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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[x] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934.
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934.
FOR THE TRANSITION PERIOD FROM TO
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Commission file number 0-28834
ABACUS DIRECT CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
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Delaware 84-111816 6
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(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification No.)
8774 Yates Drive, Westminster, Colorado 80030
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(Address of principal executive offices) (Zip Code)
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Registrants telephone number including area code: (303) 657-2800
(Registrant's telephone number)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, Par Value $.001 Per Share
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(Title of Class)
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 [ ]
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Indicate by checkmark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.[ ]
The aggregate market value of the voting stock held by non-affiliates of the
registrant as of March 2, 1998 is $434,467,775.
The number of shares outstanding of the registrant's Common Stock as of March
2, 1998 is 9,693,690.
Portions of the definitive Proxy Statement to be filed pursuant to Regulation
14A promulgated under the Securities Exchange Act of 1934 in connection with
the registrant's 1998 Annual Meeting of Stockholders are incorporated by
reference herein.
Exhibit A to the definitive Proxy Statement filed pursuant to Regulation 14A
promulgated under the Securities Exchange Act of 1934 in connection with the
registrant's 1997 Annual Meeting of Stockholders is incorporated by reference
herein.
Exhibit 10.06 to the Annual Report on Form 10-KSB of the registrant for the
fiscal year ended December 31, 1996 is incorporated by reference herein.
Portions of the registrant's Registration Statement which includes the
Prospectus, dated September 26, 1996, of the registrant filed pursuant to Rule
424(b) promulgated under the Securities Act of 1933 are incorporated by
reference herein.
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PART I
ITEM 1. BUSINESS.
Abacus Direct Corporation ("Abacus" or the "Company") is a leading
provider of information products and marketing research services to the direct
marketing industry. Abacus has developed a comprehensive and predictive source
of information regarding consumer purchasing behavior by creating a database
which includes consumer purchasing data from over 870 merchandise catalogs.
Abacus uses this proprietary database and its advanced statistical modeling
technology to provide direct marketers with information and analysis which
allows them to increase response rates and profits from their marketing
campaigns. The cost to a catalog company of using the Company's services is
typically less than 10% of the overall cost of such a marketing campaign.
As the global market for consumer goods and services has become
increasingly competitive, businesses are seeking to enhance their market
position by strengthening relationships with existing customers and targeting
new markets and customers. As a result, a growing number of businesses are
using direct marketing programs to identify and reach large numbers of
consumers in a cost-effective manner. Direct marketing programs are used for a
wide variety of products and services, including catalog merchandise, books and
periodicals, financial services, telecommunications, retail, business to
business, technology and fundraising.
Direct marketers, particularly consumer catalog companies, have long
considered consumers' past catalog purchasing patterns to be the best predictor
of future purchasing behavior and, therefore, the best indicator for targeting
marketing efforts. It has historically been difficult, however, for direct
marketers to obtain a comprehensive view of consumers' purchasing patterns.
Such companies have, therefore, attempted to expand their customer base by
augmenting their existing customer lists with lists of rented or exchanged
names of prospects who have purchased merchandise from other catalogs and
continuing to use those lists that generate sufficiently high response rates
and profit levels and abandoning those lists that do not. Although this
traditional approach has allowed many catalog companies to expand their
customer base, increasing competition and rising costs of direct marketing
activities have created a need for a comprehensive source of consumer catalog
purchasing information to allow more cost-effective targeting of their
marketing efforts.
The Company has addressed the need for a comprehensive source of
information on purchasing behavior by forming the Abacus Alliance, a
cooperative arrangement through which direct marketers, particularly catalog
companies, contribute their customers' purchasing histories to the Company in
exchange for access to the Company's information products and marketing
research services. The Company's services allow such companies to improve the
profitability of their mailing campaigns by enabling them to (i) target new
consumers whose past purchasing
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behavior indicates that they are likely to purchase a particular product at a
given time, (ii) prioritize existing customers by the probability of a positive
response based on historical buying patterns, (iii) eliminate prospects from
rented or exchanged lists that have a low probability of responding, and (iv)
properly position their products and develop marketing strategies through
market research.
