it was represented by The Galbreath
Company, having an address of 177 Broad Street, Stamford, Connecticut ("Tenant's
Broker") in connection with this Lease and that no broker or agent, other than
Tenant's Broker, represented Tenant in any way in connection with this Lease or
brought the Building or Project to the Tenant's attention and that Tenant had no
conversations, negotiations or dealings with any broker or agent in connection
with this Lease other than Tenant's Broker and Landlord's Broker (defined
below).
(b) Landlord represents that no broker or agent other than
Rostenberg-Doern/ESG, of Stamford, Connecticut ("Landlord's Broker") represented
Landlord in connection with the negotiation of this Lease. Landlord shall pay
the commissions owed Landlord's Broker and Tenant's Broker by reason of this
Lease.
(c) Tenant acknowledges that Landlord shall not be obligated to
pay any commission or fee to any broker or real estate agent in connection with
the negotiation or execution of this Lease other than one commission to Tenant's
Broker and one commission to Landlord's Broker.
(d) Landlord shall have no obligation to pay any real estate agent's
or broker's commission, other than one (1) brokerage commission to (1) one
designated Tenant's Future Broker (as such term is defined below) and one (1)
brokerage commission to one (1) designated Landlord's broker, if any has been so
designated by Landlord, on account of or by reason of the following
transactions: (i) Tenant's exercise of its option to extend the Term pursuant to
the terms of Rider 1 (Option to Extend Term) herein, or (ii) any other extension
or renewal of the Term of this Lease or any lease, by Tenant, of any space in
the Project other than pursuant to the terms of the rights and options referred
to in (i) - (ii) above, provided, however, that LANDLORD SHALL ONLY BE OBLIGATED
TO PAY ONE SUCH TENANT'S REAL ESTATE BROKER'S OR AGENT'S COMMISSION WITH RESPECT
TO ANY OF THE FOREGOING TRANSACTIONS IN THE EVENT THAT (1) TENANT HAS PROVIDED
LANDLORD WITH WRITTEN NOTICE SPECIFYING AND IDENTIFYING TENANT'S ONE BROKER FOR
THE SUBJECT OF THE TRANSACTION SIMULTANEOUS WITH (A) TENANT'S DELIVERY OF A
TENANT'S EXTENSION NOTICE TO LANDLORD PURSUANT TO THE TERMS OF RIDER 1 HEREOF,
OR (B) TENANT'S COMMENCING ANY NEGOTIATIONS WITH LANDLORD RELATIVE TO ANY OTHER
LEASING TRANSACTION PERTAINING TO THE DEMISED PREMISES OR ANY OTHER SPACE IN THE
PROJECT, (2) such designated Tenant's broker actually participates in the
negotiations with Landlord relative to the subject leasing transaction, (3) such
designated Tenant's broker and Landlord enter into a mutually acceptable leasing
commission agreement, and (4) Tenant and Landlord enter into a valid
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and binding lease or lease amendment respecting such leasing transaction (the
designated Tenant's broker for any of the foregoing transactions where all
conditions to the payment of a commission to such designated Tenant's broker
have been fulfilled is herein referred to as the "Tenant's Future Broker").
(e) Tenant hereby agrees to indemnify, defend and hold the Landlord
harmless from and against any and all costs, claims, expenses or liability for
commissions or other compensation and charges (including reasonable attorneys'
fees and court costs) claimed by any broker, agent or other person or entity,
other than as may be owed to Tenant's Broker disclosed in subparagraph (a)
above, claiming to have represented Tenant with respect to this Lease. Tenant
hereby further agrees to indemnify, defend and hold Landlord harmless from and
against any and all costs, claims, expenses or liability for commissions or
other compensation and charges (including reasonable attorneys' fees and court
costs) claimed by any broker, agent or other person or entity claiming to have
represented Tenant in connection with Tenant's exercise, subsequent to the date
hereof, of any right of Tenant or with respect to any other leasing transaction
referred to in subparagraph (d) above, other than any commission which Landlord
may agree to pay a Tenant's Future Broker pursuant to the terms of a written
brokerage agreement entered into between Landlord and such Tenant's Future
Broker.
(f) Landlord hereby agrees to indemnify, defend and hold the Tenant
harmless from and against any and all costs, claims, expenses or liability for
commissions or other compensation and charges (including reasonable attorneys'
fees and court costs) claimed by any broker, agent or other person or entity
claiming to have represented Landlord in connection with this Lease. Landlord
hereby further agrees to indemnify, defend and hold Tenant harmless from and
against any and all costs, claims, expenses or liability for commissions or
other compensation and charges (including reasonable attorneys' fees and court
costs) claimed by any Landlord's Future Broker and Tenant's Future Broker which
is entitled to payment of a commission, pursuant to the terms of a written
brokerage agreement entered into by Landlord and such broker pursuant to the
terms of subparagraph (d) above, by reason of any future exercise by Tenant of
Tenant's Extension Option set forth in Rider 1 hereof, or by reason of any other
leasing transaction referred to in subparagraph (d) above, other than any
commissions which Tenant may agree to pay any broker claiming to have
represented Tenant.
(g) The terms and provisions of this Paragraph 11 (Brokers) shall
survive the expiration or sooner termination of this Lease.
Section 22.8. Exculpatory Clause. All separate or personal liability
of Landlord or any of its partners, officers, directors, employees and/or joint
ventures, is hereby waived by Tenant, and by every person now or hereafter
claiming by, through or under Tenant, and Tenant agrees that it shall look
solely to Landlord's interest in the
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Building for the payment or other satisfaction of any claim against Landlord. In
the event Landlord shall bring any legal or equitable action against the
original named Tenant herein seeking to enforce the terms of this Lease, then
for so long as the original named Tenant herein shall maintain its existence as
a corporation, duly existing and in good standing, Landlord shall not seek to
hold the officers, directors, shareholders or employees of the original named
Tenant herein liable for any default of the Tenant under the terms of this
Lease. The provisions of the preceding sentence shall not apply to any assignee
of the original named Tenant herein.
Section 22.9. No Recording; Notice of Lease. Tenant shall not record
this Lease or any portion hereof or reference to this Lease. In the event Tenant
violates this prohibition against recording, at Landlord's option, this Lease
shall terminate or Landlord may declare Tenant in default under this Lease and
pursue any and all of Landlord's remedies provided in this Lease.
Notwithstanding the foregoing, Landlord and Tenant shall execute and deliver
within sixty (60) days of the execution of this Lease duplicate originals of an
instrument, in recordable form, which will constitute a statutory Notice of
Lease, setting forth a description of the Demised Premises, the Term and any
other provisions required by statute, as Landlord may request. This instrument
shall be recorded in the Land Records of the City of Stamford, Connecticut, by
Landlord. Upon the Expiration Date or sooner termination of this Lease, Tenant,
upon Landlord's request, shall promptly execute and deliver an instrument in
recordable form terminating such Notice of Lease. The terms of this Section 22.9
shall survive the expiration or sooner termination of this Lease.
Section 22.10. Financial Information. Upon Landlord's request,
initially and thereafter annually during the Term hereof, Tenant shall provide
Landlord with evidence satisfactory to Landlord regarding such financial
(audited and unaudited) and descriptive information concerning Tenant and/or any
entity occupying any portion of the Demised Premises and such entity's business
as Landlord may deem necessary or desirable. If audited financial statements are
not prepared for Tenant or such approved assignee or sublessee for any given
Lease Year or Lease Years during the Term hereof, then Tenant shall provide
Landlord with such other reasonably descriptive unaudited financial reports,
including all footnotes, of Tenant's business prepared in accordance with
generally accepted accounting principals and certified by the Tenant's Chief
Financial Officer or, at Tenant's election in lieu of such unaudited financial
reports, Tenant may provide Landlord with complete copies of Tenant's signed and
filed federal income tax returns for such Lease Year(s) Landlord shall hold all
such financial information in strict confidence and shall not disclose the same
to any party, other than to Landlord's personnel, attorneys, agents and existing
and prospective lenders and purchaser, who shall be instructed to respect the
confidentiality of such financial information.
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Section 22.11. Light and Air. Tenant covenants and agrees that no
diminution of light, air or view by any structure which may hereafter be erected
(whether or not by Landlord) shall entitle Tenant to any reduction of Rent under
this Lease, result in any liability of Landlord to Tenant, or in any other way
affect this Lease or Tenant's obligations hereunder.
Section 22.12. Inability to Perform. This Lease and the obligation
of Tenant to pay Rent and other payments required hereunder and to comply with
all of the other provisions of this Lease, shall in no way be affected, impaired
or excused because Landlord is delayed in supplying any service expressly or
impliedly to be supplied, or is unable to make or is delayed in making any
repair, additions, alterations or decorations, or is unable to supply or is
delayed in supplying any equipment or fixtures, or is unable to fulfill or is
delayed in fulfilling any other obligation hereunder, if Landlord is so
prevented or delayed by reason of Force Majeure, provided that Landlord uses all
reasonable and commercially feasible efforts to fulfill all such obligations
despite such Force Majeure and in all events as promptly as possible after the
Force Majeure giving rise to such prevention or delay ceases to exist
Section 22.13. Waiver of Counterclaims; Waiver of Jury Trial, Etc.
(a) Tenant waives Tenant's rights, if any, to assert a counterclaim
in any summary proceeding brought by Landlord against Tenant, and Tenant agrees
to assert any such claim against Landlord only by way of a separate action or
proceeding, unless such counterclaim would be deemed waived or banned if not
brought by Tenant in such summary proceeding.
(b) Tenant waives Tenant's rights, if any, to designate the items
against which any payments made by Tenant are to be credited, and Tenant agrees
that Landlord may apply any payments made by Tenant to any items it sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to
the items against which any such payments shall be credited.
(c) Waiver of Jury Trial. To the extent not prohibited by applicable
law, Landlord and Tenant hereby waive trial by jury in any action, proceeding or
counterclaim brought by either against the other or any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, or Tenant's use or occupancy of the Demised Premises, or
any emergency or other statutory remedy with respect thereto.
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Section 22.14. No Surrender. The delivery of keys to Landlord, an
employee of Landlord or its agent shall not operate as a termination of this
Lease or a surrender of the Demised Premises. Landlord or its agent is
authorized to receive Tenant's keys for any purposes without releasing Tenant
from any of its obligations under this Lease.
Section 22.15. Modification of Lease. If, in connection with
obtaining, continuing or renewing financing for the Project or any part thereof
(or a leasehold or any other interest therein) whereby the Project represents
collateral in whole or in part, a bank, insurance company or other lender shall
request modifications of this Lease as a condition of such financing, Tenant
will not withhold, delay or defer its consent thereto, provided that such
modifications do not increase the Rent and other financial obligations of Tenant
hereunder and do not increase the non-monetary obligations of Tenant (other than
to a de minimis extent) hereunder or adversely affect to a material degree the
Tenant's leasehold interest hereby created. Landlord shall pay Tenant's
reasonable, out-of-pocket attorney's fees incurred by Tenant in connection with
Tenant's compliance with any request made by Landlord under this Section 22.15.
Section 22.16. Headings. The Article and Section headings in this
Lease and the Table of Contents prefixed to this Lease are inserted only as a
matter of convenience or reference and are not to be given any effect whatsoever
in construing this Lease
Section 22.17. Parking. (a) Notwithstanding anything to the contrary
contained herein, Landlord shall not be responsible or liable for any damage,
loss, collision, theft or vandalism to any automobiles parked at the parking
facilities at the Project, or to any personal property or contents of such
automobiles. The use of the parking facilities at the Project by Tenant or
Tenant's agents, employees, contractors, invitees or licensees shall be at their
sole risk, and all such parties hereby release Landlord from any and all claims,
costs or liabilities, for any damage, loss, collision, theft or vandalism to
such automobiles or personal property, however caused. The provision of security
services shall not be deemed to be a waiver of this subsection or to create any
liability upon or any estoppel against Landlord. Tenant and Tenant's agents,
employees, contractors, invitees and licensees shall be required to park, secure
and lock their own automobiles at all times while such automobiles are at the
parking facilities at the Project, and to comply with such parking rules and
regulations as may be prescribed by Landlord from time to time and to any
reasonable modifications and/or additions thereto.
(b) There shall not be overnight parking at the Project except in
the Overnight Parking Area, if any, the size and location of which may be
designated, from time to time, by Landlord. Any Overnight Parking Area
designated by Landlord shall be located in the Building garage. Tenant's
employees may only park personal, passenger motor-vehicles in such designated
Overnight Parking Area to facilitate business travel only
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and for no more than five (5) consecutive business days at any one time,
provided that Tenant provides Landlord with no less than twenty-four (24) hours
prior notice of Tenant's need for such Overnight Parking. Tenant's notice shall
specify the name of the owner and the make, model and license plate number for
cars to be parked in the Overnight Parking Area. Tenant's employees may not use
the Overnight Parking Area to park motor vehicles while on vacation. Except as
expressly provided above, Tenant shall, and shall cause its personnel and
visitors to, remove all automobiles from the parking area at the end of Normal
Business Hours. If any automobile owned by Tenant or by its personnel or
visitors remains in the parking area overnight and the same interferes with the
cleaning or maintenance of said area (including, without limitation, snow
removal), any costs or liabilities incurred by Landlord in removing said
automobile to effectuate cleaning or maintenance, or any damages resulting to
said automobile or to Landlord's equipment or equipment owned by others by
reason of the presence or removal of said automobile shall be paid by Tenant to
Landlord, as Additional Rent. Tenant and Tenant's employees may only park
passenger motor vehicles in the Project parking areas. No motor-homes,
recreational vehicles, buses or commercial vehicles may be parked in the Project
parking areas.
(c) Landlord shall furnish Tenant with two and one/half (2.5)
passenger motor-vehicle parking garage/lot use cards per 1,000 rentable square
feet in the Demised Premises. If any such key card is lost, damaged or
misplaced, Tenant shall pay a fee established by Landlord for its replacement,
which fee shall initially be $15.00.
