<PAGE> 1
================================================================================
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------
FORM 10-Q
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934.
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1998
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934.
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER 0-28834
ABACUS DIRECT CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 84-1118166
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8774 YATES DRIVE,
WESTMINSTER, COLORADO 80030
(Address of principal executive offices) (Zip Code)
(303) 657-2800
(Registrants telephone number, including area code)
Indicate by checkmark 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 [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date. Common Stock, $0.001 par value:
9,719,583 shares outstanding as of August 7, 1998.
================================================================================
<PAGE> 2
ABACUS DIRECT CORPORATION
INDEX TO FORM 10-Q
JUNE 30, 1998
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Statements of Operations 3
Balance Sheets 4
Statements of Cash Flows 5
Notes to Condensed Financial Statements 6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS 7
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES
ABOUT MARKET RISK 11
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF
SECURITY HOLDERS 12
ITEM 5. OTHER INFORMATION 12
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 13
SIGNATURE 14
INDEX TO EXHIBITS 15
</TABLE>
2
<PAGE> 3
PART I
ITEM 1. FINANCIAL STATEMENTS
ABACUS DIRECT CORPORATION
STATEMENTS OF OPERATIONS -- UNAUDITED
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
---------------------------- ----------------------------
1998 1997 1998 1997
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Net revenues $ 9,367 $ 5,986 $ 18,449 $ 11,511
Cost of revenues 2,256 1,285 4,227 2,589
----------- ----------- ----------- -----------
Gross profit 7,111 4,701 14,222 8,922
Operating expenses:
Selling and marketing 2,911 1,859 5,936 3,365
General and administrative 1,123 846 2,244 1,715
Research and development 409 346 851 711
----------- ----------- ----------- -----------
Total operating expenses 4,443 3,051 9,031 5,791
----------- ----------- ----------- -----------
Income from operations 2,668 1,650 5,191 3,131
Interest and other income, net 168 58 305 121
----------- ----------- ----------- -----------
Income before income taxes 2,836 1,708 5,496 3,252
Provision for income taxes 1,035 623 2,006 1,187
=========== =========== =========== ===========
Net income $ 1,801 $ 1,085 $ 3,490 $ 2,065
=========== =========== =========== ===========
Net income per common share -- basic $ 0.19 $ 0.11 $ 0.36 $ 0.22
Net income per common share -- diluted $ 0.18 $ 0.11 $ 0.34 $ 0.21
Weighted average number of outstanding
common shares -- basic 9,712 9,531 9,692 9,518
Weighted average number of outstanding
common shares -- diluted 10,236 9,984 10,202 9,992
</TABLE>
See accompanying Notes to Condensed Financial Statements
3
<PAGE> 4
ABACUS DIRECT CORPORATION
BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1998 1997
------------ ------------
(UNAUDITED)
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 13,496 $ 10,490
Accounts receivable (less allowance for doubtful accounts
of $558 and $787 at June 30, 1998 and December 31, 1997,
respectively) 8,702 8,120
Prepaid expenses and other assets 409 391
Income tax receivable -- 52
Deferred tax assets 474 474
------------ ------------
Total current assets 23,081 19,527
Property and equipment, net 3,708 3,065
============ ============
Total assets $ 26,789 $ 22,592
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 238 $ 220
Accrued expenses and other 2,699 3,180
Income taxes payable 277 --
------------ ------------
Total current liabilities 3,214 3,400
Long-term obligations under capital lease 8 15
Commitments and contingencies -- --
Stockholders' equity:
Preferred stock, $1.00 par value, 1,000 shares authorized;
no shares issued and outstanding -- --
Common stock, $0.001 par value; 25,000 shares authorized;
9,719 and 9,638 shares issued and outstanding at June 30,
1998 and December 31, 1997, respectively 10 10
Additional paid-in capital 7,801 6,902
Retained earnings 15,756 12,265
------------ ------------
Total stockholders' equity 23,567 19,177
------------ ------------
Total liabilities and stockholders' equity $ 26,789 $ 22,592
============ ============
</TABLE>
See accompanying Notes to Condensed Financial Statements
4
<PAGE> 5
ABACUS DIRECT CORPORATION
STATEMENTS OF CASH FLOWS -- UNAUDITED
(IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
------------------------
1998 1997
---------- ----------
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 3,490 $ 2,065
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization 730 480
Loss on sale of equipment 1 3
Changes in assets and liabilities:
Accounts receivable, net (582) (1,970)
Prepaid expenses and other assets (18) (212)
Accounts payable 18 54
Accrued expenses (481) (112)
Income taxes payable 720 (20)
---------- ----------
Net cash provided by operating activities 3,878 288
INVESTING ACTIVITIES
Purchases of property and equipment (1,373) (1,349)
Proceeds from sales of equipment -- 3
---------- ----------
Net cash provided by (used in) investing activities (1,373) (1,346)
FINANCING ACTIVITIES
Principal payments on long-term debt (7) (7)
Issuance (repurchases) of stock 508 51
---------- ----------
Net cash provided by (used in) financing activities 501 44
---------- ----------
Net increase (decrease) in cash 3,006 (1,014)
Cash and cash equivalents at beginning of period 10,490 5,924
========== ==========
Cash and cash equivalents at end of period $ 13,496 $ 4,910
========== ==========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
Interest paid $ 1 $ 2
Income taxes paid $ 1,409 $ 1,207
SUPPLEMENTAL SCHEDULE OF NON-CASH INVESTING AND
FINANCING ACTIVITIES
Additional paid-in capital-- exercise of non-qualified stock options $ 391 $ 335
</TABLE>
See accompanying Notes to Condensed Financial Statements
5
<PAGE> 6
ABACUS DIRECT CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
NOTE 1. INTERIM FINANCIAL INFORMATION.
These condensed financial statements are unaudited and have been
prepared by Abacus Direct Corporation (the "Company") in accordance with
generally accepted accounting principles for interim financial information and
with the instructions under Rule 10-01 of Regulation S-X. Accordingly, they do
not include all of the information and footnotes required by generally accepted
accounting principles for complete financial statements. In the opinion of
management, all adjustments (consisting only of normal recurring adjustments)
considered necessary for a fair presentation have been reflected in these
condensed financial statements. Operating results for the quarter are not
necessarily indicative of the results that may be expected for the year ending
December 31, 1998. Certain reclassifications have been made in the fiscal 1997
financial statements to conform to the 1998 presentation. For further
information, refer to the financial statements and footnotes thereto included in
the Company's Annual Report on Form 10-K for the year ended December 31, 1997.
6
<PAGE> 7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
The following discussion may be understood more fully by reference to
the financial statements, notes to the financial statements, and management's
discussion and analysis contained in the Company's Annual Report on Form 10-K
for the year ended December 31, 1997, as filed with the Securities and Exchange
Commission.
RESULTS OF OPERATIONS
Three Months Ended June 30, 1998 Compared to Three Months Ended June 30, 1997
Revenues. Revenues increased 56.5% to $9.4 million for the three months
ended June 30, 1998 from $6.0 million for the three months ended June 30, 1997
due primarily to an increase in sales to existing customers, revenues from new
customers and revenues from tests associated with developing direct marketing
initiatives outside the consumer catalog industry. Revenues from existing
customers, those customers that joined the Abacus Alliance prior to the second
quarter of 1997, accounted for 87.8% of total revenues for the three months
ended June 30, 1998 while customers joining the Alliance after that period
represented 12.2% of revenues.
Cost of Revenues. Cost of revenues increased 75.5% to $2.3 million for
the three months ended June 30, 1998 from $1.3 million for the three months
ended June 30, 1997 due primarily to an increase in staff, depreciation and
processing costs associated with supporting higher revenues. Cost of revenues
increased as a percentage of net revenues to 24.1% for the three months ended
June 30, 1998 from 21.5% for the three months ended June 30, 1997, due primarily
to an increase in staffing levels and higher software, hardware and systems
processing costs required to support higher revenues.
Selling and Marketing Expenses. Selling and marketing expenses
increased 56.5% to $2.9 million or 31.1% of net revenues for the three months
ended June 30, 1998 from $1.9 million or 31.1% of net revenues for the three
months ended June 30, 1997. The increase in selling and marketing expenses is
due primarily to an increase in sales staff and associated expenses, higher
commissions as a result of significantly higher revenues, and the addition of
marketing personnel dedicated to developing new direct marketing initiatives
outside of the consumer catalog industry. The increase in the Company's sales
force is intended to reduce the average number of accounts serviced by an
account manager, improve customer service, and derive more revenues from
customers. The Company continued its development of direct marketing initiatives
outside the consumer catalog industry during the second quarter of 1998. Through
the initial stages of development, the Company has incurred, and expects to
continue to incur, costs in personnel, statistical modeling and other related
areas without an offsetting increase in revenues. While early testing in these
areas and initial customer response appear favorable, there can be no assurance
that meaningful revenues will be generated from these initiatives.
General and Administrative. General and administrative expenses
increased 32.8% to $1.1 million for the three months ended June 30, 1998 from
$846,000 for the three months ended June 30, 1997. The increase in general and
administrative expenses resulted primarily from an increase in staff to support
overall Company growth, higher professional fees and an increase in rent.
General and administrative expenses for the three months ended June 30, 1998
decreased to 12.0% of net revenues compared to 14.1% for the three months ended
June 30, 1997 due primarily to the fixed cost nature of certain expenses which
did not increase proportionately with the growth in revenues.
Research and Development. Research and development expenses increased
18.3% to $409,000 or 4.4% of net revenues for the three months ended June 30,
1998 from $346,000 or 5.8% of net revenues for the three months ended June 30,
1997. The increase in expense resulted from additional staff and development
efforts to achieve performance improvements in service efficiency in addition to
the development of new services.
7
<PAGE> 8
Operating Profit. Operating profit increased 61.7% for the three months
ended June 30, 1998 to $2.7 million or 28.5% of net revenues from $1.6 million
or 27.6% of net revenues for the three months ended June 30, 1997. The increases
in operating profit and operating margin are due primarily to the combined
effect of higher revenues and the fixed cost nature of certain expenses, which
did not increase proportionately. The improvement in operating profit and margin
was partially offset by growing investments in the development of direct
marketing initiatives outside the consumer catalog industry and the increase in
sales staff.
Interest and Other Income, Net. Net interest income for the three
months ended June 30, 1998 increased 187.8% to $168,000 from $58,000 for the
three months ended June 30, 1997. The increase in interest income was due
primarily to interest earned on higher Company cash balances resulting from
internally generated funds.
Income Taxes. The Company's provision for income taxes for the three
months ended June 30, 1998 increased to $1.0 million from $623,000 for the same
period in 1997. For the three months ended June 30, 1998 and 1997, the Company's
effective income tax rate was 36.5%.
Net Income. Net income for the three months ended June 30, 1998
increased 66.0% to $1.8 million or $0.18 per common share (diluted) compared
with net income of $1.1 million or $0.11 per common share (diluted) for the
three months ended June 30, 1997. The increase in net income and net income per
common share reflects higher operating and net interest income.
Six Months Ended June 30, 1998 Compared to Six Months Ended June 30, 1997
Revenues. Revenues increased 60.3% to $18.4 million for the six months
ended June 30, 1998 from $11.5 million for the six months ended June 30, 1997
due primarily to an increase in sales to existing customers, revenues from new
customers and revenues from tests associated with developing direct marketing
initiatives outside the consumer catalog industry.
Cost of Revenues. Cost of revenues increased 63.3% to $4.2 million for
the first six months ended June 30, 1998 from $2.6 million for the first six
months ended June 30, 1997, due primarily to an increase in staff, depreciation
and processing costs associated with supporting higher revenues. Cost of
revenues increased as a percentage of net revenues to 22.9% for the six months
ended June 30, 1998 from 22.5% for the six months ended June 30, 1997, due
primarily to an increase in staffing levels and higher software, hardware and
systems processing costs required to support higher revenues.
Selling and Marketing Expenses. Selling and marketing expenses
increased 76.4% to $5.9 million or 32.2% of net revenues for the six months
ended June 30, 1998 from $3.4 million or 29.2% of net revenues for the six
months ended June 30, 1997. The increase in selling and marketing expenses is
due primarily to an increase in sales staff and associated expenses, higher
commissions as a result of significantly higher revenues, and the addition of
marketing personnel dedicated to developing new direct marketing initiatives
outside of the consumer catalog industry. The increase in the Company's sales
force is intended to reduce the average number of accounts serviced by an
account manager, improve customer service, and derive more revenues from
customers. The Company continued its development of direct marketing initiatives
outside the consumer catalog industry during the second quarter of 1998. Through
the initial stages of development, the Company has incurred, and expects to
continue to incur, costs in personnel, statistical modeling and other related
areas without an offsetting increase in revenues. While early testing in these
areas and initial customer response appear favorable, there can be no assurance
that meaningful revenues will be generated from these initiatives.
General and Administrative. General and administrative expenses
increased 30.8% to $2.2 million for the six months ended June 30, 1998 from $1.7
million for the six months ended June 30, 1997.
8
<PAGE> 9
The increase in general and administrative expenses resulted primarily from an
increase in staff to support overall Company growth, higher professional fees
and an increase in rent. General and administrative expenses for the six months
ended June 30, 1998 decreased to 12.2% of net revenues compared to 14.9% for the
six months ended June 30, 1997 due primarily to the fixed cost nature of certain
expenses which did not increase proportionately with the growth in revenues.
Research and Development. Research and development expenses increased
19.7% to $851,000 or 4.6% of net revenues for the six months ended June 30, 1998
from $711,000 or 6.2% of net revenues for the six months ended June 30, 1997.
The increase in expense resulted from additional staff and development efforts
to achieve performance improvements in service efficiency in addition to the
development of new services.
Operating Profit. Operating profit increased 65.8% for the six months
ended June 30, 1998 to $5.2 million or 28.1% of net revenues from $3.1 million
or 27.2% of net revenues for the six months ended June 30, 1997. The increases
in operating profit and operating margin are due primarily to the combined
effect of higher revenues and the fixed cost nature of certain expenses, which
did not increase proportionately. The improvement in operating profit and margin
was partially offset by growing investments in the development of direct
marketing initiatives outside the consumer catalog industry and the increase in
sales staff.
Interest and Other Income, Net. Net interest income for the six months
ended June 30, 1998 increased 151.9% to $305,000 from $121,000 for the six
months ended June 30, 1997. The increase in interest income was due primarily to
interest earned on higher Company cash balances resulting from internally
generated funds.
Income Taxes. The Company's provision for income taxes for the six
months ended June 30, 1998 increased to $2.0 million from $1.2 million for the
same period in 1997. For the six months ended June 30, 1998 and 1997, the
Company's effective income tax rate was 36.5%.
Net Income. Net income for the six months ended June 30, 1998 increased
69.0% to $3.5 million or $0.34 per common share (diluted) compared with net
income of $2.1 million or $0.21 per common share (diluted) for the six months
ended June 30, 1997. The increase in net income and net income per common share
reflects higher operating and net interest income.
SEASONALITY
The Company's business is seasonal in nature. The third and fourth
quarters of each year include the peak selling season during which the Company
supplies the direct marketing industry with data services in advance of the fall
and holiday seasons. In the first and second quarters, orders are fewer and
smaller. As a result, cost of operations, sales and marketing, general and
administrative, and research and development expenses as a percentage of net
revenues are usually higher and operating profit is usually lower during the
first half of each year.
LIQUIDITY AND CAPITAL RESOURCES
The Company's principal sources of liquidity are cash generated from
operations as well as cash and cash equivalents, which totaled approximately
$13.5 million at June 30, 1998. Historically, the Company has funded its
operations through cash flow from operations and debt and equity financing.
Cash provided by operating activities was $3.9 million for the six
months ended June 30, 1998 compared to $288,000 for the six months ended
June 30, 1997. For the six months ended June 30, 1998, the increase in net cash
provided by operating activities was due primarily to higher net income and
lower
9
<PAGE> 10
investment in working capital. Cash provided by operating activities for the six
months ended June 30, 1997 was attributable to higher net income, which was
partially offset by additional investment in working capital, primarily accounts
receivable, to support the increase in net revenues as compared to the same
period during the previous year.
Cash used in investing activities was $1.4 million for the six months
ended June 30, 1998 compared to $1.3 million for the six months ended June 30,
1997. These activities represent capital expenditures for computer equipment and
peripheral systems and office equipment necessary to support growth in the
Company's revenues. For the remainder of 1998, the Company anticipates making
additional investments in its computing infrastructure. Financing activities
have consisted primarily of the issuance of common stock and payments made
pursuant to a capital lease obligation. During the six months ended June 30,
1998, net cash generated from financing activities was $501,000 compared to
$44,000 for the six months ended June 30, 1997 due primarily to higher proceeds
received from the exercise of employee stock options that were partially offset
by principal payments on a capital lease obligation. The Company believes that
its cash flow from operations and cash on hand will provide sufficient resources
to meet its capital requirements and operational needs for the foreseeable
future.
YEAR 2000 ISSUE
For many years, computer systems and applications were often programmed
to assume that the century portion of a date was "19" to conserve the use of
storage and memory. This assumption resulted in the use of two-digits (rather
than four) to define an applicable year. Accordingly, computer systems that rely
on two-digits to define an applicable year may recognize a date using "00" as
the year 1900, rather than the year 2000 (the "Year 2000 Issue"). This could
result in a system failure or miscalculations causing disruptions of operations,
including, among other things, a temporary inability to process or transmit data
or engage in normal business activities.
The Company is currently in the process of assessing its Year 2000
readiness. This assessment includes a review of the Company's internal
information technology systems, non-information technology systems and the
systems of third parties upon which the Company's systems may rely.
Preliminarily, it appears that the Company will be required to modify or replace
its proprietary software so that its computer systems will properly utilize
dates beyond December 31, 1999. The Company presently believes that with
modifications to existing software and, in certain instances, conversions to new
software, the Year 2000 Issue can be mitigated. However, if such modifications
and conversions are not made, or are not completed timely, the Year 2000 Issue
could have a material adverse impact on the operations of the Company.
The Company is in the process of initiating formal communications with
all of its significant suppliers and members of the Abacus Alliance to determine
the extent to which the Company is vulnerable to those third parties' failure to
remediate their own Year 2000 Issues. Presently, the Company is reviewing the
transactional files contributed by the Abacus Alliance members to determine if
those files contain date-sensitive data which may require modification or
conversion to recognize the correct century prior to loading to the Abacus
Alliance database. Similarly, demographic information that is obtained from a
third party and used to enhance the transactional data on the Abacus Alliance
database may also require conversion or modification to be Year 2000 compliant.