As of December 31, 1997, the Abacus database contained over 88
million detailed buyer profiles compiled from records of over 1.5 billion
catalog purchasing transactions. The Company receives this data from the more
than 870 members of the Abacus Alliance. The Company believes Abacus Alliance
members include over 75% of the largest consumer merchandise catalogs in the
United States. The Company works closely with each client to determine its
needs, and applies advanced statistical modeling techniques to extract from the
database the names of consumers most likely, or least likely, to buy a product
offering. The Company's database is continually enhanced as members contribute
current sales transaction information and additional catalog companies join the
Abacus Alliance.
In order for clients to use the Company's services, they must pay for
each service according to a fee schedule established by the Company from time
to time, every time they utilize such services. By continually adding new data
to its database, increasing the performance of its existing information
products and marketing research services, providing new types of value added
services and continuing to invest in new technology, the Company seeks to
increase revenue from existing clients, develop new sources of revenue and
maintain its high client retention rate. The Company believes that the
favorable results that its clients have achieved using the Company's
information products and marketing research services have led to a retention
rate of more than 90% from 1996 to 1997, from 1995 to 1996 and from 1994 to
1995, respectively, excluding those clients that are no longer operating
catalogs. In addition, the Company has begun to leverage the resources and
capabilities it has developed to serve the catalog industry by applying those
resources and capabilities to other industries which use direct marketing
techniques.
On October 2, 1996, the Company consummated an initial public
offering (the "Offering") of 5,068,000 shares of its Common Stock, par value
$.001 per share (the "Common Stock"), of which 4,613,455 shares were sold by
certain stockholders (the "Selling Stockholders") of the Company. On October
28, 1996, the Company consummated the sale of 760,200 shares of Common Stock of
the Selling Stockholders solely to cover over-allotments. The Common Stock was
sold in the Offering at a price of $14.00 per share less underwriters discounts
and commissions of $.98 per share. The Offering was underwritten on a firm
commitment basis by Robertson, Stephens & Company LLC, Hambrecht & Quist LLC
and William Blair & Company LLC, as representatives of the underwriters.
The Company's predecessor, Abacus Direct Corporation, was
incorporated in Colorado in May, 1989. The Company was reincorporated in
Delaware on September 9, 1996. The term
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"Company" as used herein refers to Abacus Direct Corporation, a Colorado
corporation prior to the reincorporation and the successor Delaware corporation
thereafter. The principal executive offices of the Company are located at 8774
Yates Drive, Westminster, Colorado 80030 and its telephone number is (303)
657-2800.
RECENT DEVELOPMENTS
During the year ended December 31, 1997, Abacus continued to expand
its database and the Abacus Alliance. The number of participating catalogs
increased to over 870 catalogs as of December 31, 1997 from 700 as of December
31, 1996, representing an increase of approximately 25%. In addition, the
Company continued making investments in technology and systems capabilities,
significantly increasing its computing capacity. This growth has enhanced the
predictive capability of the Company's database and the quality of its
housefile, scoring and list optimization products. To more effectively exploit
the benefits of these changes, the Company increased its staff by 60% during
the year ended December 31, 1997. This has enabled the Company to increase its
revenue by expanding the use of its existing services and providing more
value-added services to its existing clients.
To accelerate the distribution of data products to the catalog
industry and to other industry segments, Abacus launched the Abacus E-Net(TM)
during 1997. The Abacus E-Net is comprised of a consortium of industry service
bureaus who have agreed to distribute Abacus data services to their customers
using an Abacus standard electronic just-in-time product delivery system.
The Company is also expanding applications of its services to other
industries which utilize direct marketing techniques. By leveraging its
database and analytical capabilities, the Company has initiated efforts to
provide data lists and related services to prospective clients in the financial
services, telecommunications, retail, business to business, technology and
fundraising industries.
SERVICES
The Company provides five general categories of information products
and marketing research services to its clients: prospect lists, housefile
scoring, list optimization, marketing research and data enhancement.
Prospect Lists. The Company's prospect lists service provides a
client with a list of prospective consumers which is ranked according to the
likelihood that such consumers will respond to a particular direct marketing
campaign. The criteria for ranking include recency, frequency, time of year
and dollar amount of catalog purchases. This service enables catalog companies
to expand their business base and offset consumer attrition.
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Housefile Scoring. The Company's housefile scoring service provides
a client with a ranking of the consumers contained on the client's housefile
according to the probability that a particular consumer will make a repeat
purchase from a catalog. This service also allows a client to identify inactive
consumers who are most likely to respond to a renewed sales initiative. The
Company provides these services by matching the Company's database of active
direct marketing consumers with a client's housefile. The housefile program
enables catalog companies to profitably manage promotional programs targeted at
their existing customers and cost effectively determine when to solicit
customers who have not made recent purchases from the catalog.