Section 22.18. Authority. Each of the individuals executing this
Lease on behalf of Tenant warrants and represents individually to Landlord that
Tenant is a duly authorized and existing corporation, qualified to do business
in the State of Connecticut, that Tenant has the full right and authority to
enter into this Lease, and that each and every individual signing on behalf of
Tenant is duly authorized to do so. Tenant will provide evidence reasonably
satisfactory to Landlord confirming these representations.
Section 22.19. Opinions of Counsel, Etc. Upon execution of this
Lease, Tenant shall deliver an opinion of Tenant's counsel reasonably acceptable
to Landlord confirming that Tenant is a duly authorized and existing corporation
qualified to do business in the State of Connecticut, that Cardmember Publishing
Corporation changed its name to Memberworks Incorporated, pursuant to a
Certificate of Name Change, dated August 15, 1996 and filed with the Secretary
of State for the State of Delaware on August 15, 1996, and that each of the
individuals executing this Lease on behalf of Tenant is authorized to do so.
Tenant shall also furnish a certified copy of its corporate resolutions
authorizing this Lease, a recent good standing certificate from Delaware and
Connecticut and a Secretary's incumbency certificate attesting to the authority
and position of the signatory of this Lease.
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Section 22.20. Lease Condition; Mortgagee Notice.
(a) This Lease is expressly conditioned upon Landlord's receiving
the consent and approval of Landlord's mortgagee to its terms and provisions.
Landlord's mortgagee shall review a final execution copy of the Lease once
finalized by the parties hereto and shall either approve or comment on said
draft prior to its execution. Should said consent not be received, Landlord may,
at Landlord's option, cancel this Lease and return any rent which Tenant has
deposited with Landlord upon execution of this Lease, and thereafter the parties
shall have no further obligations to each other with respect to this Lease. If,
however, Landlord believes that such consent is forthcoming, Landlord may
unilaterally extend the 30-day time period by such amount of time as it believes
appropriate.
(b) Tenant agrees to give to People's Bank at the following address:
350 Bedford Street, Stamford, Connecticut 06901-1741 and to the holder of any
other interest to which this Lease is or may hereafter become subordinate, a
copy of any notice of default served by Tenant upon Landlord provided that,
prior to such notice, Tenant has been notified in writing (by way of notice of
assignment or otherwise) of the address of such holder(s). Tenant further agrees
that, if Landlord shall have failed to cure such default within the time
provided for in this Lease then such holder(s) shall have an additional sixty
(60) days within which to cure such default or if such default cannot be cured
within that time then such additional time as may be necessary if within such
sixty (60) days any such holder has commenced and is diligently pursuing the
remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings, if necessary to effect such cure) in
which event this Lease shall not be terminated while such remedies are being so
diligently pursued.
Section 22.21. Joint and Several Liability. If Tenant is composed of
more than one (1) signatory to this Lease, each such signatory will be jointly
and severally liable for the fulfillment and performance by Tenant of the terms
and provisions of this Lease.
Section 22.22. No Offer. It is understood and agreed that this Lease
is submitted to Tenant on the understanding that it shall not be considered an
offer and shall not bind Landlord in any way until (a) Tenant has duly executed
and delivered duplicate originals to Landlord and (b) Landlord has executed and
delivered one (1) of said originals to Tenant.
Section 22.23. Security. Landlord shall maintain security for the
Common Areas and the parking areas of the Project in a manner reasonably
consistent with Class-A office building standards as determined in Landlord's
judgment. Tenant expressly acknowledges that Landlord shall not be deemed to
have warranted the efficiency of any such security personnel, service,
procedures or equipment and Landlord shall not be liable
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in any manner for the failure of any such security personnel, procedures or
equipment to prevent or control, or apprehend anyone suspected of personal
injury, property damage or any criminal conduct in, on or around the Building or
Project.
Section 22.24. Construction. This Lease represents the result of
negotiations between Landlord and Tenant, each of which has been (or has had
opportunity to be) represented by counsel of its own selection, and neither of
which as acted under duress or compulsion, whether legal, economic or otherwise.
Consequently, Landlord and Tenant agree that the language in all parts of this
Lease shall in all cases be construed as a whole according to its fair meaning
and neither strictly for or against Landlord or Tenant. Further, the rule of
"ejusdem generis" shall not apply in construing the provisions of this Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as
of the date first above written.
LANDLORD:
STAMFORD TOWERS LIMITED
PARTNERSHIP,
a Delaware limited partnership
By Stamford Towers, Inc.,
a Delaware corporation,
as General Partner
By: /s/ Regina Hertz
----------------------------------
Name: Regina Hertz
----------------------------------
Its: President
----------------------------------
TENANT:
MEMBERWORKS INCORPORATED,
a Delaware corporation
By: /s/ James B. Duffy
----------------------------------
Name: James B. Duffy
Its: Secretary & Treasurer
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RIDER 1
TO LEASE BETWEEN
STAMFORD TOWERS LIMITED PARTNERSHIP
AND
MEMBERWORKS INCORPORATED
OPTION TO EXTEND THE TERM
Option to Extend the Term. (a) Provided Tenant is not in default of
the terms, covenants and conditions of this Lease either at the time of its
exercise or as of the Expiration Date, and the Tenant named in Article 1 is in
occupancy of the entire Demised Premises (as the same may have been expanded,
reduced or otherwise modified by written amendment to this Lease) at each such
time, Tenant shall be entitled to an extension of the Term (the "Extension
Term") for one period of five (5) years, beginning on the day after the
Expiration Date; provided, however, that Tenant shall have given Landlord
written notice (hereafter referred to as "Tenant's Extension Notice") of
Tenant's election to extend not more than two (2) years and not less than one
(1) year prior to the Expiration Date, with time being of the essence as to such
dates.
SIMULTANEOUS WITH TENANT'S DELIVERY OF TENANT'S EXTENSION NOTICE TO
LANDLORD, TENANT SHALL PROVIDE LANDLORD WITH WRITTEN NOTICE IDENTIFYING AND
SPECIFYING TENANT'S BROKER (IF ANY) FOR THE TRANSACTION WHICH IS THE SUBJECT OF
THIS RIDER 1, AS REQUIRED UNDER THE TERMS OF SECTION 22.7 (d) HEREIN.
The Extension Term shall be upon the same covenants and conditions
as those contained in the Lease, except as follows: The Annual Fixed Rent shall
be as provided in Paragraph (b) of this Rider 1; Landlord shall have no
obligation to perform any fit-out or other preparatory work to the Demised
Premises or to provide any allowances or concessions therefor; and Tenant shall
have no further option to extend the Term of the Lease. If Tenant does not
fulfill any of the notice requirements described in this Rider 1, Tenant's
option to extend the Term shall be of no further force or effect.
(b) The Annual Fixed Rent for the Extension Term ( the "Extension
Rent") shall be determined as follows: Upon Landlord's receipt of Tenant's
timely notice of Tenant's election to extend, Landlord and Tenant shall have a
period of twenty (20) days within which to reach agreement as to what
constitutes the Extension Rent, which shall be One Hundred Percent (100%) of the
then fair market rental value for comparable, Class-A office space in the
downtown Stamford, Connecticut, business district. The determination of fair
market rent hereunder shall reflect and include, inter alia, any Tenant's
broker's
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commissions which Landlord may be required to pay in connection with
Tenant's exercise of this extension option. If the parties are unable to agree
upon a fair market rental value within such twenty (20) day period, then Tenant
may, upon notice delivered to Landlord within five (5) days after the expiration
of such twenty (20) day period (with time being of the essence as to such date),
revoke its exercise of the Option to Extend the Term in which event this Lease
shall expire on the stated Expiration Date.
If Tenant does not revoke its exercise of such option, then Landlord
shall be obligated to lease the Demised Premises to the Tenant for the Extension
Term and Tenant shall be obligated to lease the Demised Premises from Landlord
for the Extension Term on the terms and conditions set forth herein and the
matter of the Extension Rent shall be resolved by binding arbitration in
Stamford, Connecticut as follows: Landlord and Tenant shall, within ten (10)
days of the expiration of such twenty (20) day period, each appoint an
arbitrator who shall promptly confer with each other and attempt to make a joint
determination of Extension Rent. No arbitrator appointed hereunder may be an
individual real estate broker or real estate agent who has represented either
party hereto or any previous Tenant in connection with this Lease or with any
other real estate transactions. Further, all arbitrators appointed hereunder
must first agree that they will be compensated for their services hereunder only
by payment of a reasonable and customary hourly rate for their time expended on
this matter. If such arbitrators are able, within ten (10) days of their
appointment, to agree upon Extension Rent they shall notify Landlord and Tenant
in writing of their joint determination which, absent fraud, bad faith, coercion
or other misdeed, shall be binding upon Landlord and Tenant. If such arbitrators
shall fail to reach a joint determination of Extension Rent within such ten (10)
day period, then such arbitrators shall immediately (1) prepare detailed written
statements of the reasons for their determinations of Extension Rent, (2)
designate a third arbitrator, and (3) submit copies of each such determination
described in clause (1) hereof to Landlord, Tenant and such third arbitrator. If
the two arbitrators shall fail to agree upon the designation of such third
arbitrator within five (5) days, either party may apply to the American
Arbitration Association in Connecticut or any successor organization thereto
having jurisdiction and having offices in Connecticut, for the designation of
such third arbitrator. The third arbitrator shall conduct such hearings and
investigations as (s)he may deem appropriate and shall, within ten (10) days
after the date of his/her designation, choose the determination of the two
arbitrators who were originally selected by the parties which is the nearest to
the determination such third arbitrator would have made acting alone, and that
choice by the third arbitrator absent fraud, bad faith, coercion or other
misdeed shall be conclusively binding upon Landlord and Tenant. Each party shall
pay its own counsel fees and expenses, if any, in connection with any
arbitration under this subparagraph (b), including the expenses and fees of any
arbitrator selected by it in accordance with the provisions of this Paragraph 2,
and the parties hereto shall share equally all other expenses and fees of any
such arbitration, including, but not limited to, the fees of the third
arbitrator who may be appointed hereunder. Each arbitrator under this paragraph
shall (i) have at
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least ten (10) years experience in the real estate leasing industry in Stamford,
Connecticut, and (ii) be familiar with the commercial real estate market in the
Stamford, Connecticut area. When the Extension Rent has been determined, the
parties hereto, on request of either of them, shall enter into a signed, written
stipulation with respect to the amount thereof and setting forth the expiration
date of such Extension Term.
(c) If Tenant possesses or occupies all or any part of the Demised
Premises after the Expiration Date without properly exercising its option to
extend (or after the expiration of the Extension Term), without receipt of
Landlord's prior consent, Tenant shall be deemed to be "holding over" and the
terms and provisions of Article 18 (Holding Over) of the Original Lease shall
apply. If Tenant has properly exercised its option to extend, pursuant to this
Rider 1, Tenant shall not be deemed to be "holding over" and the terms and
provisions of Article 18 (Holding Over) of the Original Lease shall not apply
even if the Extension Rent has not been finally determined prior to the
expiration of the initial Term of the Lease, providing that Tenant is not the
cause of any delay in the final determination of the Extension Rent. If Tenant
has properly exercised its option to extend the term of this Lease, pursuant to
this Rider 1 and the Extension Rent for the Extension Term has not been finally
determined by the first day of the Extension Term, then Landlord shall be
obligated to lease the Demised Premises to the Tenant for the Extension Term on
the terms and conditions set forth herein and Tenant shall be obligated to lease
the Demised Premises from Landlord for the Extension Term on the terms and
conditions set forth herein and until the Extension Rent shall be finally
determined pursuant to subparagraph (b) above, the Tenant shall pay Landlord (1)
Fixed Rent during the Extension Term at the rate initially proposed by Landlord
as the fair market rental rate for the Demised Premises at the time Tenant
exercised its option to extend the Term of this Lease pursuant to this Rider 1,
and (2) Additional Rent as provided in the Lease. Within twenty (20) days of the
date that the Extension Rent shall be finally determined under subparagraph (b)
above, the Landlord shall remit to Tenant any overpayment of Fixed Rent for the
Extension Term and the Tenant shall remit to Landlord any underpayment of Fixed
Rent for the Extension Term prior thereto.
(d) Each arbitrator under this subparagraph (d) is hereby instructed
in determining Extension Rent to give whatever weight (s)he deems appropriate to
the fact that Extension Rent is being determined for a five (5) year Extension
Term.
(e) Unless Tenant shall agree with Landlord, in writing, not later
than sixty (60) days prior to the Tenant's exercise of its option to extend
hereunder to be solely responsible for the payment of any Landlord's broker and
any Tenant's broker, the payment of Landlord's broker shall be in the form of a
renewal commission, if any, and the payment of Tenant's broker shall be in the
form of a renewal commission, if any.
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[FLOORPLAN]
<PAGE> 81
EXHIBIT A
FLOOR PLAN SHOWING DEMISED PREMISES
EXHIBIT A-1
DESCRIPTION OF PROJECT
All those two certain parcels of land together with the buildings thereon,
situated in the City of Stamford, County of Fairfield, and State of Connecticut,
bounded and described as follows:
Parcel 1
All that certain piece, parcel or tract of land located in the City of Stamford,
County of Fairfield and State of Connecticut shown and designated on a certain
map entitled "Property Surveyed for: Stamford Towers Limited Partnership
Location: Washington Boulevard, Division Street and Clinton Avenue, Stamford,
Connecticut" which map is to be filed in the office of the Town Clerk of the
City of Stamford, reference thereto being hereby had.