To the extent that the systems of third parties or other companies on which the
Company's systems rely are not timely converted or if such conversion is
incompatible with the Company's systems, the Company's operations may be
adversely affected.
The Company will utilize both internal and external resources to
reprogram, or replace, and test the software for Year 2000 modifications. Costs
incurred by the Company in its Year 2000 remediation efforts must be expensed as
incurred. In addition, the replacement of computer hardware or software to
comply with the Year 2000 Issue may result in a charge to income. At this time,
the Company
10
<PAGE> 11
estimates that it will complete its Year 2000 remediation efforts in 1999.
Although the total cost of the Year 2000 project has not yet been finalized, the
Company believes that such costs are not expected to have a material effect on
its results of operations or financial condition.
FORWARD-LOOKING INFORMATION
Certain statements in this Form 10-Q and elsewhere (such as in other
filings by the Company with the Securities and Exchange Commission, press
releases, presentations by the Company or its management and oral statements)
may constitute "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. Such forward-looking statements
include those relating to future opportunities, the outlook of customers, the
expansion of the Abacus Alliance, the reception of new services and
technologies, the Year 2000 Issue, the success of new initiatives and the
likelihood of incremental revenues offsetting expenses related to those new
initiatives. In addition, such forward-looking statements involve known and
unknown risks, uncertainties, and other factors which may cause the actual
results, performance or achievements of the Company to be materially different
from any future results expressed or implied by such forward-looking statements.
Such factors include: (i) demand for the Company's services from the direct
marketing industry; (ii) governmental regulation regarding privacy issues; (iii)
the actions of current and potential new competitors; (iv) rapid changes in
technology; (v) the seasonality and cyclical nature of the direct marketing
industry; (vi) changes in postal rates and paper prices; (vii) the nature and
amount of the Company's revenues and expenses; and (viii) overall economic
conditions and other risks detailed from time to time in the Company's periodic
earnings releases and reports filed with the Securities and Exchange Commission,
as well as the risks and uncertainties discussed in this Form 10-Q.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
The Company is exposed to interest rate risk primarily through its
portfolio of cash equivalents and short-term marketable securities, which is
designed for safety of principal, liquidity and diversification. Such
investments are subject to inherent interest rate risk as they mature and are
renewed at current market rates. The Company does not presently use derivative
financial instruments to adjust its risk profile. The Company is subject to
competitive and fluctuating economic conditions of the direct marketing industry
as a result of the Company's activities in such industry.
11
<PAGE> 12
PART II
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
The Company held its Annual Meeting of Stockholders on June 5, 1998. Of
the 9,700,803 shares of common stock entitled to vote at the meeting, 8,582,453
shares of common stock were present in person or by proxy and entitled to vote.
Such number of shares represented approximately 88.5% of the Company's
outstanding shares of common stock.
At the meeting, the Company's stockholders approved: (i) the election
of M. Anthony White, Daniel C. Snyder, Frank Kenny and Anthony H. Lee ("Proposal
1"); (ii) an amendment to the Company's Amended and Restated 1996 Stock
Incentive Plan to increase by 375,000 the number of shares authorized for
issuance thereunder ("Proposal 2"); and (iii) the appointment of Price
Waterhouse LLP as the Company's independent auditors for the fiscal year ending
December 31, 1998 ("Proposal 3"). Proposals 1, 2 and 3 were approved by the
Company's stockholders as follows:
<TABLE>
<CAPTION>
VOTES
AGAINST OR VOTES BROKER
VOTES FOR WITHHELD ABSTAINING NON-VOTES
--------- ---------- ---------- ---------
PROPOSAL 1
<S> <C> <C> <C> <C>
A. Anthony White 8,511,004 71,449 -- --
Daniel C. Snyder 8,511,004 71,449 -- --
Frank Kenny 8,539,471 42,982 -- --
Anthony H. Lee 8,539,471 42,982 -- --
PROPOSAL 2 7,818,249 712,795 39,865 11,544
PROPOSAL 3 8,526,208 55,285 960 --
</TABLE>
ITEM 5. OTHER INFORMATION.
PROPERTIES
The Company has entered into a lease agreement (the "El Dorado Ridge
Lease"), dated May 22, 1998, with Western States Ventures, LLC (the "Landlord"),
for approximately 75,000 square feet of office space in Broomfield, Colorado.
This facility will be used to consolidate the two leased facilities in
Westminster, Colorado, in which the Company's executive offices and principal
operations are located, whose leases expire during 1999. The El Dorado Ridge
Lease commences on April 1, 1999 and has a term of 7 years that is renewable for
two consecutive five year terms. The lease provides for annual payments as
follows:
<TABLE>
<CAPTION>
LEASE
FISCAL YEAR PAYMENTS
----------- -----------
<S> <C>
1999 $ 676,813
2000 1,160,250
2001 1,160,250
2002 1,181,500
2003 1,241,250
Thereafter 2,792,813
===========
$8,212,876
===========
</TABLE>
12
<PAGE> 13
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits.
The following exhibit is hereby filed as part of this Quarterly Report
on Form 10-Q.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------
<S> <C> <C>
10.01 -- Lease dated May 22, 1998, between Western States
Ventures, LLC, as Landlord, and the Company
27.01 -- Financial Data Schedule (for electronic filing only)
</TABLE>
13
<PAGE> 14
SIGNATURE
In accordance with the requirements of the Securities Exchange Act of
1934, the registrant has caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: August 12, 1998 ABACUS DIRECT CORPORATION
By: /s/ CARLOS E. SALA
------------------------------
Carlos E. Sala
Senior Vice President- Finance
and Chief Financial Officer
14
<PAGE> 15
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------
<S> <C> <C>
10.01 -- Lease dated May 22, 1998, between Western States
Ventures, LLC, as Landlord, and the Company
27.01 -- Financial Data Schedule (for electronic filing only)
</TABLE>
15
<PAGE> 1
OFFICE BUILDING LEASE
WESTERN STATES VENTURES, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY,
AS "LANDLORD"
AND
ABACUS DIRECT CORPORATION,
A DELAWARE CORPORATION,
AS "TENANT"
MAY 22, 1998
<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE(S)
-------
<S><C> <C>
1 Parties ....................................................................1
2 Premises ...................................................................1
3 Term .......................................................................1
4 Security Deposit ...........................................................2
5 Operating Expense Adjustments ..............................................3
6 Possession .................................................................3
7 Rent .......................................................................3
8 Use ........................................................................5
9 Compliance with Law ........................................................5
10 Alterations and Additions ..................................................5
11 Repairs ....................................................................6
12 Liens ......................................................................7
13 Assignment and Subletting ..................................................7
14 Hold Harmless ..............................................................9
15 Subrogation ...............................................................10
16 Liability Insurance .......................................................10
17 Services and Utilities ....................................................10
18 Property Taxes ............................................................11
19 Rules and Regulations .....................................................11
20 Holding Over ..............................................................11
21 Entry by Landlord .........................................................11
22 Reconstruction ............................................................12
23 Default ...................................................................12
24 Remedies in Default .......................................................13
25 Eminent Domain ............................................................14
26 Estoppel Certificate ......................................................14
27 Parking ...................................................................14
28 Authority of Parties ......................................................14
29 Default by Landlord .......................................................15
30 Option to Expand ..........................................................16
31 First Right of Refusal ....................................................16
32 First Right of Offer ......................................................17
33 Option to Extend ..........................................................17
34 Hazardous Materials .......................................................18
35 General Provisions ........................................................19
36 Brokers ...................................................................21
37 Notice ....................................................................21
</TABLE>
-i-
<PAGE> 3
OFFICE BUILDING LEASE
(FOR USE IN THE STATE OF COLORADO)
1. PARTIES
This Office Building Lease ("LEASE"), dated for reference purposes
only May 22, 1998 ("LEASE DATE"), is entered into between WESTERN
STATES VENTURES, LLC, a California limited liability company (herein
called "LANDLORD"), and ABACUS DIRECT CORPORATION, a Delaware
corporation (herein called "TENANT").
2. PREMISES
(a) Landlord does hereby lease to Tenant and Tenant hereby leases
from Landlord that certain space (herein called "PREMISES"),
consisting of approximately seventy-five thousand (75,000) rentable
square feet, known as "SUITE 400," at the building ("BUILDING"),
located at [To Be Determined/bounded by Highway 128 and 120th Street],
Broomfield, Colorado, commonly known as "EL DORADO RIDGE," shown on
Exhibit A attached hereto and hereby made a part hereof, including the
Tenant Improvements ("TENANT IMPROVEMENTS") to be constructed in
accordance with the "WORK LETTER AGREEMENT" attached as Exhibit B
hereto. The Premises shall consist of the entire fourth, third,
second floor, and a portion of the first floor. Said Lease is subject
to the terms, covenants and conditions herein set forth and the Tenant
covenants as a material part of the consideration for this Lease to
keep and perform each and all of said terms, covenants and conditions
by it to be kept and performed and that this Lease is made upon the
condition of said performance. El Dorado Ridge is anticipated, upon
completion of construction, to have two (2) separate buildings, the
first, known as "BUILDING ONE," consisting of approximately one
hundred five thousand (105,000) rentable square feet, generally
described in Exhibit B-1 and the second, the Building referenced in
this Lease. The Building, Building One and the related common
improvements are collectively referred to as the "PROJECT."
(b) The demise of the Premises contained herein shall include a
non-exclusive right for Tenant to use all portions of the Building and
the common areas thereof designated by Landlord for the common use of
all tenants including, without limitation, hallways, restrooms, stairs,
entrances, lobby areas, elevators, parking spaces, driveways and
loading areas. Landlord shall not alter or reduce the common areas or
the Premises in a manner which unreasonably interferes with Tenant's
use or enjoyment of the Premises.
(c) Tenant acknowledges that, as of the Lease Date, Landlord has
not commenced construction of the Project, which construction is
anticipated to begin following the Lease Date when determined by
Landlord. In this regard, Landlord intends to complete construction of
the Building and Tenant Improvements in accordance with the provisions
of the Work Letter Agreement on or before the Expected Occupancy Date
(as hereinafter defined). Prior to the Commencement Date, Landlord
shall cause the Building to be measured to determine the rentable and
usable square footage of the Building and the Premises. Such
measurement shall be in compliance with the Building Owners and
Managers Association Standard Method for Measuring Floor Area within
Office Buildings (ANSI Z65.1-1996). With regard to such determination,
Landlord agrees that a R/U ratio of 1.059% shall not be exceeded for
full floor occupancy, and a R/U ratio of 1.1284% shall not be exceeded
for partial floor occupancy. Landlord shall provide Tenant with a
written summary, certified by its architect, setting forth the
determination of the usable and rentable square footage of the
Premises prior to the Commencement Date consistent with the
above-described measurement standard, which measurement shall be
binding and conclusive upon the parties. Such measurements shall be
confirmed in the First Amendment to Lease and Acknowledgement (as
hereinafter defined).
(d) As of the Commencement Date, Landlord represents and warrants
that the Building (excluding any areas within the Premises constructed
by and/or designed by Tenant), to the extent constructed by Landlord,
its agents, employees, contractors and/or subcontractors, shall (i)
comply with all applicable laws, and (ii) have been constructed in
accordance with the specifications for the Building ("BASE BUILDING
SPECIFICATIONS") set forth in Exhibit B-2 attached hereto.
3. TERM
This Lease is effective between Landlord and Tenant as of the Lease
Date. The term of this Lease shall commence upon the earlier of the
following dates ("COMMENCEMENT DATE"): (i) the date on which the
Premises are Substantially Completed (as defined below), which is
expected to be on April 1, 1999 ("EXPECTED OCCUPANCY DATE"); (ii) the
date on which the Premises would have been Substantially Completed had
there been no delays caused by or attributable to Tenant; or (iii) the
date upon which Tenant takes possession of the Premises with
Landlord's written consent. Notwithstanding the foregoing, excepting
Tenant taking possession of the Premises pursuant to subsection (iii)
above prior to April 1, 1999, in no event shall Tenant be required to
take possession of the Premises prior to (a) April 1, 1999, or (b) the
date that the lobby for the Building is substantially completed
consistent with the Lobby Specifications (as defined in the Work
Letter Agreement). Within thirty (30) days after the Commencement
Date, Landlord and Tenant shall execute and deliver an amendment to
this Lease ("FIRST AMENDMENT TO LEASE AND ACKNOWLEDGEMENT") setting
forth the Commencement Date and the expiration date of the term of the
Lease, the rentable area of the Premises and adjustments to the Base
Rent as a result of an increase or decrease in the rentable area of
the Premises which shall be in the form
-1-
<PAGE> 4
attached hereto as Exhibit C. The Premises shall be deemed to be
"SUBSTANTIALLY COMPLETE" when (i) Tenant has direct access to the
Premises with building services ready to be furnished to Premises and
all construction to be performed by Landlord, as set forth in the Work
Letter Agreement has been completed, with the exception of the Punch
List Items (as hereinafter defined) that do not materially adversely
affect Tenant's use of the Premises as reasonably determined by
Landlord and Tenant, (ii) all major systems and services to be
furnished by Landlord pursuant to the provisions of the Lease are
operational, and (iii) a permanent certificate of occupancy has been
issued for the Premises. The term of this Lease shall be for a period
of seven (7) years following the Commencement Date. Landlord shall
provide Tenant with its good faith estimation of the date of the
Commencement Date at least thirty (30) days prior to such date.
4. POSSESSION
(a) If the Landlord, for any reason whatsoever, cannot cause the
Commencement Date to occur by the Expected Occupancy Date, this Lease
shall not be void or voidable, nor shall the expiration date of the
above term be in any way extended, but in that event, excepting delays
caused by Tenant, all rent shall be abated during the period between
the commencement of said term and the time When Landlord delivers
possession.
(b) In the event that Landlord shall permit Tenant to occupy the
Premises prior to the Commencement Date of the term, such occupancy
shall be subject to all the provisions of this Lease. In this regard,
Tenant shall be entitled to enter the Premises at least twenty (20)
days prior to the Commencement Date for the purpose of installation of
furniture, trade fixtures and equipment, which early occupancy shall
be subject to the terms and conditions of this Lease, excepting the
payment of Base Rent. The parties shall use their respective good
faith efforts to schedule work during such periods so as not to
unreasonably interfere with their respective efforts (the parties
acknowledge that such early entrance may be "Phased" concerning
certain portions of the Premises to allow for the laying of carpet
therein). Said early possession shall not advance the termination date
hereinabove provided. Additionally, subject to the provisions of this
Section, Tenant shall be provided access to the Premises by December
20, 1998, for the purpose of constructing certain improvements in
accordance with the provisions of the Work Letter Agreement. In no
event shall Tenant's use of the Premises pursuant to this Section 4(b)
be deemed to be Tenant's acceptance of possession of the Premises or
constitute the Commencement Date.
(c) Tenant's taking possession of the Premises shall constitute
Tenant's acknowledgment that the Premises are in good condition, and
that Tenant agrees to accept the same in its condition existing as of
the date of such entry and subject to all applicable municipal,
county, state and federal statutes, laws, ordinances, including zoning
ordinances, and regulations governing and relating to the use,
occupancy or possession of the Premises, subject to the Punch List
Item (as hereinafter defined). Notwithstanding the foregoing, within
ten (10) days prior to and within sixty (60) days after the Tenant
takes possession of the Premises, Tenant shall deliver to Landlord a
list of items ("PUNCH LIST ITEMS") that Tenant reasonably deems that
Landlord complete or correct in order for the Premises to be
reasonably acceptable. The Punch List Items shall not include any
damages and/or repairs caused by Tenant, its agents, employees,
contractors or subcontractors. Landlord shall complete and/or correct
such items set forth on the Punch List Items using its good faith
efforts and due diligence within thirty (30) days following receipt of
the Punch List Items; provided, however, that with respect to those
items that Landlord reasonably contends do not require completion
and/or correction, Landlord and Tenant shall negotiate in good faith
for a resolution of such item. If Tenant does not deliver the Punch
List Items to Landlord within such time periods, Tenant shall be
deemed to have accepted the condition of the Premises.
(d) For a period of one (1) year following the Commencement Date
("WARRANTY PERIOD"), Landlord shall warranty the condition of the
Building and the Premises, to the extent that such improvements will
be constructed by Landlord, its agents, employees, contractors and
subcontractors. Following Landlord's receipt of written notice from
Tenant during the Warranty Period, Landlord shall use its commercially
reasonable efforts to complete such warranty repair in a timely basis
as soon as possible. Landlord's repair obligations pursuant to this
Section 4(d) shall be subject to Tenant's rights pursuant to Sections
11(d) and (3) of this Lease. The expiration of the Warranty Period
shall not otherwise affect Landlord's obligations to make certain
repairs as set forth in Section 11(b) of this Lease or effect the
enforcement of any applicable warranty provided by any third party
contractor or materialmen relating to the Building.
(e) Notwithstanding any other provision of Section 4 to the
contrary, in the event that the Commencement Date has not occurred on
or before May 7, 1999 ("OUTSIDE DELIVERY DATE"), for a period of five
(5) business days thereafter, as Tenant's sole and exclusive remedy
(except as set forth in this Section 4(e), Tenant shall have the right
to extend the date upon which Tenant is required to accept possession
of the Premises until October 1, 1999 ("DELAYED DELIVERY DATE"), by
delivery of written notice of such election within such time period;
provided, however, Tenant may accept possession of the Premises at any
time prior to the Delay Delivery Date, which acceptance would
accelerate the Commencement Date to the date of such acceptance. The
failure of Tenant to make such election within such time period shall
be deemed Tenant's waiver of such extension right. In the event that
Tenant makes such election to extend the Commencement Date of this
Lease until the Delayed Delivery Date, this Lease shall remain in full
force and effect, the Commencement Date shall be deemed the Delayed
Delivery Date, the expiration date of the Lease shall be
correspondingly extended, and, except as otherwise provided in this
Section 4(e), all terms and conditions of this Lease shall remain in
full force and effect. The parties acknowledge and agree that the
extension of the Commencement Date under the Delayed Delivery Date
shall cause a material financial impact upon Landlord, accordingly,
each party agrees to use its best commercially reasonable efforts to
cause the Commencement Date to occur on or before the Outside Delivery
Date. Subject to the preceding sentence, the parties acknowledge that
the reason for the delay of the Commencement Date past the Outside
Delivery Date is of material importance to the parties. The parties
hereby agree that in the event the Commencement Date is delayed past
the Outside Delivery Date due solely to delays caused by Landlord, its
agents, employees, contractors or subcontractors, provided that Tenant
has made the election to extend the Commencement Date until the
Delayed Delivery Date, as provided in this Section 4(e), in addition
to any Base Rent-free possession granted to Tenant pursuant to
-2-
<PAGE> 5
Section 5(b) of this Lease, Tenant shall be entitled to thirty-seven
(37) days of Base Rent-free possession of the Premises beginning upon
the sixty-first (61st) day following the Commencement Date of this
Lease, provided, however, if Tenant accepts possession of the Premises
within thirty-seven (37) days following the Outside Delivery Date,
such Base Rent-free period shall be accordingly decreased. In the
event that the Commencement Date is delayed past the Outside Delivery
Date for any reason other than as set forth in the preceding sentence,
which includes, but is not limited to, any form of delay caused by
reasons beyond the control of Landlord or delays caused by Tenant, its
agents, employees, contractors or subcontractors, the granting of the
Base Rent-free period pursuant to the preceding sentence shall not be
applicable.