Said premises as shown on said map are bounded and described as follows:
Commencing at a point where the westerly line of Washington Boulevard intersects
the northerly line of Division Street in the City of Stamford, County of
Fairfield and State of Connecticut and proceeding thence north along Division
Street N 79 degrees 42 minutes 20 seconds W a distance of 464.21 feet to Clinton
Avenue, thence along the easterly line of Clinton Avenue N 8 degrees 46 minutes
E a distance of 171.62 feet to land of Alice Rinck Ricklefs, thence proceeding S
81 degrees 35 minutes E 137.75 feet, thence N 18 degrees 40 minutes E 17.10
feet, thence N 9 degrees 3 minutes E 21.61 feet to land of Connecticut
Newspapers, Inc., thence southeasterly, northeasterly and again southeasterly
along land of Connecticut Newspapers, Inc. the following courses and distances:
S 81 degrees 30 minutes E a distance of 3 feet, thence N 17 degrees 3 minutes 30
seconds E a distance of 21.04 feet, S 77 degrees 18 minutes E a distance of
234.92 feet and S 77 degrees 47 minutes E a distance of 176.36 feet to
Washington Boulevard, thence proceeding S along the arc of a curve with a radius
of 441.24 feet a distance of 104.345 feet to land of Zarouhi N. Saradjian,
thence proceeding N 78 degrees 27 minutes W a distance of 161.60 feet, thence S
9 degrees 11 minutes 40 seconds W a distance of 60.05 feet, thence S 78 degrees
27 minutes E a distance of 133.74 feet to Washington Boulevard, thence
proceeding south along the westerly line of Washington Boulevard on the arc of a
curve with a radius of 441.24 feet a distance of 46.93 feet and proceeding south
along the arc of a curve with a radius of 497.85 feet a distance of 22.74 feet
to the point or place of beginning.
<PAGE> 82
Said premises are conveyed together with all of mortgagor's rights in and to the
southerly 3'9" area of the property owned by Alice R. Ricklefs adjoining the
premises as shown on the above referenced map and as reserved in a deed from
Emil Zantow to Harry C. Purdy dated November 9, 1920 and recorded in Book 239
Page 389 of the Stamford Land Records.
Parcel 2
All that certain piece, parcel or tract of land situated in the City of
Stamford, County of Fairfield and State of Connecticut shown and designated on a
certain map entitled "Map Showing a Consolidation of Properties Prepared for
Louis DeBeradinis, Stamford, Connecticut" which map is on file in the office of
the Town Clerk of the City of Stamford and numbered 11597 reference thereto
being hereby had.
Said premises as shown on said map are bounded and described as follows:
Beginning at a point where the southerly line of Division Street intersects the
westerly line of Washington Boulevard in the City of Stamford, County of
Fairfield, and State of Connecticut and proceeding south along the westerly line
of Washington Boulevard on the arc of a curve with a radius of 497.85 feet for a
distance of 218.307 feet, thence proceeding S O degrees 18 minutes 35 seconds W
a distance of 59.68 feet, thence proceeding S 89 degrees 39 minutes W a distance
of 192.24 feet to land now or formerly of Fannie Fishman and proceeding thence N
1 degree, 39 minutes E a distance of 139.20 feet, thence S 88 degrees 59 minutes
W a distance of 3.96 feet, thence proceeding N 1 degree 51 minutes 40 seconds W
a distance of 132.63 feet to the southerly line of Division Street, thence
proceeding along the southerly line of Division Street N 89 degrees 30 minutes
50 seconds E a distance of 59.17 feet and S 89 degrees 56 minutes 40 seconds E a
distance of 185.89 feet to the point or place of beginning.
Said Parcels 1 and 2 being the same premises as conveyed in Warranty Deed from
Louis DeBeradinis to Edward Feldman, Trustee, dated October 30, 1986, and
recorded on October 30, 1986, at 3:52 p.m. in the Stamford Land Records.
2
<PAGE> 83
EXHIBIT A-2
HOLIDAYS
New Year's Day*, Martin Luther King's Birthday, President's Day, Memorial Day,
Independence Day*, Labor Day, Columbus Day, Thanksgiving Day, Day after
Thanksgiving, Christmas Day*.
- --------
* To be included in Holidays if it falls on a weekday. If it falls on a
Saturday, the immediately preceding Friday shall be included in Holidays.
If it falls on a Sunday, the immediately following Monday shall be
included in Holidays.
<PAGE> 84
EXHIBIT B
WORK LETTER
(April 1997)
1. Tenant's Work. Tenant shall perform such work to the
Demised Premises as may be necessary or desirable for Tenant's initial use and
occupancy of the Demised Premises including, but not limited to, any electrical,
plumbing, air-conditioning, mechanical or structural work to meet Tenant's
requirements ("Tenant's Work") in accordance with the provisions of this Work
Letter and, to the extent not expressly inconsistent herewith, in accordance
with the provisions of the Lease, including, without limitation, Article 3 and
Article 9 thereof. Performance of Tenant's Work shall not serve to abate or
extend the date for commencement of Rent under the Lease. Landlord agrees to
cooperate with Tenant to expedite the performance of Tenant's Work and shall
make its Building Manager available to Tenant for reasonable periods of time
between the hours of 9:00 a.m. to 5:00 p.m., Mondays to Fridays, and upon
reasonable advance notice, provided Tenant pays, as Additional Rent, all actual
costs and expenses incurred by Landlord in so doing.
2. Work Costs.
(a) Except as otherwise provided herein and in the Lease,
Tenant shall pay all costs (the "Work Costs") associated with Tenant's Work
whatsoever, including, without limitation, all costs for permits, approvals,
authorizations, inspections, space planners, interior designers, architects,
engineers, and contractors, utility connections, labor, materials, bonds,
insurance, and any structural or mechanical work, additional HVAC and control
equipment or sprinkler heads, modifications to any Building mechanical,
electrical, plumbing or other systems or equipment, or relocation of any
existing sprinkler heads, required as a result of the layout, design, or
construction of Tenant's Work.
(b) Tenant shall submit to Landlord a final line item
budget of all Work Costs (a "Budget") for any proposed Tenant's Work which shall
be subject to the reasonable approval of Landlord and its lender. Tenant shall
make any changes to the Budget as may reasonably be requested by either or both
such part(ies). Any material decrease in the Budget as a whole or in one or more
line items shall be subject to the approval of Landlord and its lender.
(c) Allowance amount. LANDLORD SHALL PAY TENANT, SUBJECT TO
THE TERMS OF THE LEASE, INCLUDING THE PROVISIONS OF ARTICLE 3 THEREOF AND THIS
SECTION 2 (c), UP TO THE AGGREGATE AMOUNT OF EIGHTY-NINE THOUSAND SEVEN HUNDRED
SIXTY DOLLARS ($89,760) (BASED UPON TEN DOLLARS ($10.00) PER RENTABLE
<PAGE> 85
SQUARE FOOT AND 8,976 RENTABLE SQUARE FEET BEING IN THE DEMISED PREMISES)
(HEREINAFTER REFERRED TO AS THE "ALLOWANCE") of the Work Costs incurred by
Tenant in connection with the Tenant's Work which shall be undertaken by Tenant
in accordance with the Space Plan (as defined herein) approved by Landlord prior
to the execution of this Lease (subject to change orders and modifications
subsequently approved by Landlord) for the initial fit- up of the Demised
Premises to ready the Demised Premises for Tenant's initial occupancy thereof.
The Allowance shall be paid to Tenant in installments upon presentation by
Tenant, no more than once in each calendar month, of a certificate of an officer
of Tenant specifying the Work Costs incurred on a line item basis since the last
such presentation (if any) and certifying that all Tenant's Work during such
period has been completed in conformity with the plans approved by Landlord in
writing and in accordance with the provisions hereof; provided, however, that no
more than $3.50 per rentable square foot of the Allowance shall be paid to
Tenant on account of the costs, fees and expenses of space planners, architects
and engineers. No payment shall be made on any request which would cause the
aggregate amount of the Allowance paid on any line item to exceed materially the
amount provided for such item in the Budget. Landlord shall be entitled to any
rebate, credit or refund for any items included in Work Costs for which an
Allowance installment is sought (including, without limitation, any rebate,
credit or refund from any public utilities). The amount of such rebate, credit
or refund shall not be deducted from the Allowance or Work Costs for which an
Allowance installment may be paid. Tenant, as a condition of the payment of each
installment of the Allowance, shall submit, together with its certificate, all
invoices, lien waivers, AIA form architects' certificates, and such other
evidence as Landlord and/or its lender may reasonably require showing that the
Tenant's Work giving rise to such Work Costs has been fully completed, and that
no mechanic's, materialmen's or other such liens have been or may be filed
against the Building or the Demised Premises arising out of the design or
performance of Tenant's Work. If any such liens are filed, Tenant shall cause
the same to be removed and/or secured by the posting of a bond as provided in
Article 9 of this Lease, failing which Landlord shall have the remedies
available under the Lease including, without limitation, those set forth in
Article 9. After satisfaction of such payment conditions, for each installment
of the Allowance, Landlord shall pay to Tenant ninety percent (90%) of the
certified Work Costs for the period in question. The remaining ten percent (10%)
of each such installment shall be retained by Landlord until such time as
Tenant's Work has been fully completed to the reasonable satisfaction of
Landlord and Landlord's lender, and there have been delivered to Landlord final
lien waivers, AIA form architects' certificates and such other evidence as
Landlord and/or its lender may reasonably require showing that all of Tenant's
Work has been fully completed and that none of the aforementioned liens have or
may be filed (the "Retainage Release Conditions"). All amounts retained shall be
paid by Landlord to Tenant within thirty (30) days after fulfillment of the
Retainage Release Conditions therefor and Tenant's submission of appropriate
evidence of the satisfaction of the Retainage Release Conditions, as determined
by Landlord, in its reasonable judgment, and any Landlord lender.
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<PAGE> 86
Notwithstanding anything to the contrary contained
herein, the Allowance shall not be requested for or applied toward any fees or
charges payable to Tenant, directly or indirectly, for Tenant's (or any
affiliate of Tenant's) overhead, administrative expenses or profit with respect
to Tenant's Work, nor for moving expenses, furniture, furnishings, equipment or
any other items which are not customarily and properly considered capitalizable
"fit-out" costs. The Allowance may be used towards the costs of electrical
wiring for Tenant's domestic electrical use and an outlet box receptacle for
Tenant's data, communications and telephone lines. The Allowance may not be used
to pay for Tenant's moving costs, furniture or other associated soft costs or
for any of Tenant's data, communications and telephone wiring and equipment. Up
to $8,000 of the Allowance may also be used to pay for the costs of a security
system installed by Tenant in the Demised Premises in accordance with the CPG
Plans, provided such security system is a Building approved security system
which is connected to the CSI INET Building Security and Energy Management
System.
(d) Except to the extent hereafter provided, Tenant
shall pay all Work Costs in a timely manner. Any delay in or dispute concerning
the payment of the Allowance or any installment thereof shall in no manner
excuse Tenant from paying or permit Tenant to delay the payment of any Work
Costs if such failure to pay or delay in payment shall in any manner adversely
affect Landlord, its lender or either of their interests in the Project or any
part thereof.
3. Plans and Contracts, Etc.
(a) Prior to the commencement of any Tenant's Work,
Tenant shall submit to Landlord (i) one (1) set of fully dimensioned preliminary
drawings, prepared at Tenant's sole cost and expense, which shall indicate
Tenant's intentions with respect to the design of the Demised Premises,
including a floor plan which includes a fixture layout (collectively referred to
herein as the "Space Plan"), and (ii) executed architects and engineers
contracts and all related construction contracts on standard AIA forms and after
the commencement of the Tenant's Work Tenant shall promptly deliver to Landlord
any and all monthly AIA form draw requests related to payments under such
contracts and any change orders Tenant should desire to make.
(b) Landlord and Landlord's architect and/or engineer
shall review Tenant's Space Plan to help insure that Tenant's proposed design
will not conflict with, or adversely affect, the design, structure or systems of
the Building and/or the Project. If Landlord has not already done so, Landlord
shall, within ten (10) business days after receipt thereof, either approve said
Space Plan, or disapprove the same advising Tenant of the reasons for such
disapproval. In the event Landlord disapproves said Space Plan, Tenant shall
modify the same, taking into account the reasons given by Landlord for
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<PAGE> 87
said disapproval, and shall submit the revised Space Plan to Landlord within ten
(10) business days after receipt of Landlord's initial disapproval, and shall
continue to do so as necessary until the same are approved.
(c) Unless attached as an exhibit to the Lease or
otherwise previously approved in writing by Landlord, within sixty (60) days
after receipt of Landlord's approval of the Space Plan, Tenant shall submit to
Landlord four (4) sets of fully dimensioned scale drawings, hereinafter referred
to as "Working Drawings," prepared at Tenant's sole cost and expense, which
drawings shall indicate the specific requirements of Tenant's space, including
sections and details, types of materials and colors, interior partitions,
ceiling plans, plumbing fixtures and electrical plans prepared by a licensed
electrical engineer setting forth all electrical requirements of Tenant, and
Tenant shall include all drawings, specifications and bid forms of such scope as
to delineate completely the mechanical, structural, heating, ventilation,
air-conditioning, electrical and construction work to be performed. The Working
Drawings shall contain indices and notes of abbreviations and symbols and shall
include, but not be limited to, the following architectural, mechanical and
engineering drawings, details and specifications (which specifications shall be
noted on such drawings):
(i) demising and interior partition layout and
composition sufficiently dimensioned from field-verified existing Building
surfaces to be constructed (no less than 1/8" per 1'0" scale);
(ii) millwork drawings sufficiently elevated as needed
for clarity;
(iii) exit plan showing distance to primary and
alternate exits from the Demised Premises to the Building stairs or doorways;
(iv) the locations and extent of floor loadings in
excess of the design capacity of the Building and location of all floor openings
including, without limitation, any interconnecting stairwell, and all other
structural and mechanical changes;
(v) estimated total electrical requirements including,
without limitation, lighting for the entire Demised Premises showing amount,
location and type and dimensioned drawings showing the location and capacity of
electrical, telephone and other outlets and switches;
(vi) partition and reflected ceiling plans including
type and location of all electrical and mechanical devices, and showing
dimensional locations with reference to the Building columns' center lines or
other structural elements and supply and return air grills and access panels to
damper equipment and valves, and specifications for
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<PAGE> 88
special lighting fixtures, giving the length, width and height of the portion
which is to be installed above the level of the finished ceiling;
(vii) lighting plan overlaying architectural backgrounds
sufficiently detailed to be constructible (no less than 1/8" per 1'0" scale);
(vii) power plan;
(ix) electrical control plan;
(x) schedule of electrical equipment and panels
sufficiently detailed to be constructible;
(xi) the heat dissipated in each room by Tenant's
equipment;
(xii) drawings showing door locations, swings,
undercutting, size and type, and hardware and frame schedule;
(xiii) drawings showing any cabinet work, ornamental
metal work, architectural installations and details;
(xiv) drawings showing heating, ventilation and
air-conditioning requirements and system specifications (including any special
or supplementary systems), number and location of people, equipment and special
conditions;
(xv) schedules of equipment, ducts and pumps in
sufficient detail to be constructible;
(xvi) HVAC plans overlaying partition backgrounds,
dimensioned and signed to accurately depict the location of all equipment and
duct sizes (no less than 1/8" per 1'0" scale);
(xvii) elevations of potentially conflicting conditions
between HVAC and other mechanical equipment or architectural details;
(xviii) HVAC control diagrams as needed;
(xix) drawings showing specific electrical, structural,
plumbing and mechanical requirements, specifications and locations, including
engineering plans and sections;
<PAGE> 89
(xx) schedule of plumbing equipment and fixtures
contained in the plans;
(xxi) plumbing plans overlaying architectural
backgrounds sufficiently detailed to be constructible (no less than 1/8" per
1'0" scale);
(xxii) drawings showing any non-Building standard
ceiling heights and materials;
(xxiii) complete listing and specification of the
finishes, coverings, and/or treatments to be applied to all wall, ceiling and
floor surfaces, including any architectural detailing thereof, elevated as
needed for clarity;
(xxiv) drawings showing locations, structural and
electrical loads and dimensions of special equipment;
(xxv) drawings showing special fire protection and
security systems; and
(xxvi) such other plans, specifications, drawings and
details as may be needed to perform or let contracts for the performance of
Tenant's Work (including the details of all such work and the dimensional
locations and elevation thereof with respect to the Building columns' center
lines or other structural elements and details and sections of conditions
peculiar to the Demised Premises).
If any of the foregoing items is not final and complete or does not
contain all of the required information, Tenant shall supply such final and
complete and/or additional information promptly as the same are available and in
any event prior to performing any Tenant's Work. Landlord and Tenant acknowledge
that certain preliminary plans submitted by Tenant to Landlord contain some of
the above information and details.
(d) Landlord and Landlord's architect and/or engineer
shall review the Working Drawings and within ten (10) business days after
receiving the same shall either approve the same, or disapprove the same
advising Tenant of the reasons for such disapproval. If Landlord disapproves the
Working Drawings, Tenant shall promptly modify and submit revised Working
Drawings, taking into account the reasons given by Landlord for disapproval, and
shall continue to do so as necessary until the same are approved. Once fully
approved, Tenant shall deliver four (4) sets and one (1) sepia of the Working
Drawings to Landlord.
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(e) Landlord's approval of the Space Plan and/or the
Working Drawings shall be subject to the approval thereof by Landlord's lender,
to the extent such lender so requires.
(f) Tenant shall, at Tenant's sole cost and expense,
arrange for and oversee the filing of the Working Drawings and such other plans
as may be approved by Landlord for air-conditioning, plumbing, fire protection,
mechanical and electrical work forming a part of Tenant's Work and any other
necessary and appropriate plans and specifications for Tenant's Work with the
appropriate governmental authorities having jurisdiction and Tenant shall take
whatever action shall be necessary (including modification of Working Drawings)
to obtain and maintain all necessary approvals from said authorities with
respect thereto and the completion of the work reflected therein and shall
deliver copies of all of the same to Landlord. All material modifications to the
Working Drawings shall be subject to the approval of Landlord and its lender,
which approval shall be granted or withheld within three (3) business days after
submission thereof. Landlord and Tenant shall cooperate with each other in
connection with the aforesaid, provided that Landlord shall not be required to
incur any costs or expenses in connection with such cooperation.
(g) The Space Plan and the Working Drawings shall be
prepared in accordance with pre-existing conditions and field measurements.
4. Space Planners, Architects, Engineers, and
Contractors. The Space Plan, Working Drawings and Tenant's Work shall be
prepared and performed by space planners, interior designers, architects,
engineers, contractors and subcontractors approved of by Landlord, that are
licensed, bonded, reputable, qualified and adequately insured and who will work
in harmony with each other and with those of the Landlord so as to ensure proper
maintenance of good labor relationships. All contracts and other agreements with
contractors and subcontractors shall be fully assignable to Landlord and its
lender.
5. Changes. Except for non-material changes (a) not
affecting the Building's structure or mechanical and/or utility systems, and (b)
not materially affecting the mechanical and/or utility systems located within
and serving only the Demised Premises, no changes, modifications, alterations or
additions to the approved Space Plan or Working Drawings may be made without the
prior written approval of the Landlord and its lender after written request
therefor by Tenant. Any such changes shall be marked as follows: (A) encircling
any such changes on the drawings, (B) noting such changes by marginal insertion
of a delta sign, (C) consecutively numbering all such changes by inserting such
numbers within the delta sign noted marginally for each such change, (D)
indicating the date of all such changes in any set of drawings by inserting the
revision date in the title block of such drawing. One (1) sepia and four (4)
prints shall be
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distributed accordingly updating the list of drawings. Approval or disapproval
of any such change order shall be given within three (3) business days after
receiving the same, with any disapproval specifying the reasons therefor.
6. Compliance. Tenant's Work, the Space Plan and the
Working Drawings shall comply in all respects with the following: (a) the
Building Code of the City of Stamford and State of Connecticut and any other
related or unrelated Applicable Laws, codes, ordinances, statutes, rules,
requirements and regulations, (b) applicable standards of the National Board of
Fire Underwriters and National Electrical Code, and (c) building material
manufacturers specifications (collectively, "Codes"). In no event shall Tenant
use or occupy or permit the use or occupancy of any part of the Demised Premises
or perform any work or cause any work to be performed therein without having
first obtained, at its sole cost and expense, all necessary permits,
authorizations and approvals. Landlord shall reasonably cooperate with Tenant
with regard thereto at Tenant's cost and expense. In no event shall Tenant use
and/or occupy any portion of the Demised Premises for any purpose other than the
performance of Tenant's Work prior to its having obtained a Certificate of
Occupancy for such portion. Each contractor or subcontractor of Tenant's Work
shall agree in writing not to discriminate against employees or applicants on
the basis of race, creed, color, national origin, ancestry, sex or age.
7. Guarantees. Tenant shall obtain from each contractor
and subcontractor participating in Tenant's Work a written warranty or guarantee
that the portion thereof for which it is responsible shall be free from any
defects in workmanship and materials for a period of not less than one (1) year
after completion thereof. The correction of such work shall include, without
additional charge, all additional expenses and damages in connection with such
removal or replacement of all or any part of Tenant's Work, and/or the Project
and/or all Common Areas, of work which may be damaged or disturbed thereby. All
such warranties or guarantees as to materials or workmanship of or with respect
to Tenant's Work shall be contained in the contract or subcontract which,
together with all appropriate and/or related contracts for maintenance and/or
repair of Tenant's Work, shall be written such that said warranties, guarantees
or contracts shall inure to the benefit of both Landlord and Tenant, as their
respective interests may appear, and if Landlord or its agent so requests,
Tenant shall enforce the same on Landlord's behalf. Copies of all contracts and
subcontracts shall be furnished to Landlord promptly after the same are entered
into, and before Tenant's Work is commenced. The obtaining of and/or delivery to
Landlord of any such warranties, guaranties and/or contracts shall in no manner
limit or be deemed to limit or release Tenant from any of its obligations under
the Lease.
8. Performance.
(a) All Tenant's Work shall, subject to Paragraph 5 of
this Exhibit B, conform strictly with the Working Drawings approved by Landlord
to the extent
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such approval is required by this Exhibit B. Landlord, its lender
and their respective designated representatives shall have the right at all
times to inspect Tenant's Work for such compliance. Tenant's Work shall not
unreasonably interfere with or delay the completion of any other construction
work or repairs performed at the Building ("Other Work"). Other Work shall not
unreasonably interfere with or delay the completion of Tenant's Work. The use by
Landlord of labor which causes Tenant's contractors and/or subcontractors to
refuse to perform Tenant's Work shall constitute unreasonable interference by
Landlord.
(b) Tenant's Work shall be performed in a first-class
and workmanlike manner as to workmanship and materials, and shall be in good and
usable condition at the date of completion.
(c) Each contractor and subcontractor shall be required
to obtain prior approval from Landlord for any space outside the Demised
Premises, at or within the Building, which such contractor or subcontractor
desires to use for storage, handling and moving of materials and equipment, or
for location of any facilities for its personnel. Landlord agrees that its
project manager is authorized to grant such approval on its behalf.
(d) The contractors and subcontractors shall be
required, as part of Tenant's Work, to remove from the Demised Premises and
dispose of at least once per week (and more frequently as Landlord may
reasonably direct), all debris and rubbish caused by or resulting from Tenant's
Work. Upon completion of Tenant's Work, Tenant or the contractors and
subcontractors shall remove all surplus materials, equipment, debris and rubbish
of whatever kind remaining in or at the Building which has been brought in or
created in the performance of Tenant's Work. If any contractor or subcontractor
shall neglect, refuse or fail to remove any such debris, rubbish, surplus
material or temporary structures within five (5) days after notice to Tenant
from Landlord with respect thereto, Landlord may cause the same to be removed,
at Tenant's sole cost and expense.
(e) As security for the prompt performance and
completion of Tenant's Work and for the payment thereof, Tenant shall furnish to
Landlord or shall cause its general contractor to furnish to Landlord a bond in
the amount of 120% of the contract sum of the general contractor's portion of
Tenant's Work as set forth in the Budget . All such bonds shall be issued by
reputable surety companies authorized to do business in the State of Connecticut
and shall run to the Tenant, the Landlord and Landlord's lender as obligees. The
provisions of this subsection (e) shall be inapplicable to the Tenant's Work
constructed in connection with the Tenant's initial occupancy of the Demised
Premises.
(f) Landlord's acceptance of Tenant's Work as being
complete in accordance with the approved Space Plan and Working Drawings shall
be subject to Landlord's inspections and written approval, which approval shall
not be unreasonably withheld or delayed. Tenant shall give Landlord not less
than ten (10) days' prior written
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notice of the anticipated completion date of Tenant's Work and Landlord shall
arrange for a final inspection of Tenant's Work promptly after the receipt of
any necessary Certificate of Occupancy therefor. If Landlord disapproves of
Tenant's Work, such reason(s) therefore shall be specified in writing to Tenant
and Tenant shall, at Tenant's sole cost and expense, promptly arrange for any
required modification, correction, replacement or repair which shall be
reasonably required and upon completion of such corrective work, Landlord shall
re-inspect Tenant's Work within a reasonable time (not to exceed thirty (30)
days) after receipt of Tenant's notice of the completion of such corrective work
and the parties shall continue as aforesaid until Landlord in its reasonable
judgment, accepts Tenant's Work as being complete. Landlord's acceptance of
Tenant's Work shall be subject to the terms of paragraph 8 (i) herein.
(g) Tenant shall at its cost and expense construct,
purchase, install and perform any and all items of Tenant's Work and employ its
personnel so as to obtain appropriate Certificates of Occupancy and to occupy
the Demised Premises as soon as is reasonably possible.
(h) Copies of "as built" drawings shall be provided to
Landlord no later than sixty (60) days after completion of the Tenant's Work.
(i) Landlord's approval of the Space Plan and/or the
Working Drawings (including any reasonable changes thereto requested by
Landlord), recommendations and/or approval of contractors, subcontractors, space
planners, engineers, architects and/or consultants and Landlord's final approval
of Tenant's Work shall in no event give rise to any liability on Landlord's part
should the same be of insufficient quality, be inappropriate or otherwise be
inadequate for the performance of Tenant's Work and its compliance with all
Codes upon completion, it being understood that such approvals and/or
recommendations are given without representation or warranty of any kind by
Landlord and without waiving Landlord's right to require the correction of
Tenant's Work which is subsequently determined to be faulty or defective or
which is subsequently found not to have been completed in accordance with
approved plans or which is subsequently determined as not being in compliance
with applicable Codes in effect at the time such Tenant's Work was completed.
Similarly, any plans and/or specifications supplied by Landlord to Tenant are
made with the understanding that (i) their contents shall be verified by Tenant
and (ii) they are given without representation or warranty of any kind by
Landlord as to measurements, dimensions or other matters discoverable by a
reasonable inspection of the Demised Premises by Tenant or its consultant(s).
(j) Landlord and Tenant shall and shall require their
respective contractor(s) and subcontractor(s) to use reasonable efforts to
conduct their labor relations so as to avoid strikes, picketing and boycotts of,
on or about the Demised Premises or the
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Building and/or any delay in the completion of Tenant's Work, and any
interference with Other Work.
(k) Tenant shall pay (or cause its contractor to pay),
as and when due, any and all taxes, including, but not limited to any sales
taxes, payable by Tenant and/or its contractor for the performance or
installation of Tenant's Work.
(l) All of Tenant's Work shall be coordinated with
Landlord's project manager and shall be performed in harmony with all other
contractors performing work in the Project and in accordance with such rules and
regulations as Landlord and/or its project manager may determine to be
reasonably necessary including, but not limited to, rules concerning Landlord's
supervision of Tenant's Work, the hours during which Tenant's Work may be
performed, and rules concerning the use of scaffolding, loading dock(s) and
freight elevator, including, but not limited to, charges for the use thereof
(which shall be limited to the costs actually incurred by Landlord). Tenant and
its contractors shall have priority in the use of the loading dock and freight
elevator, provided the exercise of such priority does not unreasonably interfere
with the performance of Other Work. In any event, if the weight and/or size
capacity of the freight elevator is insufficient for any aspect of Tenant's
Work, Tenant shall make its own hoisting arrangements, subject to such
reasonable rules as Landlord may establish. No fee shall be charged Tenant for
elevator use, except for Landlord's supervisory fee as specified in Section 10.4
(Elevators) of the Lease.