(f) Notwithstanding any other provision of this Section 4 to the
contrary, in the event that the Commencement Date has not occurred by
November 15, 1999, for a period of fifteen (15) days thereafter,
Tenant shall have the right to terminate this Lease by delivery of
written notice to Landlord, in which case the parties shall have no
further obligations under this Lease. The failure of Tenant to deliver
such notice within such time period shall be deemed a waiver of such
right to terminate.
5. RENT
(a) Tenant agrees to pay to Landlord as "BASE RENT," (annual rent
divided by twelve (12)), without offset, prior notice or demand, for
the Premises, on or before the first day of the first full calendar
month of the term hereof following the Commencement Date and a like
sum on or before the first day of each and every successive calendar
month thereafter during the term hereof. Base Rent for any period
during the term hereof which is for less than one (1) month shall be a
prorated portion of the monthly installment herein, based upon the
actual number of days in such month. Said rental shall be paid to
Landlord, without deduction or offset in lawful money of the United
States of America, which shall be legal tender at the time of payment
at the Office of the Building, or to such other person or at such
other place as Landlord may from time to time designate in writing.
(b) The Base Rent during the term of this Lease shall be as
follows:
<TABLE>
<CAPTION>
Term of this Lease Annual Base Rent Monthly Base Rent
(from Commencement Date) (per rentable square foot) (per rentable square foot)
------------------------ -------------------------- --------------------------
<S> <C> <C>
Months 1 and 2 (first sixty (60)) $0.00 $0.00
days following Commencement
Date
Months 3 through 42 $15.47 $1.2892
Months 43 through 84 $16.55 $1.3792
</TABLE>
(c) Any and all amounts due and payable by Tenant and Landlord
pursuant to this Lease, including, but not limited to Base Rent, shall
be referred to as "RENT."
6. SECURITY DEPOSIT
(None)
7. OPERATING EXPENSE ADJUSTMENTS
(a) For the purpose of this Lease, "DIRECT EXPENSES" shall mean
all direct costs of every kind or nature which Landlord shall pay or
become obligated to pay because of or in connection with management,
ownership, maintenance, repair, replacement, preservation and
operation of the Building and the common areas thereof (various
Project expenses, which are common to both the Building and Building
One shall be included within Direct Expenses on a prorata basis (e.g.
maintenance and cleaning of parking areas)), as determined by
standard accounting practices, calculated, with regard to Direct
Expenses which vary with occupancy only, assuming the Building is
ninety-five percent (95%) occupied, and shall include the following
costs by way of illustration, but not to be limited to: real property
taxes, assessments, bonds (or any substitute therefor) rent taxes,
gross receipt taxes (whether assessed against the Landlord or assessed
against the Tenant and collected by the Landlord, or both
(collectively, "REAL ESTATE TAXES")); the establishment of normal and
customary reasonable annual reserves for capital improvements and
structural repairs; water and sewer charges; insurance premiums for
any form of insurance deemed reasonably prudent by Landlord
("INSURANCE"), provided that (i) such Insurance is in a form and
amounts that other landlords of comparable first-class buildings in
the vicinity of the Building are requiring, and (ii) such Insurance is
actually purchased; utilities of all types servicing the Building and
the common areas ("UTILITIES") (electricity servicing the Premises is
being paid by Tenant directly to the utility provider, accordingly,
such cost shall not be included in Direct Expenses); janitorial
services in accordance with the specification set forth in Exhibit D
attached hereto ("JANITORIAL SERVICES"); labor; costs incurred in the
management of the Building, if any; air conditioning and heating;
elevator maintenance; supplies; materials; equipment and tools;
including maintenance, costs, and upkeep of all parking and common
areas (Direct Expenses shall not include depreciation on the Building
of which the Premises are a part or equipment therein, loan payments,
executive salaries or real estate brokers' commissions, or cost of
tenant improvements installed by Landlord; or attorneys' fees incurred
by Landlord resulting from disputes or lease transactions with
existing tenants of the Building; provided that attorneys' fees
incurred by Landlord which are for the general benefit of all tenants
of the Building shall be included in Direct Expenses; and any expenses
concerning the repair of defects in the Building which are covered by
and corrected pursuant to manufacturer warranties). For the purposes
of determining Tenant's Share (as hereinafter defined) of Direct
Expense, from calendar year to calendar year during the term of this
Lease, Landlord and Tenant agree that increases in Direct Expenses,
excepting the cost of Real Estate Taxes, Insurance and Utilities,
shall not exceed the Direct Expense Cap (as defined below). The Direct
Expense CAP shall not apply to Tenant's Share of the cost of Real
Estate Taxes, Insurance, and Utilities, which costs shall be billed at
actual cost and Tenant shall be responsible for Tenant's Share of such
costs. For the purpose of this Section 7(a), "DIRECT EXPENSE CAP" shall
mean (i) for the first (1st) year of the term of this Lease, the
amount of Five and 25/100ths Dollars ($5.25) per rentable square foot
-3-
<PAGE> 6
of the Premises; (ii) for second (2nd) year of the term of this Lease,
the lesser of (a) the actual amount of Direct Expenses, less Real
Estate Taxes, Insurance, and Utilities, paid by Landlord for the
immediately preceding calendar year multiplied by one hundred five
percent (105%), or (b) the amount of Five and 51/100ths Dollars ($5.51)
per rentable square foot of the Premises; (iii) for third (3rd) year of
the term of this Lease, the lesser of (a) the actual amount of Direct
Expenses, less Real Estate Taxes, Insurance, and Utilities, paid by
Landlord for the immediately preceding calendar year multiplied by one
hundred five percent (105%), or (b) the amount of Five and 79/100ths
Dollars ($5.79) per rentable square foot of the Premises; (iv) for
fourth (4th) year of the term of this Lease, the lesser of (a) the
actual amount of Direct Expenses, less Real Estate Taxes, Insurance,
and Utilities, paid by Landlord for the immediately preceding calendar
year multiplied by one hundred five percent (105%), or (b) the amount
of Six and 08/100ths Dollars ($6.08) per rentable square foot of the
Premises; (v) for fifth (5th) year of the term of this Lease, the
lesser of (a) the actual amount of Direct Expenses, less Real Estate
Taxes, Insurance, and Utilities, paid by Landlord for the immediately
preceding calendar year multiplied by one hundred five percent (105%),
or (b) the amount of Six and 38/100ths Dollars ($6.38) per rentable
square foot of the Premises; (vi) for sixth (6th) year of the term of
this Lease, the lesser of (a) the actual amount of Direct Expenses,
less Real Estate Taxes, Insurance, and Utilities, paid by Landlord for
the immediately preceding calendar year multiplied by one hundred five
percent (105%), or (b) the amount of Six and 70/100ths Dollars ($6.70)
per rentable square foot of the Premises; and (vii) for seventh (7th)
year of the term of this Lease, the lesser of (a) the actual amount of
Direct Expenses, less Real Estate Taxes, Insurance, and Utilities, paid
by Landlord for the immediately preceding calendar year multiplied by
one hundred five percent (105%), or (b) the amount of Seven and
04/100ths Dollars ($7.04) per rentable square foot of the Premises.
Notwithstanding the definition of Direct Expenses, such expenses shall
not include the costs set forth in Exhibit E.
(b) For the first year following the Commencement Date, Landlord
estimates such amount of Direct Expenses for the Building to be Five
and 25/100ths Dollars ($5.25) per rentable square foot, however actual
expenses may vary (the parties acknowledge that such estimate has been
decreased by $1.00 per rentable square foot in recognition of Tenant's
obligation to pay electrical services for the Premises directly to the
utility provider). Tenant shall pay its proportionate share of Direct
Expenses ("TENANT'S SHARE"), as determined by comparing the rentable
square footage of the Premises to the rentable square footage of the
Building, which percentage shall be confirmed in the First Amendment to
Lease and Acknowledgement. Landlord shall give to Tenant on or before
the first day of March of each year a statement ("EXPENSE STATEMENT")
of the actual amount of Direct Expenses for the previous year, but
failure by Landlord to give such statement by said date shall not
constitute a waiver by Landlord of its right to collect any amount
payable hereunder. Landlord shall, in each Expense Statement, estimate
Direct Expenses for the then current year and such estimate shall be
used as an estimate for said current year and this amount shall be
divided into twelve (12) equal monthly installments and Tenant shall
pay to Landlord, concurrently with the regular monthly rent payment
next due following the receipt of such statement, an amount equal to
one (1) monthly installment multiplied by the number of months from
January in the calendar year in which said statement is submitted to
the month of such payment, both months inclusive. Subsequent
installments shall be payable concurrently with the regular monthly
rent payment for the balance of that calendar year and shall continue
until the next Expense Statement is rendered. If the next or any
succeeding year results in an increase in Direct Expenses, then upon
receipt of an Expense Statement from Landlord, Tenant shall pay a lump
sum equal to Tenant's Share of such total increase in Direct Expenses,
less the total of the monthly installments of Direct Expenses paid in
the previous calendar year. If, in any comparison year the Tenant's
Share of Direct Expenses be less than the preceding year, then upon
receipt of the Expense Statement, any overpayment made by Tenant on the
monthly installments basis provided above shall be credited towards the
next monthly rent falling due and the estimated monthly installment of
Direct Expenses to be paid shall be adjusted to reflect such lower
Direct Expenses.
(c) Even though the term has expired and Tenant has vacated the
Premises, when the final determination is made of Tenant's Share of
Direct Expenses for the year in which this Lease terminates, Tenant
shall, within thirty (30) days following such determination, pay any
increase due over the estimated expenses paid and conversely any
overpayment made in the event said expenses decrease shall be
immediately rebated by Landlord to Tenant. Notwithstanding anything
contained in this Article, the rent payable by Tenant shall in no event
be less than the rent specified in Article 5 hereinabove.
(d) For a period of one (1) year after receipt of the Expenses
Statement, Tenant shall be entitled, upon thirty (30) days prior
written notice and during normal business hours, at the office of the
Building's property manager or such other place as Landlord shall
designate, to inspect and examine those books and records of Landlord
relating to the determination of Direct Expenses for the immediately
preceding comparison year. Failure of Tenant to request such inspection
within such time period shall render such Expenses Statement conclusive
and binding on Tenant. If, after inspection and examination of such
books and records, Tenant disputes the amounts of the Direct Expenses
charged by Landlord, Tenant may, by written notice to Landlord, request
an independent audit of such books and records. The independent audit
of the books and records shall be conducted by either a qualified
expense auditor (with not less than ten (10) years experience in
auditing of commercial office projects, or a certified public
accountant ("AUDITOR")) acceptable to both Landlord and Tenant (the
Auditor shall be paid on an hourly basis and no contingent fee payments
shall be permitted). The audit shall be limited to the determination of
the amount of Direct Expenses for the subject comparison year. If the
audit discloses that the amount of Direct Expenses billed to Tenant was
incorrect, the appropriate party shall pay to the other party the
deficiency or overpayment, as applicable. All costs and expenses of the
audit shall be paid by Tenant unless the audit shows that Landlord
overstated Direct Expenses for the subject comparison year by more than
five percent (5.00%), in which case Landlord shall pay all costs and
expenses of the audit. Tenant and the Auditor shall keep any
information gained from such audit confidential and shall not disclose
it to any other party. The exercise by Tenant of the audit rights
hereunder shall not relieve Tenant of its obligation to timely pay all
sums due hereunder, including, without limitation, the disputed portion
of Direct Expenses.
(e) Upon not less than sixty (60) days advance written notice,
Tenant shall have the right to assume from Landlord responsibility to
provide Janitorial Services for the Leased Premises; provided that (i)
Tenant is not in default of the provisions of this Lease, and (ii) the
level of such service shall comply with
-4-
<PAGE> 7
the specifications set forth on Exhibit D attached hereto. In the
event that Tenant elects to assume the obligation to provide
Janitorial Services as provided herein, Landlord shall have no
obligation or liability as a result of actions taken by such
janitorial staff, Tenant shall cause such janitorial staff to comply
with the rules and regulations of the Building, such services shall be
consistent with the operation of other first-class office building in
the vicinity of the Building, and such expense previously included in
Direct Expenses shall be excluded for the purpose of determining
Tenant's Share thereof.
(f) At any time during the term of this Lease, Tenant may request
Landlord, by delivery of written notice, to challenge the amount of
Real Estate Taxes currently assessed against the Building; provided,
however, Landlord shall not be obligated to commence such challenge
if, in Landlord's good faith estimation, such challenge would not
prevail. If Landlord indicates in writing that it will not commence
such challenge, Tenant, at Tenant's sole cost and expense, shall have
the right to challenge the amount of the Real Estate Taxes with the
appropriate governmental entities; provided that Tenant shall
indemnify, defend and hold Landlord and the Property harmless from any
and all claims, damages and expenses resulting from such action. To
the extent that Tenant is successful in such challenge, Landlord shall
reimburse Tenant for its costs incurred in prosecuting such challenge
to the extent of Landlord's savings in Real Estate Taxes.
8. USE
(a) Tenant shall use the Premises for general office purposes and
related uses, and shall not use or permit the Premises to be used for
any other purpose. Subject to the provisions of this Lease, Tenant
shall be entitled to twenty-four (24) hours a day, seven (7) days a
week, three hundred sixty-five (365) days a year access to the
Premises.
(b) Except for permissible use of the Premises as set forth in
this Lease, Tenant shall not do or permit anything to be done in or
about the Premises nor bring or keep anything therein which will in
any way increase the existing rate of or affect any fire or other
insurance upon the building or any of its contents, or cause
cancellation of any insurance policy covering said Building or any
part thereof or any of its contents. Excepting the use of the
Premises as permitted in Section 8(a), Tenant shall not do or permit
anything to be done in or about the Premises which will in any way
obstruct or interfere with the rights of other tenants or occupants of
the Building or injure or annoy them or use or allow the Premises to
be used for any immoral or unlawful purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises. Tenant
shall not commit or suffer to be committed any waste in or upon the
Premises.
(c) Neither Tenant, nor any assignee, sublessee or occupier of any
portion of the Premises, shall permit the introduction, placement,
use, generation, manufacture, storage, disposal or transportation in
or around the Premises of any hazardous, poisonous or toxic substance,
material or waste of any kind that may be hazardous to health and/or
the environment, including, without limitation, substances from time
to time identified as such by federal and/or state laws and
regulations, without the prior written consent of Landlord; provided,
however, Tenant shall be entitled to possess and maintain within the
Premises reasonable amounts of such hazardous materials which are
customarily used in connection with general office uses.
9. COMPLIANCE WITH LAW
Tenant shall, at its sole cost and expense, promptly comply with all
laws, statutes, ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in force, which
includes, but is not limited to access laws for individuals with
disabilities (commonly referred to as "ADA"), and with the requirements
of any board of fire insurance underwriters or other similar bodies
now or hereafter constituted, relating to, or affecting the condition,
use or occupancy of the Premises, excluding structural changes not
related to or affected by Tenant's improvements or acts. In the event
additions, alterations or other accommodations to the Premises, the
Building, or any other property owned by Landlord are required as a
result of Tenant's occupancy or actions, Tenant shall be solely
responsible for and shall indemnify, defend and hold harmless
Landlord, its successors and assigns, for, from and against any loss,
damage, cost, claim, expense, or liability directly or indirectly
arising out or attributable to such occupancy or action. Subject to
the foregoing, Landlord, following the Commencement Date, shall be
responsible for compliance with all laws, statutes, ordinances and
governmental rules, regulations or requirements affecting the
Building, including ADA, to the extent that such compliance is
required for general office use and not related to Tenant's specific
use of the Premises. The judgment of any court of competent
jurisdiction or the admission of Tenant in any action against Tenant,
whether Landlord be a party thereto or not, that Tenant has violated
any law, statue, ordinance or governmental rule, regulation or
requirement, shall be conclusive of the fact as between the Landlord
and Tenant.
10. ALTERATIONS AND ADDITIONS
(a) Tenant shall not make or suffer to be made any alterations,
additions, or improvements (collectively, "ALTERATIONS") to or of the
Premises, or any part thereof, without first obtaining the written
consent of Landlord, which shall not be unreasonably withheld;
provided, however, if the Alterations would adversely affect the
structure or safety of the Building or its electrical, plumbing, HVAC,
mechanical or safety systems, or if such Alterations would create an
obligation on Landlord's part to make modifications to the Building,
Landlord may withhold its consent in its sole and absolute discretion.
Notwithstanding the foregoing, without the prior consent of Landlord,
but with the prior notice to Landlord, Tenant shall be entitled to
make Alterations within the Premises, provided that (i) the cost of
construction such Alterations does not exceed Twenty-Five Thousand and
No/100ths Dollars ($25,000,00) per project In the aggregate, and (ii)
does not effect the structure or mechanical systems of the Building,
(iii) such Alterations are not visible from outside of the Premises,
and (iv) Tenant otherwise complies with the provisions of this Section
(collectively, "PERMITTED ALTERATIONS"). All Alterations shall comply
with all applicable laws, statutes and ordinances, which include, but
are not limited to ADA (Tenant acknowledges that certain Alterations
may require ADA compliance within the Premises, the Building, and the
common areas thereof, which costs may be disproportionate to the cost
of such Alteration). Any Alterations to or of said Premises,
including, but not limited to, wall covering, paneling, and built-in
-5-
<PAGE> 8
Landlord shall provide written notice to Tenant prior to the
construction of such Alteration whether Tenant will be required to
remove such Alteration and restore the Premises to its original
condition upon the expiration of the Term, normal wear and tear
excepted (Tenant shall have no obligation to remove any improvements
constructed and/or installed within the Premises pursuant to the
provisions of the Work Letter Agreement). If Landlord so states,
Tenant, at its own cost shall restore the Premises to its original
condition upon the expiration of the term; provided, however, Landlord
may subsequently require any Permitted Alterations be removed at the
expiration or the earlier termination of the term of this Lease. Upon
Landlord's approval of the requested Alterations, Tenant shall secure
all necessary permits after approved by Landlord, if applicable.