(m) Landlord and Tenant agree that the approval and/or
consent of Landlord of or to any matter herein contained shall be subject to the
approval and/or consent thereof or thereto by Landlord's lender. If, for any
reason, Landlord's lender withholds or delays its approval and/or consent to any
matter, it shall be reasonable for Landlord to withhold or delay its approval
and/or consent thereto. However, Landlord agrees to use all reasonable efforts
to obtain Landlord's lender's approval and/or consent to any such matter.
(n) Tenant shall pay to Landlord a fee for Landlord's
review of the Space Plan and the Working Drawings and for the inspection,
administration and coordination of Tenant's Work, which fee shall include, but
shall not be limited to, an hourly rate for the time of Landlord's property
manager spent on such matters, which rate shall be $85.00 per hour as of the
date of this Lease and which hourly rate shall be subject to increase by
Landlord, from time to time and an hourly rate for other Building management
personnel whose services may be required, which hourly rates shall also be
subject to increase, from time to time. As of the date of this Lease, the
regular hourly rate for the Building Mechanical Engineer is $40.00 and the
overtime rate is $60.00. With respect to Landlord's review of the Space Plan and
the Working Drawings for the initial Tenant's Work and for the inspection,
administration and coordination of initial Tenant's
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Work to initially ready the Demised Premises for Tenant's occupancy, such fee
may be paid from the Allowance and, to the extent the Allowance is insufficient,
shall be paid by Tenant to Landlord as Additional Rent promptly upon demand.
9. Insurance. Supplementing Article 11 of the Lease:
Tenant and all contractors and subcontractors shall carry worker's compensation
insurance covering all of their respective employees in amounts as required by
statute; and all contractors shall also carry public liability insurance,
including property damage coverage, with reasonable limits and in form and
companies as are required to be carried by Tenant under the Lease; and the
policies therefor shall insure Landlord, Landlord's lender and Tenant as
additional insureds as their interests may appear, as well as the contractor and
its subcontractors. Tenant shall carry the casualty insurance coverage required
under the Lease respecting the construction and improvements to be made by
Tenant, in the amount of the anticipated cost of construction of Tenant's Work.
Certificates of such insurance as is obtained by Tenant, or with respect to
insurance provided by contractors and/or subcontractors, certificates or
certified copies of all such insurance policies shall be delivered to Landlord
before the construction is commenced or the contractor's equipment is moved to
the Building. All policies of insurance must require that the carrier give
Landlord at least thirty (30) days' advance written notice of any cancellation
or lapse of the effective date or any reduction in the amounts of insurance. In
the event that during the course of Tenant's Work, any damage shall occur to the
Building or construction and improvements being made by Tenant resulting from
the actions or omissions of Tenant and/or its contractors and/or subcontractors,
then Tenant shall promptly repair the same at Tenant's sole cost and expense.
10. Stop Work: Default.
(a) If Landlord reasonably believes that any of Tenant's
Work has caused or created a dangerous or hazardous condition landlord may
without in any manner limiting Landlord's other remedies under the Lease and
without prior notice order that until such dangerous or hazardous condition is
remedied, no further Tenant's Work shall be performed and no further deliveries
shall be made with respect to the matter giving rise to such condition other
then as may be necessary to remedy such condition, provided that Landlord shall
provide Tenant with telephonic notice of Landlord's directive as soon thereafter
as is reasonably practicable.
(b) Notwithstanding the terms and provisions of Section
16.1, any default by Tenant under this Work Letter which remains uncured for a
period of fifteen (15) days after notice thereof from Landlord shall be an event
of default under the Lease.
11. Access to Demised Premises. After obtaining all
approvals required under Paragraph 3 hereof, Tenant and its contractors and
employees shall, so long
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as Tenant is not in default of any of the terms, covenants and conditions of
this Lease beyond applicable notice and grace periods, be entitled to access the
Demised Premises prior to the Commencement Date during the hours of 8:00 A.M. to
6:00 P.M. Monday through Friday. Upon reasonable advance notice to Landlord or
its project manager, such parties may access the Demised Premises at other times
for matters relating to Tenant's Work, provided, however, that Tenant shall be
liable, as Additional Rent under the Lease, for all overtime personnel costs and
expenses incurred by Landlord with respect to the supervision and administration
thereof. All access shall be at such parties' sole risk and shall be upon all
the terms, covenants and conditions of this Lease excepting only Tenant's
obligation to pay Fixed Rent, irrespective of whether the same by the express
terms of this Lease only apply from and after commencement of the Term.
Electricity, heat and ventilation stall be furnished to Tenant, at Landlord's
actual cost, together with Landlord's administrative fee, to the extent they may
be reasonably required by Tenant during the aforementioned hours.
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EXHIBIT B-1
(REVISED: SEPTEMBER 1996)
MINIMUM TENANT'S WORK
All work to the Demised Premises undertaken by or for Tenant shall
conform to the following Building Standard Requirements and all City of Stamford
codes, rules and regulations.
PARTITIONS
PUBLIC CORRIDOR AND TENANT DEMISING PARTITION
One (1) hour fire rated 3-3/4" (thickness of wall). First layer 5/8"
gypsum wallboard attached vertically on both sides, on 2-1/2" metal studs spaced
16" on center with 2-1/2" Thermofibre in cavity. Wall extend from floor to
concrete slab.
INTERIOR PARTITIONS - 1 LF PER 15 RSF
One layer 5/8" fire-shield gypsum wallboard screw attached
horizontally or vertically to both sides on 2-1/2" metal screw studs spaced 24"
on center from floor to underside of dropping ceiling.
SMOKE EVACUATION SYSTEM
All return air openings in ceiling plenum must be provided to
maintain property operation of smoke evacuation system.
VINYL BASE
Four (4) inch vinyl base toeless for carpet floor and cover for
resilient floor tile in building standard color.
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PAINT
Areas to be painted shall be all walls, non-acoustically treated
ceilings, metal doors and door bucks, and all other masonry or metal surfaces.
This painting shall consist of water base, flat on walls, and semi-gloss on
doors, bucks and other metal surfaces. Colors for the initial painting of the
dry wall partitioning may be selected by Tenant from Building Standards' color
chart. A finish schedule shall be provided to Landlord by Tenant. Such finish
schedule shall mean the complete listing of the finishes to be applied to all
wall and floor surfaces forming a part of the Finish Work and detailed
specifications of such wall and floor coverings, including cover samples,
identification of materials by manufacturers, catalog numbers if applicable.
DOORS
ENTRANCE DOOR - 1 PER TENANT
One single suite entrance door - 3'0" x 7'0" or one double door 6'0" x
7'0" flush panel solid core prefinished mahogany or oak with hardwood or metal
frame and lever hardware cloer; three butt hinges, heavy duty lockset; floor
mounted doorstop. All as selected by owner.
INTERIOR DOOR - MINIMUM OF 1 PER 350 RSF
Full height 3' 0" x 7'0" x 1-3/4" flush panel solid core prefinished
premium Quartered Mahogany or Oak veneer. Three bearing butt hinges; heavy duty
latchset; and floor/wall mounted door stop. As selected by owner.
SIGNS
TENANT I.D. - 1 PER TENANT
Entry shall have Building Standard suite identification graphics. As
specified by Owner.
EXIT SIGN - AS REQUIRED
Exit signs in accordance with City of Stamford code. Exit signs to be
LED type fixture and must meet or exceed requirements of North East Utilities
ECC Electronic Ballast Eligible Product List at time of installation.
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ELECTRICAL
DUPLEX RECEPTACLE - MINIMUM OF 1 PER 150 RSF
Partition mounted outlets (110 volt) with plastic cover plate in
building outlet box.
MOTION SENSOR LIGHT- MINIMUM OF 1 PER 500 RSF
Partition mounted single pole, motion sensor switch with plastic
cover plate in Building Standard outlet box to be tied into central lighting
computer system, mounted at handicap height (36" to bottom of box).
LIGHTING FIXTURE - MINIMUM OF 1 PER 75 RSF
2' x 4" Keene Lighttolier or equivalent 2 lamp, 12 cell parabolic
with air return adjustable dampers, 277V, high efficiency electronic ballast,
3,000 Kelvin Advantage XT-8 lamps and fitted with specular anodized aluminum
parabolic reflectors; or
2' x 2' Keene Lighttolier paralythe 9 cell or equivalent may be
substituted where necessary. All fixtures must conform to N.E. Utilities
eligible products list, all bulbs must be approved watt misers; or down lights;
or other light fixtures as selected by Tenant and subject to Landlord approval,
which shall not be unreasonably withheld or delay. All fixtures and ballasts
must conform to North East Utilities ECC Electronic Ballast Eligible Product
List at time of installation.
Compact Flourescreen 52 Watts or downlights may also be used with
ballasts that conform to North East Utilities ECC Electronic Ballast Eligible
Product List at time of installation.
TELEPHONE OUTLET - MINIMUM OF 1 PER 200 RSF
Partition mounted telephone rough outlet mounted horizontally 1'0"
above the floor with empty conduit back to the Tenant's telephone equipment
located within the tenant leasehold area; all cable, installation, and trim
plates/connectors provided and installed by the Tenant's telephone contractor.
EMERGENCY LIGHTING - AS REQUIRED
2' x 4' Keene Lightolier, 2 lamp, 12 cell 3-1/8" parabolic with air
return adjustable dampers, 277V, high efficiency electronic ballast, 3,000
Kelvin Advantage XT-8 lamps and fitted with specular anodized aluminum parabolic
reflectors.
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2' x 2' model, 9 cell or equivalent may be substituted where
necessary. All fixtures must conform to N.E. Utilities eligible products list,
all bulbs must be approved watt misers; or down lights; or other light fixtures
as selected by Tenant and subject to Landlord approval, which shall not be
unreasonably withheld or delay. All fixtures and ballasts must conform to North
East Utilities ECC Electronic Ballast Eligible Product List at time of
installation.
Emergency lighting to be in accordance with the City of Stamford
code and connected to building's emergency generator. Exit lights - as required.
Lithonia Signature Series LED (single face) and LED (double face). All fixtures
must conform to North East Utilities Electronic Eligible Products List at time
of installation, all bulbs must be approved watt misers.
CEILING
CEILING GRID - RSF
Chicao Metallic, spectra 3800, 2' x 2', finish. White-01.
CEILING TILE - RSF
Armstrong, Cirrus Travertone, 2' x 2' acoustical straight-edge tile
suspended at approximately 8' - 9' above finished floor.
WINDOW TREATMENT
EXTERIOR WINDOW TREATMENT - AS REQUIRED
Building Standard Levolor horizontal 1" mini blinds installed in
exterior windows in building standard color (#820, Squirrel Grey).
CARPET
Carpeting throughout the premises of a type and color, selected by
Tenant either (i) from Landlord's Building Standard, 30 oz. static resistant,
direct glue down, fire retardant, or (ii) of a superior quality, subject to
Landlord's reasonable approval.
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HVAC
HEATING, VENTILATING AND AIR-CONDITIONING
Building Standard perimeter individually controlled floor mounted
water source heat pumps serving perimeter offices are Friedrich Climate Master
model #811-10E and #811-12E. Interior office spaces are served by 1 to 4 floor
mounted water source heat pumps each controlled by a space mounted electronic
sensor thermostat. Main duct distribution trunk lines are distributed throughout
the interior space for connection to ceiling air diffusers by the Tenant. Return
air to be provided through the building standard lighting fixtures and return
air grills where necessary. All automatic temperature controls must conform to
central energy management system. (CSI 7000)
The HVAC system is designed to provide 72 degrees F space
temperature based on outdoor coincident of 9 degrees F; 75 degrees F dry bulb
and 50% relative humidity when outside conditions are 86 degrees F dry bulb and
73 degrees F coincident wet bulb temperature. Design conditions include for
people density of 1 per 150 USF. The Building Standard auxiliary condenser water
system allows Tenants the option of adding auxiliary cooling equipment not to
exceed 1.2 watts USF at their own cost.
The Base Building Energy Management System ("EMS") is a Climate
Master/CSI 7000 System, represented locally by W.C. Industries Controls, Inc. of
Stamford, Connecticut. All HVAC units shall be equipped with control modules
compatible to the Base Building EMS and wired into the base building control
system with appropriate interface modules. Twisted pair wiring will be installed
around the perimeter of the building to connect each of the perimeter heat pumps
to the core mechanical rooms. DDC Control modules compatible with the base
building EMS will be installed and connected to the twisted pair wiring. Each
perimeter heat pump requires one Climate Master Heat Pump Control Module and
communications card. Each Core Ducted Heat Pump requires one CSI Heat Pump
Control Module and communications card with space temperature sensor. The space
sensor will be wired to the core heat pump and installed in the tenant space.
One Control Interface Module will be installed in the Core Mechanical Room for
every 32 heat pumps within the tenant space. The Tenant will be responsible for
the start-up of the new controls, entering the control parameters into the
System Computer, and a full checkout under the supervision of the Landlord.
SPRINKLER AND FIRE LIFE SAFETY
Building Standard fire life safety and wet sprinkler system includes
sprinkler heads, exit signs, pull stations, alarms, portable fire extinguishers
and smoke evacuation for Tenant build-out. Tenant shall fully comply with all
City of Stamford and applicable codes.
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EXHIBIT C
COMMENCEMENT DATE AGREEMENT
THIS AGREEMENT is made this ___ day of September, 1997 by and
between STAMFORD TOWERS LIMITED PARTNERSHIP (hereinafter referred to as the
"Landlord") and MEMBERWORKS INCORPORATED, formerly known as Cardmember
Publishing Corporation (hereinafter referred to as the "Tenant") pertaining to
approximately 8,976 square feet located on the sixth (6th) Floor (the "Demised
Premises") in the building known as 750 Washington Boulevard, Stamford,
Connecticut (the "Building").