Before Landlord's consent to such Alterations, Tenant shall submit
detailed specifications, floor plans and necessary permits (if
applicable) to Landlord for review. In no event shall any Alterations
affect the structure of the Building or its facade. As a condition to
its consent, Landlord may request adequate assurance that all
contractors who will perform such work have in force workman's
compensation and such other employee and public liability insurance as
Landlord deems necessary, and where the Alterations are material,
Landlord may require Tenant or its contractors to post adequate
completion and performance bonds. In the event Landlord consents to
the making of any Alterations to the Premises by Tenant, the same
shall be made by Tenant at Tenant's sole cost and expense, completed
to the satisfaction of Landlord, and the contractor or person selected
by Tenant to make the same must first be approved in writing by
Landlord. If Tenant makes any Alterations to the Premises as provided
in this Section, the Alterations shall not be commenced until ten (10)
business days after Landlord has received notice from Tenant stating
the date the installation of the Alterations is to commence so that
Landlord can post and record an appropriate notice of
nonresponsibility. Tenant shall reimburse Landlord for any reasonable
expenses incurred by Landlord in connection with the Alterations made
by Tenant, including any reasonable fees charged by Landlord's
contractors or consultants to review plans and specifications prepared
by Tenant, and the customary and reasonable cost of updating the
existing as-built plans of the Building to reflect the alterations.
Tenant shall indemnify, defend and hold the Landlord, the Building and
the Premises free and harmless from any liability, loss, damage, cost,
attorneys' fees and other expenses incurred on account of such
construction, or claims by any person performing work or furnishing
materials or supplies for Tenant or any persons claiming under Tenant.
(b) Landlord acknowledges that Tenant desires to cause the
elevator service to the floors of the Premises which Tenant entirely
occupies (second, third and fourth floor) to be assessable by Tenant
key cards only. Landlord, in accordance with any request by Tenant
for such modification to the elevator service, shall review and
approve or disapprove, which approval shall not be unreasonably
withheld, such request in accordance with the provisions of Section
10(a) above.
(c) Landlord acknowledges that Tenant may desire to have certain
underground easements for cabling purposes and pipe chase space and
conduits for telecommunication cabling and fiber optics within certain
areas of the Building, as well as use certain portions of the roof as
an observation deck and the location for up to four (4)
telecommunication devices at designated areas of the roof. Subject to
Tenant's obligation to pay for all such cost of installation,
maintenance, repair and damages caused by such use and operation,
Landlord agrees to review and approve or disapprove, which approval
will not be unreasonably withheld, any such request in accordance with
the procedure set forth in Section 10(a) above. Landlord further
acknowledges that Tenant's business operations contemplate the use of
sophisticated telecommunications requirements, which may require the
installation of the items identified in this Section 10(c) and, based
upon such understanding, Landlord shall reasonably review any related
request for Alterations. Tenant shall not be charged additional cost
and/or rent for such usages.
11. REPAIRS
(a) Tenant shall, when and if needed or whenever requested by
Landlord to do so, at Tenant's sole cost and expense, maintain and
make all repairs to the Premises and every part thereof, including all
interior windows and doors, to keep, maintain and preserve the
Premises in good condition and repair. Tenant shall upon the
expiration or sooner termination of the term hereof surrender the
Premises to Landlord in the same condition as when received, less
reasonable wear and tear and subject to any damages which are not the
obligation of Tenant to repair pursuant to the provisions of this
Lease. Tenant acknowledges that Landlord shall have no obligation to
maintain, repair or replace any telecommunications or computer cabling
or wiring which is located in the Premises or which exclusively serves
the Premises (collectively, "CABLING"). Landlord shall have no
obligation to alter, remodel, improve, repair, decorate or paint the
Premises or any part thereof and the parties hereto affirm
that Landlord has made no representations to Tenant respecting the
condition of the Premises or the Building, except as specifically
herein set forth. Tenant shall not commit or allow any waste or
damage to be committed in any portion of the Premises or Building.
(b) Notwithstanding Subparagraph 11(a) above, Landlord shall
repair and maintain in good condition the structural portions of the
Building, including the roof, basic plumbing, heating, ventilating,
air conditioning, exterior windows, exterior walls of the Building,
exterior doors to the Building, all plumbing in bathrooms used in
common with other tenants of the Building, landscaping of the common
areas of the Building, the parking facilities of the Building,
electrical systems installed or furnished by Landlord (collectively,
"LANDLORD REPAIRS"), unless such maintenance and repairs are caused in
part or in whole by the act, neglect, fault of or omission of any duty
by Tenant, its agents, servants, employees or invitees, in which case
Tenant shall pay to Landlord, as additional rent, the reasonable cost
of such maintenance and repairs. Landlord shall not be liable for any
such failure to make any such repairs or to perform any maintenance,
unless such failure shall persist for an unreasonable time after
written notice of the need of such repairs or maintenance is given to
Landlord by Tenant. Following Landlord's receipt of written notice
from Tenant that a repair contemplated by this Section is required,
Landlord shall use its commercially reasonable efforts to complete
such repair in a timely basis as soon as possible. Except as provided
in paragraph 22 hereof, there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations
or improvements in or to any portion of the Building or the Premises
or in or to fixtures, appurtenances and equipment therein. Tenant
waives the right to make repairs at Landlord's expense under any law,
statute or ordinance now or hereinafter in effect.
-6-
<PAGE> 9
(c) Notwithstanding anything to the contrary contained in
subparagraphs (a) and (b) of this paragraph 11, Tenant shall maintain
and repair, at its sole cost and expense, all non-base Building
facilities, if any, including kitchen facilities and heating and air
conditioning systems, and all plumbing connected to said facilities or
systems, installed by Tenant or on behalf of Tenant. The provisions of
this paragraph shall not apply to the basic heating and air
conditioning system provided by Landlord to all tenants of the
Building.
(d) Notwithstanding any other provisions of this Lease to the
contrary, upon receipt of written notice (the "FIRST REPAIR NOTICE")
from Tenant that Landlord Repairs are required, Landlord shall cause
such repair to be made within a reasonable period of time given the
circumstances but in no event later than thirty (30) days after it
receives the First Repair Notice; provided, however, that if the
repair is of such a nature that it cannot be completed within thirty
(30) days (which fact shall be indicated in writing delivered to
Tenant by Landlord), then such longer time as reasonably necessary. If
Landlord fails to make the repair within the said time period, Tenant
may give an additional notice (the "SECOND REPAIR NOTICE") to
Landlord. If Landlord fails to commence thereafter such repair with
five (5) days after receipt of the Second Repair Notice and thereafter
diligently pursues said repair to completion, Tenant may perform such
repair. All repairs performed by Tenant pursuant to this Section shall
be made by a qualified licensed contractor(s) with sufficient
expertise in such matters and in accordance with all applicable laws,
statutes and ordinances. Landlord shall reimburse Tenant for Tenant's
actual costs incurred within ten (10) days after Landlord's receipt of
a written demand from Tenant, which demand shall include supporting
invoices. If Landlord disputes the need for such repair, Landlord
shall deliver written notice of such disagreement to Tenant within ten
(10) days after its receipt of the First Repair Notice.
Notwithstanding such dispute, Tenant may cause such repair to be
completed pending resolution of such dispute. The dispute shall be
resolved by a mutually acceptable third party engineer, which
determination shall be binding upon Landlord and Tenant; provided,
however, that if the parties cannot agree on an engineer, then the
dispute shall be resolved by arbitration pursuant to the commercial
arbitration rules then in effect for the American Arbitration
Association ("ARBITRATION"). The losing party shall pay the costs of
the engineer or arbitrator, whichever is applicable. If Landlord is
obligated to reimburse Tenant for the actual cost of repair and fails
to do so as provided in this Section, such amount shall accrue
interest at the rate of fifteen percent (15.00%) per annum until paid
in full. If such amounts owing from Landlord to Tenant are not paid
within thirty (30) days following the due date of such payment, Tenant
shall have abatement rights as set forth in Section 29(f) of this
Lease.
(e) Landlord acknowledges that certain of the Landlord Repairs may
have to be made on an expedited basis due to a material disruption of
Tenant's business operations caused by such condition, which condition
shall be referred to as an "EMERGENCY CONDITION." In this regard, in
the event an Emergency Condition relating to a Landlord Repair exists,
Tenant shall deliver to Landlord, by facsimile, a written notice
("EMERGENCY NOTICE") describing such Emergency Condition. The
Emergency Notice shall, in ten (10) point bold typed across the top,
stating "AN EMERGENCY SITUATION EXISTS AT THE PREMISES REQUIRING YOUR
IMMEDIATE ATTENTION." In the event that Landlord fails to commence
repair of the Emergency Condition within twenty-four (24) hours (if
such situation occurs during non-business hours, Tenant shall utilize
Landlord's paging system, the procedure for which shall be provided
to Tenant prior to the Commencement Date), Tenant using licensed
contractors which are qualified to perform such tasks in compliance
with applicable laws, shall have the right to make the Landlord
Repairs; provided, however, such repairs shall be limited to the
temporary remediation of such Emergency Condition and Landlord shall
thereafter be responsible for the full repair of such condition.
Landlord shall reimburse Tenant's actual expenses incurred in making
such temporary remediation repairs within ten (10) days following
Landlord's receipt of written demand and supporting invoices. If such
repayment is not made within such ten (10) day period, such amount
shall accrue interest at the rate of fifteen percent (15.00%) per
annum until paid in full. If such amounts owing from Landlord to
Tenant are not paid within thirty (30) days following the due date of
such payment, Tenant shall have abatement rights as set forth in
Section 29(f) of this Lease.
12. LIENS
Tenant will not cause or permit any lien to be imposed upon the
Premises of the Building and will pay all taxes and license fees
imposed by reason of any improvements made by Tenant to the Premises
or imposed upon any personal property located in the Premises. Tenant
shall have the right to contest any such lien; provided that Tenant
posts the requisite bonds, which are upon terms and conditions
reasonably acceptable to Landlord, to remove such lien as an
encumbrance against the Building. Tenant shall provide Landlord with
prior written notice of any such intention to contest. Tenant agrees
to give Landlord not less than five (5) days notice prior to
commencement of any alteration or repair permitted under the terms of
the Lease so that Landlord may post a notice of non-responsibility. In
the event that the amount of the estimated cost of any improvements,
additions or alterations in the Premises is in excess of One Hundred
Thousand and No/100ths Dollars ($100,000.00), Landlord may require, at
Tenant's sole cost and expense, a lien and completion bond in an
amount equal to one and one-half (1-1/2) times all estimated cost of
any improvements, additions or alterations in the Premises, to insure
Landlord against any liability for mechanics' and materialmen's liens
and to insure completion of the work; provided that the provisions of
this sentence shall not apply to any improvements constructed by
Tenant within the Premises prior to the Commencement Date.
13. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not, without the prior written consent of
Landlord, which shall not be unreasonably withheld, delayed or
conditioned, as provided in this Section 13: (a) assign, mortgage,
pledge, encumber or otherwise transfer this Lease, the term or estate
hereby granted, or any interest hereunder; (b) permit the Premises or
any part thereof to be utilized by anyone other than Tenant (whether
as concessionaire, franchisee, licensee, permittee or otherwise); or
(c) except as hereinafter provided, sublet or offer or advertise for
subletting the Premises or any part thereof. Any assignment, mortgage,
pledge, encumbrance, transfer or sublease without Landlord's consent
shall be voidable. Notwithstanding the
-7-
<PAGE> 10
foregoing and Subsection (b) below, Tenant may assign this Lease or
sublet the Premises or a portion thereof, without Landlord's consent,
but with prior written notice, to any corporation, partnership,
individual or other entity which controls, is controlled by or is
under common control with Tenant; or to any corporation, partnership,
individual or other entity, resulting from the merger or consolidation
with Tenant; or to any person or entity which acquires all of the
assets of Tenant's business going concern, provided that (i) the
assignee or subtenant assumes, in full, the obligations of Tenant
under this Lease, (ii) Tenant remains fully liable under this Lease,
(iii) the use of the Premises remains unchanged, and (iv) if Tenant
is no longer a viable and operating business entity, the assignee or
sublessee has a net worth which is consistent with the
leasing/financial requirements of Landlord taking into consideration
the size of the Premises, the rental structure, rights and privileges
granted to the Tenant pursuant to this Lease, and other concessions
granted to Tenant pursuant to the provisions of this Lease. Provided
that Tenant is a corporation, and (i) the stock of Tenant is traded on
a national exchange, the transfer of stock in Tenant shall not be
considered an assignment, sublease or transfer under the Lease, or
(ii) the stock of Tenant is not traded on a national exchange, the
collective transfer of forty nine percent (49.00%) or less of such
stock shall not be considered an assignment, sublease or transfer
under this Lease.
(b) If at any time or from time to time during the Term of this
Lease, Tenant desires to assign this Lease with respect to, or to
sublet, all or any part of the Premises, then at least thirty (30)
days prior to the date when Tenant desires the assignment or
subletting to be effective (the "TRANSFER DATE"), Tenant shall give
Landlord a notice (the "TRANSFER NOTICE") which shall set forth the
name, address and business of the proposed assignee or subtenant,
information (including financial statements and references) concerning
the character of the proposed assignee or subtenant, in the case of a
proposed sublease, a detailed description of the space proposed to be
sublet, which must be a single, self-contained unit (the "SPACE"), any
rights of the proposed assignee or subtenant to use Tenant's
improvements and the like, the Transfer Date, and the fixed rent
and/or other consideration and all other material terms and conditions
of the proposed assignment or subletting, all in such detail as
Landlord may reasonably require.
(c) Landlord shall be permitted to consider any reasonable factor
in determining whether or not to withhold its consent to a proposed
assignment or sublease and Landlord shall make such determination
within thirty (30) days following Landlord's receipt of the Transfer
Notice. The failure of Landlord to deliver written notice of such
determination within such time period shall be deemed Landlord's
approval thereof. Without limiting the other instances in which it may
be reasonable for Landlord to withhold its consent to an assignment or
sublease, it shall be reasonable for Landlord to withhold its consent
if any of the following conditions are not satisfied:
(1) The proposed transferee shall have a net worth which
is consistent with the leasing/financial requirements of Landlord
taking into consideration the size of the Premises, the rental
structure, rights and privileges granted to the Tenant pursuant to
this Lease, and other concessions granted to Tenant pursuant to the
provisions of this Lease;
(2) The proposed use by the transferee shall (i) comply
with Tenant's permitted use, (ii) be consistent with the general
character of businesses carried on by tenants of a first-class office
building, (iii) not increase the likelihood of damage or destruction,
(iv) not materially increase the density of, occupancy of the Premises
or increase the amount of pedestrian and other traffic through the
Building, (v) not be likely to cause an increase in insurance premiums
for insurance policies applicable to the Building, (vi) not require
new tenant improvements incompatible with then-existing Building
systems and components, unless paid for by Tenant, and (vii) unless
paid by Tenant, not require Landlord to make modifications to the
Building outside of the Premises (in order, for example, to comply
with laws such as the ADA);
(3) The proposed transferee shall not be a labor union,
foreign or domestic governmental entity or public utility company
which includes, as part of its business operation, customer traffic to
and from the Premises;
(4) If Landlord has vacant space at the Building suitable
for such proposed transferee, the proposed transferee shall not be an
existing tenant or occupant of the Building or a person or entity with
whom Landlord is then dealing, or with whom Landlord has had any
dealings within the previous six (6) months, with respect to the
leasing of space in the Building; and
(5) Any ground lessor or mortgagee whose consent to such
transfer is required fails to consent thereto. Tenant shall have the
burden of demonstrating that each of the foregoing conditions has
been satisfied.
(d) Provided Landlord has consented to such assignment or
subletting, Tenant shall be entitled to enter into such Assignment or
Sublease with the third party identified in the Transfer Notice
subject to the following conditions:
(1) At the time of the transfer, no event of material
default under this Lease shall have occurred and be continuing;
(2) The assignment or sublease shall be on the same terms
set forth in the Transfer Notice given to Landlord;
(3) No assignment or sublease shall be valid and no
assignee or sublessee shall take possession until an executed
counterpart of the assignment or sublease has been delivered to
Landlord;
(4) No assignee or sublessee shall have a right further
to assign or sublet without Landlord's consent thereto in each
instance, which consent in the case of a future assignment or
sublease should not be unreasonably withheld;
(5) Any assignee shall have assumed in writing the
obligations of Tenant under this Lease;
-8-
<PAGE> 11
(6) Any subtenant shall have agreed in writing to comply
with all applicable terms and conditions of this Lease with respect to
the Space;
(7) In the event Tenant sublets the entire Premises or
any part thereof, Tenant shall deliver to Landlord fifty percent
(50.00%) of any excess rent within thirty (30) days of Tenant's
receipt thereof pursuant to such subletting. As used herein, "EXCESS
RENT" shall mean any sums or economic consideration per square foot of
the Premises received by Tenant pursuant to such subletting in excess
of the amount of the rent per square foot of the Premises payable by
Tenant under this Lease applicable to the part or parts of the
Premises so sublet; provided, however, that no excess payment shall be
payable until Tenant shall have recovered therefrom all of the costs
incurred by Tenant for brokerage commissions, tenant improvement work
approved by Landlord, reasonable attorneys fees, and reasonable
marketing fees, in conjunction with such sublease; and
(8) In the event Tenant assigns this Lease, Tenant shall
deliver to Landlord fifty percent (50.00%) of any excess payment
within thirty (30) days of Tenant's receipt thereof pursuant to such
assignment. As used herein, "EXCESS PAYMENT" shall mean the amount of
payment received for such assignment of this Lease (to the extent
applicable only to this Lease) in excess of the rent payable by Tenant
under this Lease; provided, however, that no excess payment shall be
payable until Tenant shall have recovered therefrom all of the costs
incurred by Tenant for brokerage commissions, tenant improvement work
approved by Landlord, reasonable attorneys fees, and reasonable
marketing fees, in conjunction with such assignment.