W I T N E S E T H:
WHEREAS, by Lease dated as of the 20th day of May 1997 (the
"Lease"), Landlord leased Tenant the Demised Premises; and
WHEREAS, the Lease provided for the Commencement Date and the
Expiration Date to be determined; and
WHEREAS, Landlord and the Tenant now desire to fix the
Commencement Date and Expiration Date;
NOW, THEREFORE, the Landlord and the Tenant hereby agree as follows:
1. The term of the Lease shall be deemed to have commenced on
September 1, 1997 (the "Commencement Date"), and shall continue until midnight
on March 14th, 2006 (the "Expiration Date"), unless sooner terminated or
extended as provided therein.
2. By execution hereof, the Tenant hereby acknowledges that all
improvements required to be made by the Landlord prior to the Commencement Date
have been satisfactorily performed and that Tenant does hereby accept the
Demised Premises delivered by the Landlord in full compliance with the terms of
the Lease.
3. This Agreement shall be binding upon the parties hereto, their
successors, and assigns.
<PAGE> 103
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
Executed this day of , 1997.
LANDLORD:
STAMFORD TOWERS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Stamford Towers, Inc.,
a Delaware corporation
a General Partner
By:__________________________________
Name:
Title:
TENANT:
MEMBERWORKS INCORPORATED,
a Delaware corporation
By:__________________________________
Name:
Title:
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EXHIBIT D
RULES AND REGULATIONS
(1) Security. (a) Landlord may from time to time adopt appropriate
systems and procedures for the security of the Project and all persons and
property in the Project, and Tenant will comply with Landlord's requirements
relating to security. No customer or invitee of Tenant may be admitted after
Normal Business Hours unless accompanied by an employee of Tenant. Tenant and
Tenant's employees will be permitted in the Building 24 hours per day, 7 days
per week except as provided below. During the continuance of any invasion, mob,
riot, public excitement or other circumstance rendering such action advisable in
Landlord's opinion, Landlord reserves the right to prevent access to the
Project, by closing the doors or otherwise, for the safety of tenants and
protection of the Project and property in the Project. Landlord may from time to
time install and change locking mechanisms on entrances to the Project, the
Building, any Common Area, and the Demised Premises. Tenant shall not add to or
change existing lock mechanisms on any door in or to the Demised Premises. All
keys or other devices serving the same purpose as keys issued to Tenant will
remain the property of Landlord, may not be duplicated and must be returned to
Landlord at the end of the Term or upon request. Tenant shall not make or have
made additional copies of any keys or access devices provided by Landlord. In
the event of the loss of any keys or access devices so furnished by Landlord,
Tenant shall pay Landlord therefor.
(b) Tenant shall see that the doors of the Demised Premises are
closed and securely locked and must observe strict care and caution that all
water faucets or water apparatus are entirely shut off before Tenant or its
employees leave such Demised Premises, and that all utilities shall likewise be
carefully shut off, so as to prevent waste or damage, and for any default or
carelessness the Tenant shall make good all injuries sustained by other tenants
or occupants of the Project or Landlord. On multiple-tenancy floors, all tenants
shall keep the door or doors to the Building corridors closed at all times
except for ingress and egress. Tenant shall observe and abide by all security
measures or security systems for the Demised Premises and/or the Project now in
force or hereinafter adopted by Landlord. Tenant shall not use any security
systems or security measures which are in addition to or different from those
provided by Landlord without Landlord's prior written consent. If Landlord
consents to such additional or different security systems or security measures
(including, without limitation, extra locks, keys, guards or alarms), Tenant
shall pay Landlord, as Additional Rent, all costs and expenses which Landlord
incurs in connection with such increased security.
(2) Windows. Tenant shall observe Landlord's rules with respect to
maintaining uniform coverings at all windows in the Demised Premises so that the
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Building presents a uniform exterior appearance, and shall not install any
window shades, screens, drapes, covers or other material on or at any window in
the Demised Premises without Landlord's prior written consent. No articles shall
be placed against windows, glass partitions or glass doors which might appear
unsightly from outside the Building. Tenant shall ensure, to the best of its
ability, that window coverings are closed on all windows in the Demised Premises
while they are exposed to the direct rays of the sun.
(3) Repairs, Maintenance, Alterations and Improvements. Tenant
shall carry out Tenant's repairs, maintenance, alterations and Improvements in
the Demised Premises only during times agreed to in advance by Landlord and in a
manner which will not interfere with the rights of other tenants in the Project.
(4) Water Fixtures. Tenant shall not use water fixtures for any
purpose for which they are not intended, nor shall water be wasted by tampering
with such fixtures.
(5) Personal Use of Demised Premises. The Demised Premises shall
not be used or permitted to be used for residential, lodging or sleeping
purposes or for the storage of personal effects or property not required for
business purposes.
(6) Heavy Articles. Tenant shall not place upon any floor of the
Demised Premises a load exceeding the designed load per square foot or the load
allowed by law. Landlord may designate the location of any heavy articles in the
Demised Premises. No furniture, office equipment, packages or merchandise will
be received in the Building or carried up or down in the elevator, except during
such hours as shall be designated by Landlord. Landlord shall prescribe the
charge for freight elevator use and the method and manner in which any
merchandise, heavy furniture, equipment or safes shall be brought in or taken
out of the Building, and also the hours at which such moving may be done. All
damage done to the Building by taking in or out such merchandise, heavy
furniture or safes, or done to the Building while any of said property shall be
therein, shall be made good and paid for by Tenant on demand as Additional Rent.
(7) Use of the Demised Premises. Tenant shall not suffer or permit
the Demised Premises or any part thereof to be used in any manner, or anything
to be done therein, or suffer or permit anything to be brought into or kept
therein which would in any way:
(i) violate any of the provisions of any lease, mortgage or deed of
trust to which this Lease is or may hereafter become subordinate;
(ii) cause or be likely to cause physical damage to the Building or
any part thereof or the Project;
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(iii) constitute a public or private nuisance;
(iv) impair or, in Landlord's good faith judgment, be likely to
impair the appearance, character or reputation of the Building or the Project;
(v) result in members of the general public loitering in, on or
about the Building or the Project;
(vi) discharge objectionable fumes, vapors or odors into the
Building air conditioning system or into Building flues or vents not designed to
receive them or otherwise in such manner as may offend other occupants; or
(vii) impair or interfere with any of the Building or Project
services or the proper economic heating, cleaning, air conditioning or other
servicing of the Building or the Demised Premises or impair or interfere with or
tend to impair or interfere with the use of any of the other areas of the
Project by, or occasion discomfort, annoyance or inconvenience to, Landlord or
any of the other tenants or occupants of the Project.
(8) Carpet Pads. In those portions of the Demised Premises where
carpet has been provided directly or indirectly by Landlord (including by work
letter reimbursement), Tenant shall, at its sole cost and expense, install and
maintain pads to protect the carpet under all furniture having casters.
(9) Bicycles, Animals. Tenant shall not bring any animals or birds
into the Building (other than "seeing eye dogs"), and shall not permit bicycles
or other vehicles inside or on the sidewalks outside the Project except in the
areas designated from time to time by Landlord for such purposes.
(10) Deliveries. Tenant shall ensure that deliveries of materials
and supplies to the Demised Premises are made through such entrances, elevators,
and corridors and at such times as may from time to time be designated by
Landlord. Under no circumstances shall deliveries be made through the lobbies of
the Building.
(11) Furniture and Equipment. Tenant shall ensure that furniture
and equipment being moved into or out of the Demised Premises are moved through
such entrances, elevators and corridors and at such times as may from time to
time be designated by Landlord, and by movers or a moving company approved by
Landlord.
(12) Solicitations. Landlord reserves the right to restrict or
prohibit canvassing, soliciting, or peddling in the Building or the Project.
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(13) Food and Beverages. Only persons approved from time to time by
Landlord may prepare or solicit orders for any such purpose. Except with
Landlord's prior written consent and in accordance with arrangements approved by
Landlord, Tenant shall not permit on the Demised Premises the use of equipment
for dispensing food or beverages or for the preparation, solicitation or orders
for, sale, serving or distribution of food or beverages. No cooking shall be
done or permitted by Tenant on the Demised Premises (except that use by Tenant
of Underwriters' 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 are in accordance with all
applicable federal, State and City laws, codes, ordinances, rules and
regulations, and Landlord has approved all of such equipment prior to
installation).
(14) Refuse. With respect to refuse in excess of that picked up by
the Building's janitorial service, Tenant shall place all refuse in proper
receptacles provided by Tenant at its expense in the Demised Premises or in
receptacles (if any) provided by Landlord for the Building, and shall keep
sidewalks and driveways outside the Project, and lobbies, corridors, stairwells,
ducts and shafts of the Building, free of all refuse. No material 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 the City of Stamford, 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 shall designate.
(15) Obstructions. Tenant shall not obstruct or place anything in
or on the sidewalks or driveways outside the Building or the Project or in the
lobbies, corridors, stairwells, or any other Common Area, or use such locations
for any purpose except access to and exit from the Demised Premises, without
Landlord's prior written consent. Landlord may remove at Tenant's expense any
such obstruction or thing (unauthorized by Landlord) without notice or
obligation to Tenant.
(16) Proper Conduct. Tenant shall not conduct itself in any manner
which is inconsistent with the character of the Project as a first quality
building or which will impair the comfort or convenience of other tenants in the
Project.
(17) Employees and Agents. In these Rules and Regulations, "Tenant"
includes the employees, invitees, agents, and licensees of Tenant and others
permitted by Tenant to use or occupy the Demised Premises.
(18) Noise. Tenant shall not make, or permit to be made, any
unseemly or disturbing noises or odors, or disturb or interfere with occupants
of the Building, the Project or neighboring buildings or premises or those
having business with them, whether
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by the use of any musical instrument, radio, television set, talking machine,
unusual noise, whistling, singing or in any other way. 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, in such a manner
as shall be sufficient, in Landlord's judgment, to absorb and prevent noise,
vibration or annoyance. The persons employed to move such equipment in or out of
the Building must be acceptable to Landlord.
(19) Parking. Upon Landlord's request, Tenant will furnish Landlord
with a complete list of the license numbers of all automobiles operated by
Tenant and its employees.
(20) Access. Sidewalks, halls, passages, exits, entrances,
elevators, escalators and stairways shall not be obstructed by Tenant or used by
Tenant for any purpose other than for ingress and egress from the Demised
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 the Landlord, may be prejudicial to the safety, character,
reputation and interests of the Project, the Building or 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 of the Project or the Building, except as authorized by
Landlord.
(21) Signs. No sign, placard, picture, name, advertisement or notice
visible from the exterior of the Premises shall be inscribed, painted, affixed,
installed or otherwise displayed by Tenant either on the Premises or any part of
the Project without the prior written consent of Landlord, and Landlord shall
have the right to remove any such sign, placard, picture, name, advertisement or
notice without notice to and at the expense of Tenant. If Landlord shall have
given such consent to Tenant at any time, whether before or after the execution
of the Lease, such consent shall not in any way operate as a waiver or release
of any of the provisions hereof or of the Lease, and shall be deemed to relate
only to the particular sign, placard, picture, name, advertisement or notice so
consented to by Landlord and shall not be construed as dispensing with the
necessity of obtaining the specific written consent of Landlord with respect to
any other such sign, placard, picture, name, advertisement or notice. All
approved signs or lettering on doors and walls shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved by Landlord.
5
<PAGE> 109
(22) Directory. The bulletin board or directory of the Building will
be provided exclusively for the display of the name and location of tenants only
and Landlord reserves the right to exclude any other names therefrom.
(23) Janitorial Service. Tenant shall not employ any person or
persons other than the janitor or cleaning contractor of Landlord for the
purpose of cleaning the Demised Premises unless otherwise agreed to by Landlord
in writing. Except with the written consent of Landlord in each instance, no
person or persons other than those approved by Landlord shall be permitted to
enter the Building for the purpose of cleaning the same. Tenant shall not cause
any unnecessary labor by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness of the Demised Premises. Landlord
shall not in any way be responsible to Tenant for any loss of property on the
Demised Premises, however occurring, or for any damage done to the effects of
Tenant by the janitor or any other employee or any other person.
(24) Electricity, Water, Heating and Air-Conditioning. As more
specifically provided in the Lease, Tenant shall not waste electricity, water or
air-conditioning and agrees to cooperate fully with Landlord to assure the most
effective and efficient operation of the Building's heating and air
conditioning, and shall refrain from attempting to adjust any controls other
than room thermostats installed for Tenant's use. Tenant shall not use any
method of heating or air-conditioning other than that supplied by Landlord.
(25) Toilets. 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 shall be thrown
therein, and the expense of any breakage, stoppage or damage resulting from the
violation of this rule by Tenant or Tenant's employees or invitees shall be
borne by Tenant.
(26) Hazardous Substances. Tenant shall not use or keep in the
Demised Premises, the Building or the Project any kerosene, gasoline or
inflammable or combustible fluid or material other than limited quantities
necessary for the operation or maintenance of routine office equipment. Upon
Landlord's request, Tenant shall provide Landlord with material data sheets
identifying any and all such substances used or stored at the Demised Premises.
(27) Wiring. Landlord will direct electricians as to where and how
telephone, telegraph, electrical communication and data transmissions wires,
cables and/or conduits 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 and other office equipment
affixed to the Demised Premises shall be subject to
6
<PAGE> 110
the prior written approval of Landlord, and Tenant must obtain and comply with
Landlord's instructions as to their installation.
(28) Radio and Television. Except as may otherwise be provided in
the Lease, Tenant shall not install any radio or television antenna, loudspeaker
or any other device on the exterior walls or the roof of the Project or the
Building. Tenant shall not interfere with radio or television broadcasting or
reception from or in the Project, the Building or elsewhere.
(29) Infestation. If the Demised Premises become infested with
insects or vermin (or a reasonable threat of such infestation exists), Tenant,
at its sole cost and expense, shall cause the Demised Premises to be
exterminated, from time to time, to the satisfaction of Landlord, and shall
employ such exterminators therefor as shall be approved by Landlord.