(e) No subletting or assignment shall release Tenant of Tenant's
obligations under this Lease or alter the liability of Tenant to pay
the rent and to perform all other obligations to be performed by
Tenant hereunder. The acceptance of rent by Landlord from any other
person shall not be deemed to be a waiver by Landlord of any provision
hereof. Consent to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In the event of
default by an assignee or subtenant of Tenant or any successor of
Tenant in the performance of any of the terms hereof, Landlord may
proceed directly against Tenant without the necessity of exhausting
remedies against such assignee, subtenant or successor. Provided that
Landlord has provided Tenant with prior written notice, Landlord may
consent to subsequent assignments of the Lease or sublettings or
amendments or modifications to the Lease with assignees of Tenant.
(f) If Tenant assigns the Lease or sublets the Premises or
requests the consent of Landlord to any assignment or subletting or if
Tenant requests the consent of Landlord for any act that Tenant
proposes to do, then Tenant shall, upon demand, pay Landlord an
administrative fee of Five Hundred and No/100ths Dollars ($500.00).
14. HOLD HARMLESS
Subject to the provisions of Section 15 below and to the extent not
funded and paid to Landlord by any insurance maintained by Tenant,
Tenant shall indemnify, defend and hold harmless Landlord against and
from any and all claims, damages, liabilities, and expenses (including
reasonable attorneys' fees) to the extent arising from Tenant's use of
the Premises for the conduct of its business or from any activity, work
or other thing done, permitted or suffered by the Tenant in or about
the Building, and shall further indemnify, defend and hold harmless
Landlord against and from any and all claims to the extent arising from
any breach or default in the performance of any obligation on Tenant's
part to be performed under the terms of this Lease, or from any act or
negligence of the Tenant, or any officer, agent, employee, guest or
invitee of Tenant, and from all and against all reasonable cost,
attorney's fees, expenses and liabilities incurred in or about any such
claim or any action or proceeding brought thereon, and, if any case,
action or proceeding be brought against Landlord by reason of any such
claim, Tenant upon notice from Landlord shall defend the same at
Tenant's expense by counsel selected by Tenant and approved in writing
by Landlord such approval not to be unreasonably withheld or delayed.
Notwithstanding the preceding sentence, such indemnification by Tenant
and such assumption and waiver of claims shall not include damage or
injury to the extent caused by the negligence or willful misconduct of
Landlord, its agents, employees or contractors. Subject to Section 15
below and to the extent not funded and paid to Landlord by any
insurance maintained by Tenant, Landlord shall indemnify, defend and
hold harmless Tenant against and from any and all claims, damages,
liabilities, and expenses (including reasonable attorneys' fees) to the
extent arising from any breach or default in the performance of any
obligation on Landlord's part to be performed under the terms of this
Lease, or from any act or negligence of Landlord, or any officer,
agent, employee, guest or invitee of Landlord, and from and against all
reasonable costs, attorneys' fees, expenses and liabilities incurred in
or about any such claim or any action or proceeding brought thereon,
and, if any case, action or proceeding be brought against Tenant by
reason of any such claim, Landlord upon notice from Tenant, shall
defend same at Landlord's expense by counsel selected by Landlord and
approved in writing by Tenant, such approval not to be unreasonably
withheld or delayed. Notwithstanding any other provision of this Lease
to the contrary, Landlord shall not be responsible for any damages
relating to Tenant's loss of business resulting from an event requiring
indemnification pursuant to this Section.
Landlord shall not be liable to Tenant and Tenant hereby waives all
claims against Landlord or its affiliates for any injury or damage to
any person or property occurring or incurred in connection with or in
any way relating to the Premises, the Building or the Property from any
cause, excepting the gross negligence or willful misconduct of
Landlord. Without limiting the foregoing, neither Landlord nor any of
its Affiliates shall be liable for and there shall be no abatement of
rent for (i) any damage to Tenant's property stored with or entrusted
to Affiliates of Landlord, (ii) loss of or damage to any property by
theft or any other wrongful or illegal act, or (iii) any injury or
damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water or rain which may leak from any
part of the Building or the Project or from the pipes, appliances,
appurtenances or plumbing works therein or from the roof, street or
sub-surface or from any other place or resulting from dampness or any
other cause whatsoever or from the acts or omissions of other tenants,
occupants or other visitors to the Building or
-9-
<PAGE> 12
the Project or from any other cause whatsoever, or (iv) any diminution
or shutting off of light, air or view by any structure which may be
erected on lands adjacent to the Building, whether within or outside
of the Property. Tenant agrees that in no case shall Landlord ever be
responsible or liable on any theory for any injury to Tenant's
business, loss of profits, loss of income or any other form of
consequential and/or punitive damage. Tenant shall give prompt notice
to Landlord in the event of (a) the occurrence of a fire or accident
in the Premises or in the Building, or (b) the discovery of any defect
therein or in the fixtures or equipment thereof. Notwithstanding any
other provision of this Lease to the contrary, Tenant waives any
claims based on damage or injury resulting from Landlord's failure to
police or provide security for the Property.
15. SUBROGATION
Landlord and Tenant hereby mutually waive their respective rights of
recovery against each other for any loss or damage that is or would be
insured by fire, extended coverage and other property insurance
policies existing for the benefits of the respective parties or
required to be obtained by the releasing party pursuant to the
provisions of the Lease. Each party shall obtain any special
endorsements, if required by their insurer to evidence compliance with
the aforementioned waiver.
16. LIABILITY INSURANCE
(a) All insurance required to be carried by Tenant hereunder shall
be issued by responsible insurance companies which are rated by Best
Insurance Reports as A:VII or better and acceptable to Landlord and
Landlord's lender and licensed or authorized to do business in the
State of Colorado. Each policy shall name Landlord, and at Landlord's
request any mortgagee of Landlord, as an additional insured, as their
respective interests may appear. Each policy shall contain (i) a
separation of insureds condition, (ii) a provision that such policy
and the coverage evidenced thereby shall be primary and
non-contributing with respect to any policies carried by Landlord and
that any coverage carried by Landlord shall be excess insurance for
Landlord's interest only, and (iii) a waiver by the insurer of any
right of subrogation against Landlord, its agents, employees and
representatives, which arises or might arise by reason of any payment
under such policy or by reason of any act or omission of Landlord, its
agents, employees or representatives. A copy of each paid up policy
(authenticated by the insurer) or certificate of the insurer
evidencing the existence and amount of each insurance policy required
hereunder shall be delivered to Landlord before the date Tenant is
given possession of the Premises, and thereafter, within thirty (30)
days after any demand by Landlord therefor, Landlord may, at any time
and from time to time, inspect and/or copy any insurance policies
required to be maintained by Tenant hereunder. No such policy shall be
cancelable, materially changed or reduced in coverage except after
thirty (30) days' written notice to Landlord and Landlord's lender.
Tenant shall furnish Landlord with renewals or "binders" of any such
policy at least ten (10) days prior to the expiration thereof. Tenant
agrees that if Tenant does not take out and maintain such insurance,
Landlord may (but shall not be required to) procure said insurance on
Tenant's behalf and charge the Tenant the premiums, which shall be
payable upon demand. Tenant shall have the right to provide such
insurance coverage pursuant to blanket policies obtained by the
Tenant, provided such blanket policies expressly afford coverage to
the Premises, Landlord, Landlord's mortgagee and Tenant as required by
this Lease.
(b) Beginning on the date Tenant is given access to the Premises
for any purpose and continuing until expiration of the term of the
Lease, Tenant shall procure, pay for and maintain in effect policies
of property insurance covering trade fixtures, merchandise and other
personal property from time to time, in, on or about the Premises. The
proceeds of such insurance shall be used for the repair or replacement
of the property so insured. Upon termination of this Lease following a
casualty as set forth herein, the proceeds under (i) shall be paid to
Landlord, and the proceeds under (ii) above shall be paid to Tenant.
(c) Beginning on the date Tenant is given access to the Premises
for any purpose and continuing until expiration of the Term of the
Lease, Tenant shall procure, pay for and maintain in effect workers'
compensation and employer's liability insurance and commercial general
liability insurance which includes coverage for personal injury,
contractual liability and Tenant's independent contractors. The
commercial general liability should be procured and maintained with
not less than Two Million and No/100ths Dollars ($2,000,000.00) per
occurrence combined single limit, and a Five Million and No/100ths
Dollars ($5,000,000.00) aggregate limit, for bodily injury, personal
injury or property damage liability. If such insurance covers more
than one location, and general aggregate limit shall apply on a per
location basis.
(d) Whenever, in Landlord's reasonable judgment, but not more than
twice during the Term, good business practice or change in conditions
indicate a need for additional or different types of insurance,
Tenant shall upon request of Landlord obtain such insurance at its own
expense.
(e) Landlord shall obtain and keep in force during the term of
this Lease, (i) a policy of commercial general liability insurance in
amounts not less than required by Tenant in Section 16(c) above, and
(ii) fire, extended coverage and other property insurance policies of
the type typically maintained by property owners of Class A office
buildings located in the vicinity of the Building in Boulder County,
insuring the Building and related improvements constituting common
areas for the Building at full replacement cost. The premiums for such
insurance shall constitute Direct Expenses chargeable to tenants of
the Building in accordance with Section 7 above.
17. SERVICES AND UTILITIES
(a) Tenant shall be solely responsible for obtaining service and
thereafter paying the cost of all electrical service required for
Tenant's use of the Premises, which includes, but is not limited to,
electrical services required for the heating and air conditioning
system ("HVAC") for the Premises, and the use of the Premises by
Tenant. In this regard, the Premises shall be separately metered for
electrical consumption and Tenant shall pay all such amounts due prior
to delinquency. As provided in the Work Letter Agreement (which
includes the agreed upon electrical specifications for the Premises),
Landlord
-10-
<PAGE> 13
shall cause all electrical distribution to be installed within the
Premises. The failure of such electrical service to be provided to the
Premises, or any cessation thereof, shall not render Landlord liable
in any respect for damages to either person or property, nor be
construed an eviction of Tenant, nor cause an abatement of rent, or
relieve Tenant from the fulfillment of any covenant or agreement
thereof. Whenever heat generating machines or equipment are used in
the Premises or Tenant's use of the Premises beyond customary business
hours (7:00 a.m. to 7:00 p.m., Monday through Friday, and 7:00 a.m. to
12:00 p.m. on Saturdays (federal and state holidays excepted)
("BUSINESS HOURS")) adversely affect the temperature otherwise
maintained by the air conditioning system, Landlord reserves the right
to install supplementary air conditioning units for the Premises and
the cost thereof, including the cost of installation, and the cost of
operation and maintenance thereof, shall be paid by Tenant to Landlord
upon demand by Landlord. Tenant shall be entitled to access to the
Premises twenty-four (24) hours a day, seven (7) days a week. Landlord
shall maintain and keep lighted the common stairs, common entries and
toilet rooms in the Building. Subject to Tenant's obligation to pay
for the required electricity, Landlord shall cause the HVAC to
maintain the Premises at an approximate range of between 72 degrees
and 74 degrees Fahrenheit (plus or minus 2 degrees Fahrenheit) during
the Business Hours, which service shall be provided to the Premises by
HVAC system described in the Work Letter Agreement. As set forth in
the Work Letter Agreement, the Premises shall comply with the
requirements of ASHRAE Standard 62-1989 (20 CFM per occupant for
office type occupancy or as otherwise required by applicable law).
Landlord shall not be liable for, and Tenant shall not be entitled to,
any reduction of rental by reason of Landlord's failure to furnish any
of the foregoing when such failure is caused by accident, breakage,
repairs, strikes, lockouts or other labor disturbances or labor
disputes of any character, or by any other cause similar or
dissimilar, beyond the reasonable control of Landlord. Landlord shall
not be liable under any circumstances for a loss of or injury to
property; person or Tenant's business occurring through or in
connection with or incidental to failure to furnish such utilities.
(b) If Tenant shall require water in excess of that usually
furnished or supplied for the use of the Premises as general office
space, Tenant shall pay Landlord for such excessive use (in excess of
water consumption provided for general office use for tenants in the
vicinity of the Building) upon written demand by Landlord. If Tenant's
utility requirements are excessive, Landlord may cause a water meter
to be installed in the Premises so as to measure the amount of water
consumed for any such use. The cost of any such meters and of
installations, maintenance and repair thereof shall be paid for by the
Tenant and Tenant agrees to pay to Landlord promptly upon demand
therefore by Landlord for all such water currently consumed as shown
by said meters, at the rates charged for such services by the local
utility furnishing the same, plus any additional expense incurred in
keeping account of the water will be established by an estimate made
by a utility company, in which case such expense shall not be included
within Direct Expenses.
(c) Tenant acknowledges that the use of the HVAC system during
non-Business Hours shall result in excessive wear and tear on such
system, accordingly, if Tenant intends to utilize non-Business Hours
HVAC service on a regular reoccurring basis (more than two (2) hours a
day, for in excess of an average of seven (7) days a calendar month,
for three (3) consecutive calendar months), Landlord shall have the
right to obtain a service agreement for such system, which provides
for maintenance, repair and replacement, the cost of which shall be
paid directly by Tenant (such costs shall not be within the definition
of Direct Expenses).
18. PROPERTY TAXES
Tenant shall pay all taxes and assessments against any personal
property, trade fixtures, or other improvements on the Premises
belonging to Tenant. Tenant shall also pay any sales, use or rental
tax related to Tenant's property or business which may be assessed by
any governmental body during the term of this Lease. Tenant shall pay
such taxes and assessments billed separately to Tenant prior to
delinquency. Tenant shall have the right to contest any tax or
assessment levied as described in this Section; provided that Tenant
posts the requisite bonds, which are upon terms and conditions
reasonably acceptable to Landlord, to remove and/or avoid any form of
lien as an encumbrance against the Building. Tenant shall provide
Landlord with prior written notice of any such intention to contest.
In the event such taxes and assessments are billed to Landlord, Tenant
shall pay to Landlord its share of same within thirty (30) days after
delivery to Tenant by Landlord of a statement in writing, setting
forth the amount of such taxes or assessments applicable to Tenant's
property. Tenant shall have the right to dispute such taxes with the
taxing authorities provided that adequate assurances, as reasonably
determined by Landlord, to pay such amount are made by Tenant. Amounts
payable by Tenant pursuant to this Section 18 shall not be included
within Direct Expenses and, in no event, shall any amount payable
hereunder be included within the definition of Real Estate Taxes.
19. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the rules and
regulations that Landlord shall from time to time promulgate. Landlord
reserves the right from time to time to make all reasonable
modifications to said rules, which are normal and customary in the
market and nondiscriminatory. The additions and modifications to those
rules shall be binding upon Tenant upon delivery of a copy of them to
Tenant; provided that no such modification shall increase expenses
otherwise payable by Tenant, or increase duties or obligations owing
by Tenant pursuant to this Lease. Landlord shall not be responsible to
Tenant for the nonperformance of any said rules by any other tenants
or occupants.
20. HOLDING OVER
If Tenant remains in possession of the Premises or any part thereof
after expiration of the term hereof, without the expressed written
consent of Landlord, such occupancy shall be a tenancy from
month-to-month at a rental in the amount of one hundred fifty percent
(150%) multiplied by the last monthly rental, plus all other charges
payable hereunder, and upon all the terms hereof applicable to a
month-to-month tenancy. If either party desires to terminate such
month-to-month tenancy, it shall give the other party not less than
thirty (30) days advance written notice of the date of such
termination.
-11-
<PAGE> 14
21. ENTRY BY LANDLORD
Subject to Tenant's security procedures ("TENANT SECURITY
PROCEDURES"), a written summary of which Tenant shall provide to
Landlord within sixty (60) days following the Commencement Date,
Landlord reserves and shall at any and all reasonable times have the
right to enter the Premises, inspect the same, supply janitorial
service and any other service to be provided by Landlord to Tenant
hereunder, to submit said Premises to prospective purchasers or
tenants, to post notices of non-responsibility, and to improve or
repair the Premises and any portion of the Building of which the
Premises are a part that Landlord may deem necessary or desirable,
without abatement of rent and may for that purpose erect scaffolding
and other necessary structures where reasonably required by the
character of the work to be performed, always providing that the
entrance to the Premises shall not be blocked thereby, and further
providing that the business of the Tenant shall not be interfered with
unreasonably. Tenant hereby waives any claim for damages or for any
injury or inconvenience to or interference with Tenant's business, any
loss of occupancy or quiet enjoyment of the Premises, and any
other loss occasioned thereby, provided that Landlord's activities have
been reasonable. Any such entrance shall be done in a manner that
minimizes interference with Tenant's business operations at the
Premises. For each of the aforesaid purposes, subject to Tenant
Security Procedures, Landlord shall at all times have and retain a key
with which to unlock all of the doors in, upon and about the Premises,
excluding Tenant's vaults, safes and files, and Landlord shall have
the right to use any and all means which Landlord may deem proper to
open said doors in an emergency, in order to obtain entry to the
Premises without liability to Tenant, except for any failure to
exercise due care for Tenant's property. Any entry to the Premises
obtained by Landlord by any of said means, or otherwise shall not
under any circumstances be construed or deemed to be a forcible or
unlawful entry into, or a detainer of the premises, or an eviction of
Tenant from the Premises or any portion thereof.
22. RECONSTRUCTION
(a) In the event the Premises or the Building of which the
Premises are a part are damaged by fire or other perils covered by
extended coverage insurance carried by Landlord, Landlord agrees to
forthwith repair the same; and this Lease shall remain in full force
and effect, except that Tenant shall be entitled to a proportionate
reduction of the rent, which shall be negotiated in good faith, while
such repairs are being made, such proportionate reduction to be based
upon the extent to which the making of such repairs shall materially
interfere with the business carried on by the Tenant in the Premises
which is not mitigated by any business interruption insurance carried
by Tenant. If the damage is due to the fault or neglect of Tenant or
its employees, there shall be no abatement of rent.
(b) In the event the Premises or the Building or a part are damaged
by fire or other perils not covered by extended coverage insurance,
then Landlord shall forthwith repair the same, provided the extent of
the destruction be less than twenty percent (20%) of the then full
replacement cost of the Premises or the Building of which the Premises
are a part. In the event the destruction of the Premises or the
Building is to an extent greater than twenty percent (20%) of the full
replacement cost, the Landlord shall have the option: (1) to repair or
restore such damage, this Lease continuing in full force and effect,
but the rent to be proportionately reduced as hereinabove in this
Article provided; or (2) give notice to Tenant at any time within
ninety (90) days after such damage terminating this Lease as of the
date specified in such notice, which date shall be no less than sixty
(60) days and no more than ninety (90) days after the giving of such
notice. In the event of giving such notice, this Lease shall expire
and all interest of the Tenant in the Premises shall terminate on the
date so specified in such notice and the rent, reduced by a
proportionate amount based upon the extent, if any, to which such
damage materially interfered with the business carried on by the
Tenant in the Premises, shall be paid up to date of said such
termination.