(30) Floor Coverings. Tenant shall not lay linoleum, tile, carpet or
any other floor covering so that the same shall be affixed to the floor of the
Demised Premises in any manner except as approved in writing by Landlord.
(31) Vehicles. There shall not be used in any space, or in the
public areas of the Project, 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 Demised Premises.
(32) Name of Building. Landlord shall have the right, exercisable
without notice and without liability to Tenant, to change the name and address
of the Project or the Building.
(33) Control of Project. Landlord reserves the right to exclude or
expel from the Project or the Building and/or the Project 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 Project or the
Building.
(34) Control of Name of Project. Without the prior written consent
of Landlord in each instance, Tenant shall not use the name of the Project or
the Building with or in promoting or advertising the business of Tenant except
as Tenant's address.
(35) Compliance With Safety Regulations. Tenant shall comply with
all safety, fire protection and evacuation procedures and regulations
established by Landlord or any governmental or quasi-governmental entity.
7
<PAGE> 111
(36) Tenant's Responsibility. Tenant assumes any and all
responsibility for protecting the Demised Premises from theft, robbery and
pilferage, which includes keeping doors locked and other means of entry to the
Demised Premises closed.
(37) Authorized Work. The requirements of Tenant will be attended to
only upon application at the office of the Project by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of their
regular duties, unless under special instructions from Landlord, and no
employees will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
(38) Waiver. Landlord may waive any one or more of these Rules and
Regulations for the benefit of any particular tenant or tenants, but no such
waiver by Landlord shall be construed as a waiver of such Rules and Regulations
in favor of any other tenant or tenants, nor prevent Landlord from thereafter
enforcing any such Rules and Regulations against any or all tenants of the
Building.
(39) Rules and Regulations. Landlord reserves the right to make such
other rules and regulations as in its judgment may from time to time be needed
or appropriate for safety and security, for care and cleanliness of the Project
and for the preservation of safety, efficiency and order therein. Tenant agrees
to abide by all such Rules and Regulations hereinafter stated and any additional
rules and regulations which are adopted.
(40) Observance of Rules and Regulations. Tenant shall be
responsible for the observance of all of the foregoing Rules and Regulations by
Tenant's employees, agents, clients, customers, invitees and guests.
(41) Definition of Terms. Unless otherwise defined, terms used in
these Rules and Regulations shall have the same meaning as in the Lease.
8
<PAGE> 112
EXHIBIT E
CLEANING SPECIFICATIONS
General
1. All flooring to be swept and/or dust mopped five times per week
Damp mopping as needed.
2. All carpeted areas and rugs vacuumed twice weekly.
3. All stairways to be swept five times per week.
4. Empty all waste paper baskets five times per week.
5. Floors, walls and interior surfaces of lobby, elevators and public
corridors to be maintained as required. Five times per week.
6. Dust all furniture and window sills as required. Five times per week.
7. Water cooler to be wiped five times per week.
8. Entrance lobby glass to be washed or wiped five times per week.
9. Clean all elevator cabs and tracks five times per week.
10. Clean entrance sidelights and transoms. Five times per week.
11. High-dust partitions, pipes, vents, moldings. Monthly.
12. Dust all venetian blinds, three times per year.
13. Leave on designated night lights, secure doors and windows, five times per
week.
14. Maintain janitor's closet, and clean related equipment, five times per
week.
15. Sweep and dust stairwells, landings, handrails five times per week.
16. Clean all finger marks and smudges around light switches and doorknobs,
five times per week.
<PAGE> 113
17. Dust and/or damp wipe radiator sills. Dust and/or damp wipe walls,
partitions, doors, sills, etc., to remove finger marks and scuff marks,
five times per week.
18. Dust baseboards trim, louvers, pictures, charts quarterly.
19. Dust and wipe directories, mail boxes, etc., five times per week.
20. Spot shampoo all public corridors and elevator floors weekly.
21. All public areas to be vacuumed five times per week.
22. Dust all ceiling diffusers two times per year.
23. A "day porter" shall be provided on weekdays.
Main Lobby
Nightly
1. Sweep and damp-mop entrance floor.
2. Vacuum carpeted floors.
3. Dust all furniture.
4. Vacuum upholstered furniture.
5. Clean all outside ashtrays.
6. Sweep outside mat.
7. Clean front entrance doors thoroughly.
Monthly
1. Spray and buff floor.
Restrooms
Nightly
2
<PAGE> 114
1. Sweep and wash flooring with a germicidal solution. Wash and polish
mirrors, powder shelves, brightwork, etc.
2. Wash both sides of toilet seats and urinals, including piping, hinges,
bowls, basins, etc., with a germicidal detergent solution.
3. Dust partitions, tile walls, dispensers and receptacles.
4. Empty and clean towel and sanitary napkin disposal receptacles.
5. Remove wastepaper and refuse to a designated area.
6. Refill toilet tissue holders, soap and towel dispensers with supplies
furnished by client.
7. Spot-clean lavatory walls and stall partitions, five times per week.
Monthly
1. High-dust tops of partitions, vents, grills, etc.
2. Thoroughly wash walls and partitions.
Quarterly
1. Power-scrub all lavatory flooring.
2. Dust exteriors of light fixtures.
Windows
1. Once per year clean all exterior windows on the inside only, provided that
window sills are free of any articles and access to the windows is not
obstructed.
2. Once per year clean all exterior windows on the outside.
3
<PAGE> 1
EXHIBIT 10.24
SECOND AMENDMENT
SECOND AMENDMENT TO THE LEASE AGREEMENT EXECUTED BY AND BETWEEN ARENA TOWER II
CORPORATION ("LANDLORD"), AND CARDMEMBER PUBLISHING CORPORATION ("TENANT"), FOR
LEASED PREMISES DEFINED AS SUITE 2000, ARENA TOWER II, 7324 SOUTHWEST FREEWAY,
HOUSTON, HARRIS COUNTY, TEXAS; and
WHEREAS, the original lease agreement executed February 12, 1996, further
amended on July 3, 1996, (the "Lease"), was executed by and between Arena Tower
II Corporation, as Landlord (herein referred to as "Lessor"), and CardMember
Publishing Corporation, as Tenant (herein referred to as "Lessee"), pertaining
to Suite 2000 (the "Leased Premises") consisting of approximately 26,579
rentable square feet, located at 7324 Southwest Freeway, Houston, Harris County,
Texas; and
WHEREAS Landlord is the current lessor, as present owner of the Property
and Lessor and Lessee desire to amend the Lease to evidence an expansion
consisting of approximately 5,612 square feet, known as Suite 1980 located on
the 19th floor of Arena Tower II and the change of the leasehold name.
NOW, THEREFORE, for good and valuable consideration, the parties hereto
agree that the Lease is hereby amended and this Third Amendment supersedes all
other amendments as follows:
LEASEHOLD NAME: All reference to "CARDMEMBER PUBLISHING CORPORATION", as Tenant
in the Lease are hereby deleted and replaced with "MEMBERWORKS INCORPORATED",
and all references to Tenant in the Lease refer to MEMBERWORKS INCORPORATED.
COMMENCEMENT DATE OF EXPANSION PREMISES: As used herein, "Commencement Date of
Expansion Premises" means the date Tenant's leasehold improvements are
substantially complete (the earliest date estimated to be March 1, 1997) or the
date certified to by Landlord that said leasehold improvements would have been
substantially completed except for delays due on the part of Tenant, its agents
or contractors, including without limitation any delays which constitute Tenant
Delays as defined in the Lease Agreement, but should the Commencement Date be
later than August 1, 1997 the Commencement Date shall be deemed to be August 1,
1997. Notwithstanding the foregoing, if Tenant occupies all or any part of the
Premises for its intended use by Tenant's employees (installation of furniture
is not considered occupancy) prior to August 1, 1997, the Commencement Date
shall be the date of such occupancy. Within five (5) days after the
Commencement Date and at any time thereafter upon the request of Landlord,
Tenant shall execute and deliver to Landlord a declaration (in the form
attached as Exhibit "D") specifying the actual date upon which the commencement
of the Expansion Term occurred. The Commencement Date of Expansion Premises,
Expiration Date and commencement of installments of Base Monthly Rent or
Additional Rent shall not be postponed or delayed as a result of any Tenant
Delay as defined in the Lease.
PREMISES & TERM: Pursuant to the Lease Agreement Section 17.18, Additional
Provisions, Expansion Option & Recurring Preferential Right, Lessee has the
right to expand the Leased Premises on the 19th floor and has agreed to do so
by taking an additional 5,612 square feet. Therefore, Section 1.01 of the Lease
Agreement is hereby amended to reflect Lessee's expansion into Suite 1980,
consisting of approximately 5,612 square feet, thus increasing the Premises
from 26,579 to 32,191 square feet, per attached Exhibit "A", commencing on or
before August 1, 1997, in accordance with the paragraph above, and expiring on
the expiration date of the Lease Agreement.
Tenant has exercised its Expansion Option as provided for in the Lease
Agreement and the Recurring Preferential Right, as defined in Section 17.18 of
the Lease Agreement, shall continue to be in effect upon execution of this
Second Amendment.
BASE MONTHLY RENT: The base monthly rental shall be increased to reflect a Base
Monthly Rent of $33,532.29 from Commencement Date of the Second Expansion
Premises, as described above, through July 31, 2006.
TENANT IMPROVEMENTS: Lessor agrees to provide Lessee with a Tenant Improvement
Allowance in accordance with the allowance formula illustrated in the second
paragraph of the Lease Agreement (Section 17.18, paragraph 8). The formula
illustrates an allowance of $12.40 per square foot for additional space
commencing on April 1, 1997 but will be adjusted based upon the actual
commencement date of the expansion premises. If, August 1, 1997, the allowance
shall be adjusted to $11.61. Lessor agrees Lessee has the right to contract
directly with the general contractor for the construction of the Expansion
Premises. Lessee shall be responsible for all costs of the improvements
(including architectural and engineering costs necessary to complete the
improvements), notwithstanding however, upon completion of the improvements
Lessee may submit to Lessor a correct invoice from the general contractor
indicating the full extent of the work performed. Within fifteen (15) days of
receipt of such invoice from the general contractor, Lessor shall pay to Lessee
the Tenant Improvement Allowance amount of such as determined in accordance
with the above mentioned formula based upon the date of substantial completion
or occupancy of the Expansion Premises by Tenant, whichever is first. Lessor
and Lessee will select a mutually agreeable general contractor in accordance
with the third paragraph of Exhibit "C" of the Lease Agreement for making
improvements according to approved plans. The mechanical, electrical and
plumbing contracts shall be paid as part of the general contractor's contract.
No payments will be made to the general contractor by Lessor.
<PAGE> 2
TERMINATION OPTION: It is expressly understood that Tenant shall have the right
to terminate this Amendment along with the Lease Agreement in accordance with
the Termination Option as identified in Section 17.18 of the Lease Agreement.
Except as amended herein, all terms and conditions shall remain in full force
and effect according to the Lease.
Executed on the 24th day of January, 1997.
TENANT:
MEMBERWORKS INCORPORATED
BY: /s/ STEVEN H. LEVENHERZ
-------------------------------------------
STEVEN H. LEVENHERZ, Senior Vice President
LANDLORD:
ARENA TOWER II CORPORATION
BY: /s/ LARRY WONG
-------------------------------------------
LARRY WONG, PRESIDENT
<PAGE> 3
EXHIBIT "A"
[FLOOR PLAN]
Arena Tower 2 LEVEL 19
UPDATE: September 27, 1995
Harry Gendel Architects
[SCALE ILLUSTRATION]
<PAGE> 1
EXHIBIT 10.25
THIRD AMENDMENT
THIRD AMENDMENT TO THE LEASE AGREEMENT EXECUTED BY AND BETWEEN ARENA TOWER II
CORPORATION ("LANDLORD"), AND MEMBERWORKS INCORPORATED ("TENANT"), FOR LEASED
PREMISES DEFINED AS SUITE 2000 AND 1990, ARENA TOWER II, 7324 SOUTHWEST
FREEWAY, HOUSTON, HARRIS COUNTY, TEXAS; and
WHEREAS, the original lease agreement executed February 12, 1996,
further amended on July 3, 1996 to evidence an expansion and on January 24, 1997
to evidence the name change and a further expansion (the "Lease"), was executed
by and between Arena Tower II Corporation, as Landlord (herein referred to as
"Lessor"), and CardMember Publishing Corporation, now known as MemberWorks
Incorporated, as Tenant (herein referred to as "Lessee"), pertaining to Suite
2000 and 1990 (the "Leased Premises") consisting of approximately 32,191
rentable square feet, located at 7324 Southwest Freeway, Houston, Harris
County, Texas; and
WHEREAS Landlord is the current Lessor, as present owner of the
Property and Lessor and Lessee desire to amend the Lease to evidence an
expansion consisting of approximately 4,977 square feet, known as Suite 1920
located on the 19th floor of Arena Tower II on November 1, 1997 and an
expansion of approximately 3,463 square feet, known as Suite 1940 located on
the 19th floor of Arena Tower II on April 1, 1998.
NOW THEREFORE, for good and valuable consideration, the parties hereto
agree that the Lease is hereby amended as follows:
COMMENCEMENT DATE OF EXPANSION PREMISES: As used herein, "Commencement Date of
Preferential Right Space" means the earlier of: (a) the date Tenant's leasehold
improvements are substantially complete (or the date certified to by Landlord
that said leasehold improvements would have been substantially completed except
for delays due on the part of Tenant, its agents or contractors, including
without limitation any delays which constitute Tenant Delays as defined in the
Lease Agreement; or (b) November 1, 1997 for Suite 1920 and April 1, 1998 for
Suite 1940. Notwithstanding the foregoing, if Tenant occupies all or any part of
the Premises for its intended use by Tenant's employees (installation of
furniture is not considered occupancy) prior to (a) or (b) above, the
Commencement Date shall be the date of such occupancy. The Commencement Date of
Preferential Right Space, Expiration Date and commencement of installments of
Base Monthly Rent or Additional Rent shall not be postponed or delayed as a
result of any Tenant Delay as defined in the Lease.