(c) Notwithstanding anything to the contrary contained in this
Article, Landlord shall not have any obligation whatsoever to repair,
reconstruct or restore the Premises when the damage, in excess of
fifteen percent (15%) of the replacement cost of the Building,
resulting from any casualty covered under this Article occurs during
the last twelve (12) months of the term of this Lease or any extension
thereof. If Landlord elects not to repair, reconstruct or restore the
Premises during such twelve (12) month period, this Lease shall be
deemed terminated on the date of such damage.
(d) Landlord shall not be required to repair any damage caused by
fire or other cause, or to make any repairs or replacements of any
panels, decoration, office fixtures, railings, floor covering,
partitions, or any other property installed in the Premises by Tenant.
(e) The Tenant shall not be entitled to any compensation or
damages from Landlord for loss of the use of the whole or any part of
the Premises, Tenant's personal property or any inconvenience or
annoyance occasioned by such damage, repair, reconstruction or
restoration.
(f) Tenant may elect to terminate this Lease at any time during
the term hereof, if the Premises are destroyed or rendered
untenantable to an extent that they cannot be repaired within two
hundred twenty-five (225) days following the casualty, as reasonably
determined by Landlord in writing delivered to Tenant within
forty-five (45) days following the date of such damage, by delivery of
written notice of such election within fifteen (15) days following
Tenant's receipt of such notice. Thereafter, in the event that such
repairs are not substantially complete within such two hundred
twenty-five (225) day period, as may be extended by delays caused by
Tenant for a period of fifteen (15) days thereafter, Tenant shall have
the right to terminate this Lease by delivery of written notice of
such election. The termination of this Lease pursuant to this Section
22(f) shall be effective upon Landlord's receipt of such notice.
23. DEFAULT
The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease by Tenant:
-12-
<PAGE> 15
(a) The abandonment, without payment or rent, or vacating of the
Premises by Tenant (must be in excess of ten (10) business days).
(b) The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder within ten (10) days
following Tenant's receipt of written notice from Landlord that such
amount is due.
(c) The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or
performed by the Tenant, other than described in Article 23(a) above,
where such failure shall continue for a period of thirty (30) days
after written notice thereof by Landlord to Tenant; provided, however,
that if the nature of Tenant's default is such that more than thirty
(30) days are reasonably required for its cure, then Tenant shall not
be deemed to be in default if Tenant commences such cure within said
thirty (30)-day period and thereafter diligently prosecutes such cure
to completion.
(d) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; or the filing by or against
Tenant of a petition to have Tenant adjudged bankrupt, or a petition
or reorganization or arrangement under any law relating to bankruptcy
(unless, in the case of a petition filed against Tenant, the same is
dismissed within sixty (60) days); or the appointment of a trustee or
a receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where
possession is not restored to Tenant within thirty (30) days; or the
attachment, execution or other judicial seizure of substantially all
of Tenant's assets located at the Premises or of Tenant's interest in
this Lease where such seizure is not discharged in thirty (30) days.
24. REMEDIES IN DEFAULT
In the event of Tenant's default, Landlord may:
(a) Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant
shall immediately surrender possession of the Premises to Landlord. In
such event, Landlord shall be entitled to recover from Tenant:
(1) the worth at the time of the award of any unpaid
rent which had been earned at the time of such termination;
plus
(2) the worth at the time of the award of the amount
by which the unpaid rent which would have been earned after
termination until the time of award exceeds the amount of such
rental loss which Tenant proves could have been reasonably
avoided; plus
(3) the worth at the time of the award of the amount
by which the unpaid rent for the balance of the term after the
time of award exceeds the amount of such rental loss which
Tenant proves could be reasonably avoided; plus
(4) any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure
to perform its obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom
(including, without limitation, the cost of recovering
possession of the Premises, reasonable and necessary expenses
of reletting including necessary renovation and alteration of
the Premises to make the Premises and/or portions thereof
tenantable for general office purposes consistent with the
finish of the Premises as improved pursuant to the Work Letter
Agreement, reasonable attorneys' fees, and real estate
commissions actually paid and that portion of the leasing
commission paid by Landlord and applicable to the unexpired
portion of this Lease); plus
(5) such other amounts in addition to or in lieu of
the foregoing as may be permitted from time to time by
applicable Colorado law.
As used in Subsections (1) and (2) above, the
"WORTH AT THE TIME OF THE AWARD" shall be computed by allowing
interest at the lesser of ten percent (10%) per annum, or the
maximum rate permitted by law per annum. As used in Subsection
(3) above, the "WORTH AT THE TIME OF AWARD" shall be computed
by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one
percent (1%).
(b) Continue this Lease in full force and effect, and the Lease
will continue in effect, as long as Landlord does not terminate
Tenant's right to possession, and Landlord shall have the right to
collect rent when due. During the period Tenant is in default,
Landlord may enter the Premises and relet them, or any part of them,
to third parties for Tenant's account. Tenant shall be liable
immediately to Landlord for all costs Landlord reasonably incurs
in reletting the Premises, including, without limitation, brokers'
commissions, expenses of remodeling the Premises required by the
reletting, and like costs. Reletting can be for a period shorter or
longer than the remaining term of this Lease (provided, however, in no
event shall Tenant be responsible for any cost relating to such
reletting after the expiration of the term of this Lease). Tenant
shall pay to landlord the rent due under this Lease on the dates the
rent is due, less the rent Landlord receives from any reletting. In no
event shall Tenant be entitled to any excess rent received by
Landlord. No act by Landlord allowed by this paragraph shall terminate
this Lease unless Landlord notifies Tenant in writing that Landlord
elects to terminate this Lease. After Tenant's default and for as long
as Landlord does not terminate Tenant's right to possession of the
Premises, if Tenant obtains Landlord's consent, Tenant shall have the
right to assign or sublet its interest in this Lease, but Tenant shall
not be released from liability.
(c) Cause a receiver to be appointed to collect rent. Neither the
filing of a petition for the appointment of a receiver nor the
appointment itself shall constitute an election by Landlord to
terminate the Lease.
-13-
<PAGE> 16
(d) Cure the default at Tenant's cost. If Landlord at any time, by
reason of Tenant's default, reasonably pays any sum or does any act
that requires the payment of any sum, the sum paid by Landlord shall
be due immediately from Tenant to Landlord at the time the sum is
paid, and if paid at a later date shall bear interest at the lesser of
ten percent (10%) per annum, or the maximum rate permitted by law. The
sum, together with interest on it, shall be additional rent.
(e) The foregoing remedies are not exclusive; they are cumulative,
in addition to any remedies now or later allowed by law, to any
equitable remedies Landlord may have, and to any remedies Landlord may
have under bankruptcy laws or laws affecting creditors' rights
generally. The waiver by Landlord of any breach of any term, covenant
or condition of this Lease shall not be deemed a waiver of such term,
covenant or condition or of any subsequent breach of the same or any
other term, covenant or condition. Acceptance of rent by Landlord
subsequent to any breach hereof shall not be deemed a waiver of any
proceeding breach other than a failure to pay the particular rent so
accepted, regardless of Landlord's knowledge of any breach at the time
of such acceptance of rent. Landlord shall not be deemed to have
waived any term, covenant or condition unless Landlord gives Tenant
written notice of such waiver.
(f) Notwithstanding anything to the contrary contained elsewhere
in this Lease, Landlord shall use reasonable efforts to relet the
Premises to mitigate its damages under this Section 24; provided,
however, that so long as Landlord uses such reasonable efforts,
Landlord shall in no way be responsible or liable for any failure
to relet the Premises, or any part thereof, or any failure to collect
any rent due upon such reletting; and Landlord shall not be required
to spend its own funds, to give the Premises priority over or equal
priority with any other facilities owned by Landlord or its affiliates
or other space available for rent in the Building or to compromise in
any way the terms, uses or creditworthiness of a Tenant upon or to
which it would customarily lease space such as the Premises; and
Landlord shall be entitled, in its sole discretion, to seek a single
tenant for the entire Premises, even though it may take a
substantially longer period to obtain such a tenant and its efforts
may be unsuccessful; and this requirement shall not affect in any way
Tenant's obligations to obtain Landlord's consent to a sublease or
assignment.
25. EMINENT DOMAIN
If more than twenty-five percent (25%) of the Premises shall be taken
or appropriated by any public or quasi-public authority under the
power of eminent domain, either party hereto shall have the right, at
its option to terminate this Lease, and Landlord shall be entitled to
any and all income, rent award, or any interest therein whatsoever
which may be paid or made in connection with such public or
quasi-public use or purpose, and Tenant shall have no claim against
Landlord for the value of any unexpired term of this Lease. If either
less than or more than twenty-five percent (25%) of the Premises is
taken, and neither party elects to terminate as herein provided, the
rental thereafter to be paid shall be equitably reduced. If
twenty-five percent (25%) or more of the Building other than the
Premises may be so taken or appropriated, Landlord shall have the
right at its option to terminate this Lease and shall be entitled to
the entire award as above provided. Notwithstanding the foregoing,
subject to applicable law, Tenant may seek payment from the condemning
authority for reimbursement for unamortized tenant improvements
installed by Tenant, at its cost, goodwill, and relocation expenses,
provided such recovery does not adversely affect Landlord's ability to
recover amounts from such condemning authority. In the event that,
Tenant is not permitted to seek such award separately pursuant to
applicable law, Tenant shall be permitted to jointly pursue such award
with Landlord, provided such recovery does not adversely affect
Landlord's ability to recover amounts from such condemning authority.
26. ESTOPPEL CERTIFICATE
Within ten (10) days following any written request which Landlord may
make from time to time, Tenant shall execute and deliver to Landlord a
statement certifying: (i) the date of commencement of this Lease; (ii)
the fact that this Lease is unmodified and in full force and effect
(or if there have been modifications hereto, that this Lease is in
full force and effect, as modified, and stating the date and nature
of such modifications); (iii) the date to which the rental and other
sums payable under this Lease have been paid; (iv) the fact that there
are no current defaults under this Lease by either Landlord or Tenant,
except as specified in Tenant's statement; and (v) such other matters
requested by Landlord. Landlord and Tenant intend that any statement
delivered pursuant to this paragraph 26 may be relied upon by any
mortgagee, beneficiary, purchaser or prospective purchaser of the
Building or any interest therein. Tenant shall also have the right to
request an estoppel certificate from Landlord pursuant to the
provisions of this Section 26.
27. PARKING
Tenant shall have the right to park in the Building's parking
facilities in common with other tenants of the Building upon terms and
conditions as may from time to time be established by Landlord. Such
parking right shall be upon a ratio of four and 50/100ths (4.50) spaces
for each one thousand (1,000) rentable square feet within the
Premises. Tenant agrees not to overburden the parking facilities and
agrees to cooperate with Landlord and other Tenants in the use of the
parking facilities. Landlord reserves the right in its reasonable
discretion to determine whether the parking facilities are becoming
crowded and to allocate and assign parking spaces among Tenant and the
other tenants, and to alter, relocate, or otherwise change the parking
facilities and to take measures with respect to the parking area from
time to time in order to comply with the policies of any
transportation management association or any governmental ordinance,
law or regulation, subject to maintaining the above-specified parking
ratio. Landlord shall have the right, in addition to pursuing any
other legal remedy available, to tow any vehicle belonging to Tenant
or Tenant's employees which is not in compliance with the regulations
for the parking facility then in effect if a violation continues
after the first notice of such violation, at the expense of the towed
party; nothing in this Lease, however, shall require Landlord to tow
parked cars or take other actions to free occupied spaces for Tenant's
use. Landlord shall not be liable for any claims, losses, damages,
expenses or demands with respect to injury or damage to the vehicles
of Tenant or Tenant's customers or employees that park in the parking
areas of the Project, except for such loss or damage as may be caused
by Landlord's gross negligence or willful misconduct.
-14-
<PAGE> 17
28. AUTHORITY OF PARTIES
If a party to this Lease is a corporation or partnership, each
individual executing this Lease on behalf of said corporation or
partnership represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said corporation or
partnership, in accordance with a duly adopted resolution or other
document, and that this Lease is binding upon said corporation or
partnership, as appropriate in accordance with its terms. The
individuals signing on behalf of a corporate entity are executing this
Lease in their respective corporate capacities and there shall be no
individual liability imposed upon such signatories in such case.
29. DEFAULT BY LANDLORD
(a) Landlord shall not be deemed to be in default in the
performance of any obligation required to be performed by it hereunder
unless and until it has failed to perform such obligations within
twenty (20) days after written notice by Tenant to Landlord specifying
wherein Landlord has failed to perform such obligation; provided,
however, that if the nature of Landlord's obligation is such that more
than twenty (20) days are required for its performance, then Landlord
shall not be deemed to be in default if it shall commence such
performance within such twenty (20)-day period and thereafter
diligently prosecute the same to completion. In no event shall
Landlord be liable to Tenant for loss of profits, business
interruption, or consequential damages if Landlord performs its
obligations within the time periods specified in this paragraph.
(b) Tenant agrees to give any mortgagee and/or trust deed holders,
by registered mail, a copy of any Notice of Default served upon the
Landlord, provided that prior to such notice Tenant has been notified
in writing of the address of such mortgagee and/or trust deed holder.
Tenant further agrees that if Landlord shall have failed to cure such
default within the time provided for in this Lease, then the
mortgagees and/or trust deed holders shall have an additional thirty
(30) 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 thirty (30) days mortgagee and/or trust deed
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 remedies are being so
diligently pursued.
(c) Notwithstanding any other provisions of this Lease to the
contrary, but subject to the provisions of Section 29(a) and 29(b)
above, upon receipt of written notice (the "FIRST DEFAULT NOTICE") from
Tenant that Landlord has failed to perform any of its obligations as
expressly set forth in this Lease (collectively, "LANDLORD
OBLIGATIONS"), Landlord shall perform such obligation within a
reasonable period of time given the circumstances but in no event
later than thirty (30) days after it receives the First Default
Notice; provided, however, that if the completion of such obligation
is of such a nature that it cannot be completed within thirty (30)
days, then such longer time as reasonably necessary. If Landlord fails
to complete such obligation within the said time period, Tenant may
give an additional notice (the "SECOND DEFAULT NOTICE") to Landlord.
If Landlord fails to commence to complete such obligation within five
(5) days after receipt of the Second Default Notice and thereafter
diligently pursues the completion of such obligation, Tenant may
complete such obligation. All obligations of Landlord performed by
Tenant pursuant to this Section shall be made by a qualified licensed
contractor(s) and/or qualified persons with sufficient expertise in
such matters and in accordance with all applicable laws, statutes and
ordinances. Landlord shall reimburse Tenant for Tenant's actual costs
incurred within ten (10) days after Landlord's receipt of a written
demand from Tenant, which demand shall include supporting invoices. If
Landlord disputes the need for the completion of such obligation,
Landlord shall deliver written notice of such disagreement to Tenant
within ten (10) days after its receipt of the First Default Notice.
The dispute shall be resolved by a mutually acceptable third party,
which determination shall be binding upon Landlord and Tenant;
provided, however, that if the parties cannot agree on such third
party, then the dispute shall be resolved by arbitration pursuant to
the commercial arbitration rules then in effect for the American
Arbitration Association ("ARBITRATION"). The losing party shall pay the
costs of the third party or arbitrator, whichever is applicable. If
Landlord is obligated to reimburse Tenant for the actual cost and
fails to do so as provided in this subsection, such amount shall
accrue interest at the rate of fifteen percent (15.00%) per annum
until paid in full. If such amounts owing from Landlord to Tenant are
not paid within thirty (30) days following the due date of such
payment, Tenant shall have abatement rights as set forth in Section
29(f) of this Lease.
(d) Landlord acknowledges that certain of the Landlord Obligations
may have to be made on an expedited basis due to a material disruption
of Tenant's business operations caused by such condition, which
condition shall be referred to as an "EMERGENCY CONDITION." In this
regard, in the event an Emergency Condition relating to a Landlord
Obligation exists, Tenant shall deliver to Landlord, by facsimile, a
written notice ("EMERGENCY NOTICE") describing such Emergency
Condition. In the event that Landlord fails to commence repair of the
Emergency Condition within forty-eight (48) hours (if such situation
occurs during non-business hours, Tenant shall utilize Landlord's
paging system, the procedure for which shall be provided to Tenant
prior to the Commencement Date), Tenant, using license contractors
and/or persons which are qualified to perform such tasks in compliance
with applicable laws, shall have the right to perform the Landlord
Obligation; provided, however, such repairs shall be limited to the
temporary remediation of such Emergency Condition and Landlord shall
thereafter be responsible for the full repair of such condition.
Landlord shall reimburse Tenant's actual expenses incurred in making
such temporary remediation repairs within fifteen (15) days following
Landlord's receipt of written demand and supporting invoices. If such
repayment is not made within such fifteen (15) day period, such amount
shall accrue interest at the rate of fifteen percent (15.00%) per
annum until paid in full. If such amounts owing from Landlord to
Tenant are not paid within thirty (30) days following the due date of
such payment, Tenant shall have abatement rights as set forth in
Section 29(f) of this Lease.
-15-
<PAGE> 18
(e) If Tenant has provided Landlord with the notice described in
Section 11(d) and/or (e) of this Lease, Tenant may not thereafter
utilize the provisions of Sections 29(c) and 29(d) for the same event.
(f) In the event that Landlord has not reimbursed amounts owing to
Tenant pursuant to Sections 11(d), 11(e), 29(c) and/or 29(d) of this
Lease within thirty (30) days following the due date for such payment,
Tenant shall be entitled to offset such amount due and owing from the
next payment of Base Rent due and payable under this Lease. Such
offset right shall continue until all amounts owing are paid in full.
30. OPTION TO EXPAND
Tenant desires to have certain expansion rights with regard to the
remaining vacant space within the Building, hereinafter referred to as
the "EXPANSION SPACE." Landlord is willing to grant such expansion
rights in accordance with the terms and conditions of this Section.
(a) At any time between the Lease Date and August 1, 1998 ("OPTION
WINDOW"), Tenant shall have the right to expand ("OPTION TO EXPAND")
the Premises to include the Expansion Area by providing Landlord with
written notice ("EXPANSION NOTICE") of such election; provided,
however, that if Tenant is in material default beyond any applicable
cure period under the Lease on the date of giving such notice, such
notice shall be null and void at the election of Landlord.
(b) If Tenant elects to exercise its Option to Expand, the
Expansion Space shall be deemed to be leased under all the terms and
conditions of this Lease and shall constitute a portion of the
"Premises" for all purposes, and the term of Tenant's lease of the
Expansion Space shall be coterminous with the term of this Lease with
respect to the original Premises. The date that is the sooner to occur
of the date that Landlord Substantially Completes the leasehold
improvements pursuant to the Expansion Space Work Letter Agreement (as
hereinafter defined), the date that the Expansion Space would have
been Substantially Complete absent Tenant delays, or the date that
Tenant commences occupancy of the Expansion Space, is hereinafter
referred to as the "OCCUPANCY DATE." To the extent reasonably
requested by Landlord, Tenant shall execute an amendment to this Lease
evidencing the lease of the Expansion Space.
(c) The Base Rent for the Expansion Space shall be the Base Rent
for the original Premises, on a per square foot of rentable area
basis, and shall be subject to increase at the same times and in the
same manner as Base Rent is adjusted pursuant to Section 5 of the
Lease. Tenant's obligation to pay Base Rent and other rent respecting
the Expansion Space shall commence on the Occupancy Date.
(d) As a condition to Tenant's right to expand into the Expansion
Space, Tenant shall continue, both before and after the exercise of
the option to expand, to occupy the Premises originally demised under
this Lease, and furthermore, as of the time of the exercise of the
option, and at the time Tenant takes possession of such Expansion
Space, Tenant shall not be in default under this Lease, unless waived
by Landlord.
(e) Within ten (10) days following Landlord's receipt of the
Expansion Notice, and as a condition precedent to the lease of the
Expansion Space to Tenant, Tenant and Landlord shall enter into a work
letter agreement ("EXPANSION SPACE WORK LETTER AGREEMENT") which shall
be in a form similar to the Work Letter Agreement. Among other
provisions, the Expansion Space Work Letter Agreement shall provide
that the Occupancy Date shall occur on the latter of (i) the date that
improvements described by the Expansion Space Work Letter Agreement are
Substantially Complete (as defined in Section 3 of this Lease), or (ii)
the Commencement Date for the Premises. Tenant delays affecting the
construction of the improvements pursuant to the Expansion Space Work
Letter Agreement shall not extend Tenant's obligation to pay Base Rent
for the Expansion Space on the Occupancy Date. The Expansion Space
Work Letter Agreement shall also provide that Landlord grants Tenant an
amount equal to the Allowance (as defined in the Work Letter
Agreement), expressed on a per rentable square foot basis, multiplied
by the rentable square footage of the Expansion Space, to be utilized
for the cost of such construction.
(f) As of the Occupancy Date, the Tenant's Share used for purposes
of calculating Direct Expenses shall be increased in order to reflect
the addition of the Expansion Space to the Premises.
31. FIRST RIGHT OF REFUSAL
(a) Tenant desires to have certain first right of refusal ("FIRST
RIGHT OF REFUSAL") rights with regard to the remaining vacant portion
of the Building, or any portion thereof, which space is hereinafter
referred to as the "FRR SPACE." Landlord is willing to grant such in
accordance with the terms and conditions of this Section.
(b) Landlord shall notify Tenant in writing ("INTERESTED PARTY
NOTICE") of any third party ("INTERESTED PARTY") who expresses a bona
fide interest in leasing the FRR Space, or any portion thereof, as
evidenced by a proposed letter of intent, or similar document,
submitted to Landlord by the Interested Party, which Landlord is
willing to accept. The Interested Party Notice shall include a copy of
said letter of intent or similar such document. Landlord, using its
good faith efforts, shall provide Tenant with at least fourteen (14)
days prior notice ("PRE-ACCEPTANCE NOTICE") of its intent to accept an
offer from an Interested Party. For a period of seven (7) days
following Tenant's receipt of the Interested Party Notice (if Landlord
has not delivered a Pre-Acceptance Notice with regard to such
Interested Party, such period shall be extended to fourteen (14) days
following the Tenant's receipt of the Interested Party Notice), Tenant
may exercise its First Right of Refusal to lease the FRR Space by
providing Landlord with written notice of such election ("ELECTION
NOTICE"); provided, however, that if Tenant is in material default
beyond any applicable cure period under this Lease on the date of
giving such notice, such notice shall be null and void at the election
of Landlord. The failure of Tenant to deliver the Election Notice to
Landlord
-16-
<PAGE> 19
within such time period shall be deemed Tenant's waiver of the Right of
Refusal and Landlord shall be free to lease the space identified in the
Interested Party Notice to the Interested Party.
(c) Subject to subsection (i) below, if Tenant elects to exercise
its Right of Refusal, the FRR Space shall be deemed to be leased under
all the terms and conditions of this Lease and shall constitute a
portion of the "Premises" for all purposes, and the term of Tenant's
lease of the FRR Space shall be coterminous with the term of this Lease
with respect to the original Premises. The date that is the sooner to
occur of the day that Landlord Substantially Completes the leasehold
improvements pursuant to the FRR Space Work Letter, the date that the
FRR Space would have been completed absent Tenant delays, or the day
that Tenant commences occupancy of the FRR Space, is hereinafter
referred to as the "OCCUPANCY DATE". To the extent reasonably required
by Landlord, Tenant shall execute an amendment to this Lease evidencing
the lease of the FRR Space.
(d) The Base Rent for the FRR Space shall be the Base Rent for the
original Premises, on a per square foot of rentable area basis, and
shall be subject to increase at the same times and in the same manner
as Base Rent is adjusted pursuant to Section 5 above. Tenant's
obligation to pay Base Rent and other rent respecting the FRR Space
shall commence on the Occupancy Date.
(e) As a condition to Tenant's right to expand into the FRR Space,
Tenant shall continue, both before and after this exercise of the First
Right of Refusal, to occupy the Premises originally demised under this
Lease, and furthermore, as of the time of the exercise of the option,
and at the time Tenant takes possession of such FRR Space, Tenant shall
not be in default under this Lease unless waived by Landlord.
(f) Within ten (10) days following Landlord's receipt of the
Election Notice, and as a condition precedent to the lease of the FRR
Space to Tenant, Tenant and Landlord shall enter into a work letter
agreement ("FRR SPACE WORK LETTER AGREEMENT") which shall be in a form
similar to the Work Letter Agreement. Among other provisions, the FRR
Space Work Letter Agreement shall provide that the Occupancy Date which
shall occur on the date that the improvements described by the FRR
Space Work Letter Agreement are Substantially Complete (as defined in
Section 3 of this Lease). Tenant delays affecting the construction of
the improvements pursuant to the FRR Space Work letter shall not extend
Tenant's obligation to pay Base Rent for the FRR Space on the Occupancy
Date. The FRR Space Work Letter shall also provide that Landlord grants
Tenant an amount equal to the unamortized (using the original term as
an amortization period, on a straight line basis) portion of the
Allowance (as defined in the Work Letter), expressed on a per rentable
square foot basis, multiplied by the rentable square footage of the FRR
Space, to be utilized for the cost of such construction.
(g) As of the Occupancy Date, the Tenant's Share used for purposes
of calculating Direct Expenses shall be increased in order to reflect
the addition of the FRR Space to the Premises.
(h) In the event that Tenant elects or is deemed to have elected to
not exercise its Right of Refusal and Landlord and the Interested Party
have not entered into a lease agreement within one hundred twenty (120)
days following the date of such election by Tenant, the FRR Space shall
remain subject to Tenant's First Right of Refusal. Tenant's rights as
provided in this Section 31 shall not terminate if Tenant fails to
exercise its right of refusal, but shall continue throughout the Terms,
including any renewal terms, if and when the FRR Space thereafter
becomes reasonable.
(i) Notwithstanding the provisions of subsections (c), (d) and (f)
above, in the event that the Interested Party Notice is delivered at
any time after the first three hundred sixty-five (365) days following
the Commencement Date, and Tenant delivers an Election Notice to
Landlord, Tenant and Landlord shall enter into a new lease agreement,
prepared by Landlord, upon the exact terms and conditions set forth in
the Interested Party Notice within twenty-one (21) days following
Landlord's receipt of the Interested Party Notice. In the event that
Landlord and Tenant are unable to reach agreement upon such terms
within such time period, the Election Notice shall be deemed null and
void, and Landlord shall be free to negotiate with the Interested Party
subject to the provisions of subsection (h) above. In the event that
this subsection (i) is applicable, subsections (c), (d) and (f) above
shall not be applicable to Tenant's exercise of its First Right of
Refusal.
32. FIRST RIGHT OF OFFER
Following the initial leasing of the entire Building, at any time
thereafter during (the term of the Lease, upon Landlord's determination
to lease any Vacant Space within the Building, Landlord shall first
deliver to Tenant a written notice of such availability ("VACANT SPACE
NOTICE"). For a period of fifteen (15) days following Tenant's receipt
of the Vacant Space Notice, Tenant shall have the right to negotiate
with Landlord regarding the lease of the Vacant Space; provided,
however, Landlord makes no representation or warranty regarding the
then market rate which Landlord would be willing to accept or the
likelihood of reaching agreement upon any lease documentation. In the
event that Landlord and Tenant do not reach agreement upon such terms
and conditions regarding such vacant space within such fifteen (15) day
period for any reason, Landlord shall be free to negotiate with any
third party the lease of such space, and Tenant shall have no further
obligation with regard thereto, except as provided in Section 31 of
this Lease. For the purpose of this Section, "VACANT SPACE" shall mean
(1) no bona fide written lease agreement exists relative to such space,
or (2) such space is due to become vacant because a tenant's lease has
or will expire with no renewal provision.
33. OPTION TO EXTEND
At the expiration of the original term hereof, Tenant may extend this
Lease for two (2) successive five (5) year terms ("EXTENDED TERMS") by
giving Landlord written notice ("EXTENSION NOTICE") of its intention to
do so at least twelve (12) months prior to the expiration of the
original term or first Extended Term, as applicable; provided, however,
that Tenant is not in material default beyond any applicable cure
period under the Lease on the date of giving such notice or on the date
of commencement of the extended term. Such Extended Terms shall be
upon all of the terms and conditions of this Lease, except that the
following
-17-
<PAGE> 20
rights of Tenant during the original term of this Lease shall not apply
during such extension period: (a) any right to rent-free possession,
(b) any right to further extension of the term of the Lease beyond the
Extended Terms set forth hereinabove, (c) any right to continue to pay
the same Base Rent and (d) any limitation on increases in expenses
payable by Tenant. Landlord and Tenant hereby acknowledge and agree
that the Base Rent during each Extended Term shall be the "PREVAILING
RATE" for the Premises, as determined in accordance with this Section.
Within fifteen (15) days following Landlord's receipt of the Extension
Notice, Landlord shall deliver a written notice ("EXTENSION NOTICE") to
Tenant setting forth Landlord's estimation of the Prevailing Rate for
the Premises. The parties shall have until the date that is ten (10)
months prior to the date that the original term, or first Extended
Term, as applicable, will expire in order to agree on Base Rent during
such Extended Term. If the parties agree on the Base Rent for the
Extended Term during that period, they shall immediately execute an
amendment to this Lease stating the Base Rent. If the parties are
unable to agree on Base Rent for such Extended Term during that period,
for a period of ten (10) days thereafter, by providing Landlord with
written notice, Tenant may elect to (i) withdraw its Extension Notice,
in which case Tenant shall no longer have any extension rights pursuant
to this Section 33, or (ii) cause the Prevailing Rate to be established
by appraisal. The failure of Tenant to make such election within five
(5) days following Tenant's receipt of written notice from Landlord
indicating that Tenant has not made such election shall be deemed
Tenant's election to proceed under subsection (i) above. In the event
the appraisal procedure is utilized, Landlord and Tenant shall each
appoint one appraiser at least eight (8) months prior to the expiration
of the original term; provided, however, that if either party fails to
designate an appraiser within the time period specified, then the
appraiser who is designated shall conclusively determine the Prevailing
Rate. If two (2) appraisers are designated, then they shall submit
within thirty (30) days after the second thereof has been designated
their appraisals of the Prevailing Rate. Landlord and Tenant intend
that the "Prevailing Rate" shall be deemed to be the rent per square
foot of rentable area of office space that is then being charged for as
renewal rates office space located in Class "A" office buildings in the
vicinity of the Building (located within the Broomfield submarket) that
are comparable in quality and offer similar amenities to the Building
and involving leases with similar terms and conditions, and involving
the use of the premises for general office purposes. The office spaces
used for comparison shall be comparable in size, quality and design to
the Premises, and such office spaces used for comparison shall be
comparable to the Premises with respect to their location within such
buildings. Should the two appraisers be unable to agree within said
thirty (30) days, the two appraisers shall each submit an independent
written appraisal and together they shall designate one (1) additional
person as appraiser within five (5) days following the expiration of
said thirty (30)-day period; provided, however, that if the difference
between the two appraisals is five percent (5%) or less of the lowest
appraisal, then an additional appraiser shall not be designated and the
Prevailing Rate shall equal the average of the two (2) appraisals that
are submitted. The third appraiser shall submit an independent written
appraisal within thirty (30) days following his or her appointment. If
the two appraisers cannot agree upon a third appraiser, then either
party hereunder may request that any District Court Judge of the County
in which the Premises is located appoint such third appraiser. The
Prevailing Rate shall be equal to the average of the two (2) written
appraisals which are closest, and the third (3rd) appraisal shall be
disregarded. Each party shall bear the cost of the appraiser appointed
by it. If three (3) appraisers are appointed, each party shall bear the
cost of the appraiser appointed by it and the parties shall share
equally in the cost of the third appraiser. No person shall be
appointed or designated an appraiser unless he or she is (i) an
independent appraiser who is a currently certified member of the
American Institute of Real Estate Appraisers (with MAI designation) and
unless he or she has at least five (5) years' experience as an
appraiser in the County which the Premise is located, or (ii) a real
estate broker with a minimum of at least ten (10) years' experience in
leasing of commercial office space in the vicinity of the Project. The
third appraiser shall not have ever been employed (full-time or
part-time or on a consulting basis) by Landlord or Tenant. In the event
that the Prevailing Rate is not established before the commencement of
such Extended Term, Tenant shall continue to pay the Base Rent then in
effect; when the Prevailing Rate has been established, the new Base
Rent shall be retroactively effective as of the beginning of such
Extended Term, and Tenant shall pay Landlord any deficiency within
thirty (30) days after the establishment of the new Base Rent. If
Tenant has overpaid Base Rent during such period such overpayment shall
be offset against Rent thereafter coming due.
34. HAZARDOUS MATERIALS
(a) For the purpose of this Section 34(a) and this Lease, the
following terms are defined as follows:
(i) "HAZARDOUS MATERIALS" shall mean any substance: (A)
that now or in the future is regulated or governed by, requires
investigation or remediation under, or is defined as a hazardous waste,
hazardous substance, pollutant or contaminant under any governmental
statute, code, ordinance, regulation, rule or order, and any amendment
thereto, including for example only and without limitation, the
Comprehensive Environmental Response Compensation and Liability Act, 42
U.S.C. Section 9601 et seq., and the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901 et seq., or (B) that is toxic, explosive,
corrosive, flammable, radioactive, carcinogenic, dangerous or otherwise
hazardous, including for example only and without limitation, gasoline,
diesel, petroleum hydrocarbons, polychlorinated biphenyls (PCBs),
asbestos, radon and urea formaldehyde foam insulation.
(ii) "ENVIRONMENTAL REQUIREMENTS" shall mean all present
and future governmental statutes, codes, ordinances, regulations,
rules, orders, permits, licenses, approvals, authorizations and other
requirements of any kind applicable to Hazardous Materials.
(iii) "HANDLE," "HANDLED," or "HANDLING" shall mean any
installation, handling, generation, storing, treatment, use, disposal,
discharge, release, manufacture, refinement, presence, migration,
emission, abatement, removal, transportation, or any other activity of
any type in connection with or involving Hazardous Materials by Tenant
or its officers, employees, contractors, assignees, sublessees, agents
or invitees. The word "contractors" which is contained in the preceding
sentence shall not include any contractor which installs the Tenant
Improvements or improvements constructed for the Expansion Space (as
defined below).
-18-
<PAGE> 21
(iv) "ENVIRONMENTAL LOSSES" shall mean all costs and
expenses of any kind, damages, foreseeable and unforeseeable
consequential damages, fines and penalties incurred in connection with
any violation of and compliance with Environmental Requirements and
all losses of any kind attributable to the diminution of value, loss
of use or adverse effects on marketability or use of any portion of
the Premises or Building.
(b) Tenant covenants and warrants that it shall, at its own
expense, promptly take all actions required by any governmental agency
or entity in connection with the Handling of Hazardous Materials by
Tenant at or about the Premises, Building or Project, including
without limitation, inspection and testing, performing all cleanup,
removal and remediation work required with respect to those Hazardous
Materials introduced, released, or deposited by Tenant, complying with
all closure requirements and post-closure monitoring, and filing all
required reports or plans. All of the foregoing work and all Handling
of all Hazardous Materials shall be performed in a good, safe and
workmanlike manner by consultants qualified and licensed to undertake
such work and in a manner that will not interfere with Landlord's use,
operation, leasing and sale of the Project and other tenants' quiet
enjoyment of their premises in the Property. Tenant shall deliver to
Landlord prior to delivery to any governmental agency, or promptly
after receipt from any such agency, copies of all permits, manifests,
closure or remedial action plans, notices, and all other documents
relating to the Handling of Hazardous Materials at or about the
Premises, Building or Project by Tenant. Tenant shall remove at its
own expense, by bond or otherwise, all liens or charges of any kind
filed or recorded against the Premises, Building or Project in
connection with the Handling by Tenant, its agents, employees,
contractors and/or subcontractors, of Hazardous Materials, within ten
(10) days after the filing or recording of such lien or charge, and if
Tenant fails to do so, Landlord shall have the right, but not the
obligation, to remove the lien or charge at Tenant's expense in any
manner Landlord deems expedient.