PREMISES & TERM: Pursuant to the Lease Agreement Section 17.18, Additional
Provisions, Expansion Option & Recurring Preferential Right, Lessee has the
preferential right to expand the Leased Premises on the 19th floor into a
portion of said amount of space equaling 8,440 square feet of Net Rentable Area.
Therefore, Section 1.01 of the Lease Agreement is hereby amended to reflect
Lessee's exercise of its Preferential Right for Suite(s) 1920 and 1940
consisting of approximately 8,440 square feet, thus increasing the Premises
from 32,191 to 37,168 square feet, per attached Exhibit "A", commencing on or
about November 1, 1997 and expiring on the expiration date of the Lease
Agreement and furthermore increasing the Premises from 37,168 to 40,631 square
feet, per attached Exhibit "A" commencing on April 1, 1998 and expiring on the
expiration date of the Lease.
Tenant has exercised its Expansion Option as provided for in the Lease
Agreement and the Recurring Preferential Right, as defined in Section 17.18 of
the Lease Agreement, shall continue to be in effect upon execution of this
Third Amendment.
BASE MONTHLY RENT: The base monthly rental shall be increased to reflect a Base
Monthly Rent of $38,716.67 commencing on November 1, 1997 through March 31,
1998, then $42,323.96 for the period of April 1, 1998 through July 31, 2006.
TENANT IMPROVEMENTS: Lessor agrees to provide Lessee with a Tenant Improvement
Allowance in accordance with the allowance formula illustrated in the second
paragraph of the Lease Agreement (Section 17.18, paragraph 8). The formula
illustrates an allowance for Suite 1920, of $11.02 per square foot for
additional space commencing on November 1, 1997 but will be adjusted based upon
the actual commencement date of the Preferential Right Space and an allowance,
for Suite 1940, of $10.04 per square foot for additional space commencing on
April 1, 1998 but will be adjusted based upon the actual commencement date of
the Preferential Right Space. Lessor agrees Lessee has the right to contract
directly with the general contractor for the construction of the Preferential
Right Spaces. Lessee shall be responsible for all costs of the improvements
(including architectural and engineering costs necessary to complete the
improvements), notwithstanding however, upon completion of the improvements
Lessee may submit to Lessor a correct invoice from the general contractor
indicating the full extent of the work performed. Within fifteen (15) days of
receipt of such invoice from the general contractor, Lessor shall pay to Lessee
the Tenant Improvement Allowance amount of such as determined in accordance with
the above mentioned formula based upon the date of substantial completion or
occupancy of the Preferential Right Spaces by Tenant, whichever is first. Lessor
and Lessee will select a mutually agreeable general contractor in accordance
with the third paragraph of Exhibit "C" of the Lease Agreement for making
improvements according to approved plans. The mechanical, electrical and
plumbing contracts shall be paid as part of the general contractor's contract.
No payments will be made to the general contractor by Lessor.
<PAGE> 2
PARKING: Landlord shall provide Tenant up to eighty-seven (87) additional
unreserved parking spaces at $25.00 per month for each space and up to ten (10)
reserved parking spaces at $50.00 per month for each space, in the parking
garage in locations which Landlord may designate, from time to time. It is
understood that such spaces shall be provided for the term of the Lease in
addition to those previously provided for in the Lease. Tenant shall pay for
such spaces actually utilized on a monthly basis as Rent.
TERMINATION OPTION: It is expressly understood that Tenant shall have the right
to terminate this Amendment along with the Lease Agreement in accordance with
the Termination Option as identified in Section 17.18 of the Lease Agreement.
RELOCATION OF EXISTING TENANT: It is expressly understood that Tenant shall not
be responsible for any relocation costs of the existing tenant in Suite 1940,
if such are required.
Except as amended herein, all terms and conditions shall remain in full force
and effect according to the Lease.
Executed on the 23rd day of July 1997.
TENANT:
MEMBERWORKS INCORPORATED
BY: /s/ Steven H. Levenherz
--------------------------------
STEVEN H. LEVENHERZ
LANDLORD:
ARENA TOWER II CORPORATION
BY: /s/ Larry Wong
--------------------------------
LARRY WONG, PRESIDENT
<PAGE> 3
Arena Tower 2 LEVEL 19
UPDATE: September 27, 1995
[FLOOR PLAN]
Harry Gendel Architects
Suite 1905
1369 sq. ft.
Suite 1920
3608 sq. ft.
Suite 1940
3463 sq. ft.
[SCALE ILLUSTRATION]
<PAGE> 1
EXHIBIT 10.26
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT is made and entered into on this 23rd day of
June 1997, by and between Brenmar Marketing Company, Inc. hereinafter referred
as "Sublessor" and MemberWorks, Inc. hereinafter referred to as "Sublessee".
WHEREAS, Sublessor (as tenant) entered into a Lease Agreement and
Addendum dated June 23, 1995, which is attached hereto and made totally a part
hereof as Exhibit "A" and is hereinafter referred to as the "Lease". Sublessor
wishes to sublease certain warehouse space, hereinafter referred to as the
"warehouse space" in a building at 11010 John Galt Boulevard Omaha, Nebraska,
said building hereinafter referred to as the "Building";
WHEREAS, Sublessor desires to sublet to Sublessee, and Sublessee desires
to sublet from Sublessor, 11010 John Galt Boulevard, comprising approximately
7150 square feet, hereinafter referred to as the "Premises" as shown on the
attached Exhibit "A"; and
WHEREAS, Sublessor and Sublessee desire to set forth herein their
understandings and agreements.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
premises of the parties herein contained, and of other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending legally to be bound, hereby agree as follows:
1. Sublease of Premises. Sublessor does hereby sublease to
Sublessee, and Sublessee does hereby sublease from Sublessor, the Premises, at
the rent, and upon the terms, covenants and conditions as hereinafter provided.
2. Term. The term of this Sublease shall commence on or about
July 1, 1997 and shall terminate July 31, 1998. However, Sublessee will have
the utilities placed in their name upon taking occupancy. All other terms of
this Sublease shall apply during the occupancy.
3. Rent. Sublessee hereby agrees to pay Sublessor rent as follows:
$2,826.25 per month, payable in equal monthly installments in advance,
commencing on first and continuing monthly thereafter on the first of each
month. Payment of rent shall be made, without set-off, deduction or demand, to
Sublessor at 110 Q Business Center Suite 103 Omaha, NE 68137, or at such other
place as Sublessor may at any time designate in writing. Said rent is based
upon all terms and conditions contained in the Lease attached. The total rental
payments due Sublessor from Sublessee under the Sublease is $36,741.25.
4. Subletting. Sublessee shall not have the right to sublet any
part or all of the Premises without the prior written consent of Sublessor and
Lessor which consent of Sublessor shall not be unreasonably withheld.
5. Binding Effect of the Lease. Except as set forth above, and
with respect to the Sublessor only, Sublessee shall be bound by, and hereby
agrees to abide by, all of the terms, conditions and covenants to which
Sublessor is bound in its capacity as "Lessee" under and pursuant to the
provisions of the Lease. In the event the Sublessee fails to pay any rental
when due or fails to keep or perform any any other condition or term the
"Lessee" thereunder and Sublessor was the
<PAGE> 2
"Lessor" and Sublessor may avail itself of any and all remedies set forth in
the Lease. If Sublessor fails to pay any rental when due or fails to keep or
perform any other condition or term hereunder, Sublessee shall not be
responsible and may avail itself of any and all remedies set forth in the
Lease. Sublessee hereby covenants and agrees to perform the undertakings of
Sublessor (as tenant) under the Lease to the extent the same are applicable to
the terms and Premises herein; and to refrain from taking any action or
suffering any condition to exist which constitutes a violation of the Lease. It
is hereby agreed, however, that Sublessor shall not be in default under this
Sublease for failure to perform any work or make any repairs to the Premises or
provide services or utilities which are the responsibility of Lessor (as
landlord) under the Lease, but Sublessor shall take all reasonable measures to
insure that Lessor performs such work and repairs in a business precedent
timely manner upon written notice of the need for making said repairs by
Sublessee. In addition, Sublessee shall have all the rights and privileges of
the Sublessor under the Lease with respect to the possession, occupancy and use
of the Premises.
6. Condition of Premises. Sublessee acknowledges that it has
inspected the Premises, and is fully satisfied therewith. Sublessor has made no
representations or warranties with regard to the Premises except as set forth
herein; and, except as set forth herein, Sublessor shall have no obligation or
duty to prepare the Premises for occupancy by Sublessee.
7. Notices. Any and all notices required or permitted herein shall be
in writing and mailed by certified or registered mail, return receipt
requested, and first-class postage prepaid (i) if to Sublessor, 110 Q Business
Center Suite 103 Omaha, NE 68137, and (ii) if to Sublessee, 11165 Mill Valley
Road Omaha, NE 68154.
8. Condition Precedent. The parties hereto shall have no rights or
obligations hereunder until and unless Lessor consents to this Agreement, as
evidenced by the signature of a duly authorized officer of Lessor appearing
below on this Sublease.
9. Security Deposit. As partial consideration for the execution of
this Sublease, the Sublessee has delivered to Sublessor the sum of $2,826.25 as
a Security Deposit. The Security Deposit will be returned to Sublessee at the
expiration of this Sublease if Sublessee has fully complied with all covenants
and conditions of this Sublease.
10. Premises Improvements. None.
11. Liability Insurance. Sublessee agrees to procure and maintain
continuously during the entire term of this Sublease, a policy of insurance in
a company acceptable to Landlord, at Sublessee's own cost and expense, insuring
Landlord, Sublessor and Sublessee from all claims, demands or actions; such
comprehensive insurance shall protect and name the Sublessee as the insured and
shall provide coverage of at least $1,000,000.00 for injuries to any one
person, $1,000,000.00 for injuries to persons in any one accident and
$500,000.00 for damage to property, made by or on behalf of any person or
persons, firm or corporation arising from, related to, or connected with the
conduct and operation of Sublessee's business in the Premises, or arising out
of and connected with the use and occupancy of sidewalks and other Common Areas
by the Sublessee.
<PAGE> 3
IN WITNESS WHEREOF, this Sublease Agreement has been executed this 23rd
day of June, 1997.
SUBLESSOR Brenmer Marketing Company, Inc.
---------------------------------
- --------------------------------- -------------------------------------------
Date By:
SUBLESSEE MemberWorks, Inc.
---------------------------------
June 23, 1997 /s/ Deborah J. Podrozo
- --------------------------------- -------------------------------------------
Date By:
LESSOR James R. and Cathleen A. Vanhauer
------------------------------------
- --------------------------------- -------------------------------------------
Date By:
THIS IS A LEGALLY BINDING CONTRACT. IF NOT UNDERSTOOD, SEEK FURTHER ADVICE.
<PAGE> 1
MEMBERWORKS INCORPORATED
EXHIBIT 11 - STATEMENT RE COMPUTATION OF PER SHARE EARNINGS
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Year ended
Net loss per share: June 30, 1997
- ------------------- -------------
<S> <C>
Net loss $ (3,858)
Preferred stock dividends and accretion (980)
--------
Net loss attributable to common stock $ (4,838)
========
Weighted average number of common shares outstanding 13,901
========
Net loss per share $ (0.35)
========
Year ended
Supplementary net loss per share: June 30, 1997
- --------------------------------- -------------
Net loss $ (3,858)
Preferred stock dividends and accretion (537)
--------
Net loss attributable to common stock $ (4,395)
========
Weighted average number of common shares outstanding 13,901
Effect of assumed redemption of Series E and F preferred stock
using 146 common shares as of the beginning of the period 44
--------
Weighted average number of common shares outstanding as adjusted 13,945
========
Supplementary net loss per share $ (0.32)
========
Year ended
Unaudited pro forma net loss per share: June 30, 1996
- --------------------------------------- -------------
Net loss $ (5,247)
Preferred stock dividends (154)
--------
Net loss attributable to common stock $ (5,401)
========
Weighted average number of shares of Class A common
stock and Common Stock outstanding 5,683
Automatic conversion of Series A, B, C, D and H preferred
stock and redemption of Series E and F preferred stock 6,610
Stock options granted one year prior to filing 448
--------
Weighted average number of common shares outstanding as adjusted 12,741
========
Pro forma net loss per share $ (0.42)
========
</TABLE>
<PAGE> 1
EXHIBIT 21 - SUBSIDIARIES OF THE REGISTRANT
The following are directly or indirectly wholly-owned subsidiaries of the
Registrant:
<TABLE>
<CAPTION>
Subsidiary Jurisdiction of Incorporation
- ---------- -----------------------------
<S> <C>
Cardmember Publishing Corporation Delaware
Cardmember Marketing Corporation Delaware
Cardmember Services Corporation Delaware
Impaq Marketing Corporation Delaware
Travel Too Limited Delaware
</TABLE>
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-8 (Nos. 333-20235, 333-20237, 333-20241, and 333-23161) of
MemberWorks Incorporated of our report dated July 29, 1997 appearing in Appendix
B to this Annual Report on Form 10-K. We also consent to the incorporation by
reference of our report on the Financial Statement Schedule, which appears on
page 17 of this Form 10-K.
PriceWaterhouse LLP
New York, New York
September 29, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-START> JUL-01-1996
<PERIOD-END> JUN-30-1997
<CASH> 40,758
<SECURITIES> 0
<RECEIVABLES> 3,193
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 77,686
<PP&E> 9,076
<DEPRECIATION> 2,699
<TOTAL-ASSETS> 84,423
<CURRENT-LIABILITIES> 69,955
<BONDS> 0
0
0
<COMMON> 149
<OTHER-SE> 13,881
<TOTAL-LIABILITY-AND-EQUITY> 84,423
<SALES> 0
<TOTAL-REVENUES> 79,174
<CGS> 0
<TOTAL-COSTS> 83,962
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (930)
<INCOME-PRETAX> (3,858)
<INCOME-TAX> 0
<INCOME-CONTINUING> (3,858)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,858)
<EPS-PRIMARY> (.35)
<EPS-DILUTED> (.35)
</TABLE>