(c) Landlord shall have the right, but not the obligation, to
enter the Premises at any reasonable time, upon prior notice (except
in the case of emergency), (i) to confirm Tenant's compliance with the
provisions of this Section, and (ii) to perform Tenant's obligations
under this Section if Tenant has failed to do so. Landlord shall also
have the right to engage qualified Hazardous Materials consultants to
inspect the Premises and review the Handling of Hazardous Materials,
including review of all permits, reports, plans, and other documents
regarding same. If Landlord engages a consultant upon the reasonable,
good faith belief that Tenant is in violation of its obligations under
this Section 30, Tenant shall pay the costs of Landlord's consultants'
fees and all costs incurred by Landlord in performing Tenant's
obligations under this Section. Landlord shall use reasonable efforts
to minimize any interference with Tenant's business caused by
Landlord's entry into the Premises, but Landlord shall not be
responsible for any interference caused thereby.
(d) Landlord represents and warrants to Tenant that, to the best
of Landlord's actual current knowledge, as of the Commencement Date,
the Building, and the real property on which such improvements are
constructed, do not contain any Hazardous Materials in violation of
Environmental Requirements.
35. GENERAL PROVISIONS
(i) Plats and Exhibits. Clauses, plats and exhibits, if any,
signed by the Landlord and the Tenant endorsed on or affixed to this
Lease are a part hereof.
(ii) Waiver. The waiver by Landlord or Tenant of any term, covenant
or condition herein contained shall not be deemed to be a waiver of
such term, covenant or condition on any subsequent breach of the same
or any other term, covenant or condition herein contained. The
subsequent acceptance of rent hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, other than the failure of the
Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of the
acceptance of such rent.
(iii) Joint Obligation. If there be more than one (1) Tenant, the
obligations hereunder imposed upon Tenants shall be joint and several.
(iv) Marginal Headings. The marginal headings and Article titles to
the Articles of this Lease are not a part of this Lease and shall have
no effect upon the construction or interpretation of any part hereof.
(v) Time. Time is of the essence of this Lease and each and all of
its provisions in which performance is a factor.
(vi) Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and
bind the heirs, successors, executors, administrators and assigns of
the parties hereto.
(vii) Recordation. Neither Landlord nor Tenant shall record this
Lease or a short form memorandum hereof without the prior written
consent of the other party.
(viii) Quiet Possession. Upon Tenant paying the rent reserved
hereunder and observing and performing all of the covenants,
conditions and provisions on Tenant's part to be observed and
performed hereunder, Tenant shall have quiet possession of the
Premises for the entire term hereof, subject to all the provisions of
this Lease.
(ix) Limitation on Liability. In consideration of the benefits
accruing hereunder, Tenant and all successors and assigns covenant and
agree that, in the event of any actual or alleged failure, breach or
default hereunder by Landlord: (1) Tenant's sole and exclusive
recourse shall be against Landlord's interest in the Building and
Tenant shall not have any right to satisfy any judgment which it may
have against Landlord from any other assets of Landlord, (2) No
partner, stockholder, director, officer, employee, beneficiary or
trustee (collectively, "PARTNER") of Landlord shall be sued or named
as a party in
-19-
<PAGE> 22
any suit or action (except as may be necessary to secure jurisdiction
over Landlord); (3) No service of process shall be made against any
Partner of Landlord (except as may be necessary to secure jurisdiction
over Landlord); (4) No Partner of Landlord shall be required to answer
or otherwise plead to any service of process; and (5) No judgment
will be taken against any Partner of Landlord.
(x) Late Charges. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent or other sums due hereunder will cause
Landlord to incur costs not contemplated by this Lease, the exact
amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges, and
late charges which may be imposed upon Landlord by terms of any
mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent or of a sum due from Tenant shall not be received
by Landlord or Landlord's designee within ten (10) days after Tenant's
receipt of written notice that such amount is past due, then Tenant
shall pay to Landlord a late charge equal to five percent (5%) of such
overdue amount. The parties hereby agree that such late charges
represent a fair and reasonable estimate of the cost that Landlord will
incur by reason of the late payment by Tenant. Acceptance of such late
charges by the Landlord shall in no event constitute a waiver of
Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted
hereunder.
(xi) Prior Agreements. This Lease contains all of the agreements of the
parties hereto with respect to any matter covered or mentioned in this
Lease, and no prior agreements or understanding pertaining to any such
matters shall be effective for any purpose. No provision of this Lease
may be amended or added to, except by an agreement in writing signed by
the parties hereto or their respective successors in interest. This
Lease shall not be effective or binding on any party until fully
executed by both parties hereto.
(xii) Attorneys' Fees. If any action for breach of or to enforce the
provisions of this Lease is commenced, the court in such action shall
award to the party in whose favor a judgment is entered, a reasonable
sum as attorneys' fees and costs. The losing party in such action shall
pay such attorneys' fees and costs. Each party shall also indemnify the
other party against and hold the other party harmless from all costs,
expenses, demands and liability the other party may incur if the other
party becomes or is made a party to any claim or action (a) instituted
by the indemnifying party against any third party, or by any third
party against the indemnifying party, or by or against any person
holding any interest under or using the Project by license of or
agreement with the indemnifying party; (b) for foreclosure of any lien
for labor or material furnished to or for the indemnifying party or
such other person; (c) otherwise arising out of or resulting from any
act or transaction of the indemnifying party or such other person; or
(d) necessary to protect the other party's interest under this Lease in
a bankruptcy proceeding, or other proceeding under Title 11 of the
United States Code, as amended. The indemnifying party shall defend the
other party against any such claim or action at the indemnifying
party's expense with counsel reasonably acceptable to the other party,
or at the other party's election, the indemnifying party shall
reimburse the other party for any reasonable legal fees or costs the
other party incurs in any such claim or action.
(xiii) Inability to Perform. This Lease and the obligations of Tenant
hereunder shall not be affected or impaired because the Landlord is
unable to fulfill any of its obligations or furnish services and
utilities hereunder or is delayed in doing so, if such inability or
delay is caused by reason of acts of God, strikes, lockouts, labor
troubles, inability to procure materials, governmental laws or
regulations, governmental requests for the general public welfare, or
other causes beyond the reasonable control of Landlord, provided that
Landlord shall use its commercially reasonable efforts to minimize any
such delay.
(xiv) Modification For Lender. If, in connection with obtaining
construction, interim or permanent financing for the Building, the
lender shall request reasonable modifications to this Lease as a
condition to such financing, following consultation with legal counsel,
Tenant will not unreasonably withhold, delay or defer its consent
thereto, provided that such modifications do not increase the
obligations of Tenant hereunder or materially adversely affect the
leasehold interest hereby created or Tenant's rights hereunder.
(xv) Sale of Premises by Landlord. In the event of any sale of the
Building, Landlord shall be and is hereby entirely freed and relieved
of all liability under any and all of its covenants and obligations
contained in or derived from this Lease arising out of any act,
occurrence or omission occurring after the consummation of such sale;
and the purchaser, at such sale or any subsequent sale of the Premises
shall be deemed, without any further agreement between the parties or
their successors in interest or between the parties and any such
purchaser, to have assumed and agreed to carry out any and all of the
covenants and obligations of the Landlord under this Lease.
(xvi) Subordination, Attornment.
(1) This Lease is and shall be subordinate to any encumbrance
now of record or recorded after the date of this Lease affecting the
Building, other improvements, and land of which the Premises are a
part. Such subordination is effective without any further act of
Tenant. If any mortgagee, trustee, or ground lessor shall elect to
have this Lease and any options granted hereby prior to the lien of
its mortgage, deed of trust, or ground lease, and shall give written
notice thereof to Tenant, this Lease and such options shall be deemed
prior to such mortgage, deed of trust, or ground lease, whether this
Lease or such options are deeded prior or subsequent to the date of
said mortgage, deed of trust, or ground lease, or the date of
recording thereof.
(2) In the event any proceedings are brought for foreclosure,
or in the event of a sale or exchange of the real property on which
the Building is located, or in the event of the exercise of the power
of sale under any mortgage or deed of trust made by Landlord covering
the Premises. Tenant shall attorn to the purchaser upon any such
foreclosure and sale and recognize such purchaser as the Landlord
under this Lease.
(3) Tenant agrees to execute any documents required to
effectuate an attornment or to make this Lease or any options granted
herein prior to the lien of any mortgage, deed of trust, or ground
lease, as the case may be.
-20-
<PAGE> 23
(4) Landlord agrees that Tenant's obligations to subordinate
under this Section to any existing and future ground lease, mortgage,
or deed of trust shall be conditioned upon Tenant's receipt of a
non-disturbance agreement from the party requiring such subordination
(which party is referred to for the purposes of this Section as the
"SUPERIOR LIENOR"). Such non-disturbance agreement shall provide, at a
minimum, that Tenant's possession of the Premises shall not be
interfered with following a foreclosure, provided Tenant is not in
default beyond any applicable cure periods. Landlord's obligation with
respect to such a non-disturbance agreement shall be limited to
obtaining the non-disturbance agreement in such form as the
Superior Lienor generally provides in connection with its standard
commercial loans, however, Tenant shall have the right to negotiate,
and Landlord shall use its good faith efforts and due diligence in
assisting Tenant in the negotiation of, revisions to that
non-disturbance directly with the Superior Lienor. Tenant agrees to
use its good faith efforts to reach agreement with the Superior Lienor
upon acceptable terms and conditions of a non-disturbance agreement.
(xvii) Name. Tenant shall not use the name of the Building or of the
development in which the Building is situated for any purpose other
than as an address of the business to be conducted by the Tenant in
the Premises, except that Tenant may use the Building's name in any of
Tenant's promotional material.
(xvii) Separability. Any provision of this Lease, which shall prove to
be invalid, void or illegal, shall in no way affect, impair or
invalidate any other provision hereof and such other provision shall
remain in full force and effect.
(xix) Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive, but shall, wherever possible, be cumulative with all
other remedies at law or in equity.
(xx) Choice of Law. This Lease shall be governed by the laws of the
state, in which the Premises are located.
(xxi) Signage. To the extent consistent with (i) any covenants,
conditions and restrictions encumbering the Building, and (ii)
applicable laws, statutes and ordinances, Tenant shall be entitled to
primary Building signage ("BUILDING SIGNAGE") and non-exclusive
monument signage at the Building ("MONUMENT SIGNAGE"), provided that
Landlord has approved, in writing, the configuration, size, character,
materials and location of such signage. The cost of installing the
Building Signage shall be paid for by Landlord out of Tenant's
Allowance pursuant to the Work Letter Agreement. The cost of the base
structure that the Monument Signage is affixed shall be the
responsibility of Landlord. The maintenance and repair of all such
signage shall be a Direct Expense allocable to Tenant. Tenant shall be
responsible for the cost of removal of the Building Signage upon the
expiration or earlier termination of this Lease.
(xxii) State Law Conflict. To the maximum extent permitted under the
laws of the State of Colorado, the parties agree that the provisions
of this Lease shall control any inconsistency and/or conflict with any
law of the State of Colorado.
(xxiii) Surrender of Premises. On the expiration of this Lease, or
within five (5) days after the earlier termination of the term, Tenant
shall surrender to Landlord the Premises in good condition (except for
ordinary wear and tear and repair and maintenance which is the
obligation of Tenant and damage and/or destruction which is not the
obligation of Tenant to repair pursuant to the provisions of this
Lease).
36. BROKERS
Each party warrants that it has had no dealings with any real estate
broker or agent in connection with the negotiation of this Lease,
excepting only Cushman & Wakefield and Staubach Company ("BROKERS"),
and it knows of no other real estate broker or agent who is entitled
to a commission in connection with this Lease. Landlord shall pay a
leasing commission to the Brokers in accordance with separate
documentation.
37. NOTICE
All notices and demands required to be sent to the Landlord or Tenant
under the terms of this Lease shall be personally delivered or sent by
certified mail, postage prepaid or by overnight courier (i.e., Federal
Express), to the addresses indicated in the Basic Lease Information,
or to such other addresses as the parties may from time to time
designate by notice pursuant to this paragraph. In addition, prior to
the Commencement Date, notices to Tenant shall be sent to Ms. Barb
Madden, Associate Director, Facilities, Abacus Direct Corporation,
8774 Yates Drive, Westminster, Colorado 80030. Notices shall be
deemed received upon the earlier of (i) if personally delivered, the
date of delivery to the address of the person to receive such notice
(ii) if mailed, two (2) days following the date of posting by the U.S.
Postal Service, and (iii) if by overnight courier, on the business day
following the deposit of such notice with such courier.
-21-
<PAGE> 24
The parties hereto have executed this Lease at the place and on the dates
specified immediately adjacent to their respective signatures. If this Lease
has been filled in, it has been prepared for submission to your attorney for
his approval. No representation or recommendation is made by the real estate
broker or its agents or employees as to the legal sufficiency, legal effect, or
tax consequences of this Lease or the transactions relating thereto.
<TABLE>
<S> <C>
LANDLORD: TENANT:
WESTERN STATES VENTURES, LLC, a ABACUS DIRECT CORPORATION, a Delaware
California limited liability company corporation
By: /s/ DAVID L. BONUCCELLI By: /s/ CARLOS SALA
----------------------------------- -----------------------------------
David L. Bonuccelli Carlos Sala
Its: Managing Member Its: Chief Financial Officer
Date: 6-2-98 Date: 5/27/98
-------------------------------- -------------------------------
Address: 818 University Avenue Address: 8774 Yates Drive
Sacramento, California 95825 Westminster, Colorado 80030
</TABLE>
-22-
<PAGE> 25
RULES AND REGULATIONS
1. Except as provided in the Lease, no sign, placard, picture,
advertisement, name or notice shall be inscribed, displayed or printed
or affixed on or to any part of the outside or inside of the Building
without the written consent of Landlord first had and obtained and
Landlord shall have the right to remove any such sign, placard,
picture, advertisement, name or notice without notice to and at the
expense of Tenant.
All approved signs or lettering on doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved of
by Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly
from outside the Premises, however, that Landlord may furnish and
install a building standard window covering at all exterior windows.
Tenant shall not without prior written consent of Landlord cause or
otherwise sunscreen any window.
2. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by any of the tenants or used by
them for any purpose other than for ingress and egress from their
respective Premises.
3. Tenant shall not alter any lock or install any new or additional locks
or any bolts on any doors or windows of the Premises. In the event of
the loss of any keys furnished by the Landlord, Tenant shall pay to the
Landlord the cost thereof.
4. The toilet rooms, 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 shall be borne by the Tenant who or whose
employees or invitees shall have caused it.
5. Tenant shall not overload the floor of the Premises or in any way
deface the Premises or any part thereof.
6. Tenant may move furniture, freight or equipment into the Building
without the prior notice to Landlord and all moving of the same into or
out of the Building shall be done in a way to not unreasonably
interfere with the other tenants of the Building. Landlord shall have
the right to prescribe the weight, size and position of all safes and
other heavy equipment brought into the Building and also the times and
manner of moving the same in and out of the Building. Safes or other
heavy objects shall, if considered necessary by Landlord, stand on
supports of such thickness as is necessary to properly distribute the
weight. Landlord will not be responsible for loss of or damage to any
such safe or property from any cause and all damage done to the
Building by moving or maintaining any such safe or other property shall
be repaired at the expense of Tenant.
7. Tenant shall not use, keep, or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit to suffer the
Premises to be occupied or used in a manner offensive or objectionable
to the Landlord or other occupants of the Building by reason of noise,
odors and/or vibrations, or interfere in any way with other tenants or
those having business therein, nor shall any animals or birds be
brought in or kept in or about the Premises or the Building.
8. Excepting microwave cooking and incidental cooking for employees and/or
subtenants of Tenant or a cafeteria installed by Tenant for its
employees in accordance with Section 10 of the Lease, no cooking shall
be done or permitted by any Tenant on the Premises, nor shall the
Premises be used for the storage of merchandise, for washing clothes,
for lodging, or for any improper, objectionable or immoral purposes.
Tenant shall, in no event, allow cooking which omits a strong odor
throughout the Building.
9. Tenant shall not use or keep in the Promises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material, or
use any method of heating or air conditioning other than that supplied
by Landlord.
10. Landlord will direct electricians as to where and how telephone and
communication wires are to be introduced. No boring or cutting for
wires will be allowed without the consent of the Landlord. The location
of telephones, call boxes and other office equipment affixed to the
Premises shall be subject to the approval of Landlord, not to be
unreasonably withheld or delayed.
11. On Saturdays, Sundays and legal holidays, and during non-Building hours
set forth in the Lease, access to the Building or to the halls,
corridors, elevators or stairways in the Building, or the Premises may
be refused unless the person seeking access is known to the person or
employee of the Building in charge and has a pass or is properly
identified. The Landlord shall in no case be liable for damages for any
error with regard to the admission to or exclusion from the Building of
any person. In case of invasion, mob, riot, public excitement, or other
commotion, the Landlord reserves the right to prevent access to the
building during the continuance of the same by closing of the doors or
otherwise, for the safety of the tenants and protection of property in
the Building and the Building.
12. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of the Landlord, is intoxicated or under
the influence of liquor or drugs, or who shall in any manner do any act
in violation of any of the rules and regulations of the Building.
13. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of
the Landlord.
-23-
<PAGE> 26
14. Tenant shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent same; provided, however,
Tenant shall be entitled to market the business operations of Tenant
at the Premises, in a professional manner, to other tenants within the
Building.
15. Landlord shall have the right to control and operate the public
portions of the Building, and the public facilities, and heating and
air conditioning, as well as facilities furnished for the common use
of the tenants, in such manner as it deems best for the benefit of the
tenants generally.
16. All entrance doors in the premises shall be left locked when the
Premises are not in use, and all doors opening to public corridors
shall be kept closed except for normal ingress and egress from the
Premises.
17. No employee of Tenant shall be permitted to smoke within fifty (50)
feet of the main and secondary entrance to the Building.
-24-
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> JUN-30-1998
<CASH> 13,496
<SECURITIES> 0
<RECEIVABLES> 9,260
<ALLOWANCES> 558
<INVENTORY> 0
<CURRENT-ASSETS> 23,081
<PP&E> 3,708
<DEPRECIATION> 0
<TOTAL-ASSETS> 26,789
<CURRENT-LIABILITIES> 3,214
<BONDS> 8
0
0
<COMMON> 10
<OTHER-SE> 23,557
<TOTAL-LIABILITY-AND-EQUITY> 26,789
<SALES> 0
<TOTAL-REVENUES> 18,449
<CGS> 4,227
<TOTAL-COSTS> 9,031
<OTHER-EXPENSES> 0
<LOSS-PROVISION> (229)
<INTEREST-EXPENSE> 1
<INCOME-PRETAX> 5,496
<INCOME-TAX> 2,006
<INCOME-CONTINUING> 5,191
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,490
<EPS-PRIMARY> 0.36
<EPS-DILUTED> 0.34
</TABLE>