List Optimization. The Company's list optimization service
eliminates stale or unresponsive names from lists that a client has purchased
from or exchanged with other catalog companies, enabling the client to identify
and target the most likely buyers. This process not only increases the
profitability of lists a client currently uses, but permits the client to use
lists that were previously considered unprofitable.
Marketing Research. The Company's marketing research service
provides a client with detailed information regarding the catalog industry
which was not previously available to catalog companies. The Company uses the
data contributed by the Abacus Alliance members to create comprehensive written
reports which accurately describe catalog market size, share, activity and
other key marketing data that allow clients to develop their marketing
initiatives. The marketing research service reports provide clients information
on (i) seasonality, to help identify optimal mail dates, (ii) cross-category
catalog purchasing behavior, to allow the refinement of the catalog's
merchandise mix, and (iii) transaction histories, to aid in planning
advertising, cross-promotion and mail frequency.
Data Enhancement. The Company's data enhancement service allows
clients outside the catalog industry to use Abacus data to target their
customers. The Company achieves this by overlaying its proprietary database
variables onto its clients' files which provides additional information to
clients regarding their customers. This service is offered to large consumer
companies in industries such as financial services, telecommunications, retail,
business to business and technology and fundraising
TECHNOLOGY
The Company has made significant investments to develop its
proprietary database and technology. Key elements of the Company's technology
include its proprietary database management and modeling software.
Database. The Abacus Alliance database is primarily comprised of
transactional data contributed by the Abacus Alliance members on a monthly,
quarterly or semi-annual basis. The database contains information regarding
each consumer purchase transaction, including the catalog
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name, catalog product category, date of purchase and amount of purchase.
Millions of new transactions are added to the database each week, providing an
increasingly detailed purchase profile underlying each catalog consumer in the
database. Transaction updates received from Abacus Alliance members are
converted to the Company's format and processed through a rigorous quality
assurance program. The data is enhanced with externally sourced demographic
data. The Company's database contains records of over 1.5 billion consumer
catalog transactions collected over the past five years. Based on the Direct
Marketing Association's ("DMA") estimate that approximately 82 million
consumers in the United States have purchased from catalog companies during the
past 12 months, the Company believes its database includes virtually all
catalog consumers in the United States.
Proprietary Software. The Company's proprietary database management
software is able to manage large databases, facilitating rapid and
cost-effective delivery of modeling and production functions. The Company's
proprietary modeling software utilizes predictive scoring and analytical
techniques to improve list performance. The Company has also developed process
automation software which integrates and automates virtually all stages of
model development and list production and allows the Company to quickly and
cost effectively generate dozens of models for a given client.
Computer Technology. The Company has adopted client server computer
architecture which (i) enables parallel processing, permitting large numbers of
tasks to be executed simultaneously at high speed, (ii) is highly scalable,
allowing ongoing capacity increases, and (iii) provides system and data
redundancies that protect against system failures. The Company attempts to
maintain a secure environment for both systems and data by protecting against
unauthorized electronic access. The Company's database is backed up regularly,
utilizing four separate offsite locations. The Company operates its data center
24 hours a day, 7 days a week.
SALES AND MARKETING
The Company markets and sells its services through a direct sales and
marketing force comprised of 49 people. The Company believes that its sales
representatives have an in-depth understanding of the catalog industry which
allows them to function as marketing resources for their clients. The Company's
sales strategy includes (i) adding new members to the Abacus Alliance, (ii)
increasing penetration of existing clients by selling additional prospect names
and offering new value added services and (iii) leveraging the Company's
database to serve non-catalog industries that also use direct marketing to
reach their customers.
The Company has significantly increased its efforts to educate the
catalog industry on the unique marketing services it offers to its clients by
regularly publishing an industry newsletter that highlights a particular
catalog's use of the Company's database and by having Company employees
regularly speak at industry conventions. The Company also hosted its second
annual catalog
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company symposium in January 1998, attended by approximately 220 representatives
from catalog companies. Selling and marketing expenses for the year ended
December 31, 1997 were 24.5% of revenue. The Company believes that selling and
marketing expenses will remain relatively stable as a percentage of revenue
during the next fiscal year.
CUSTOMERS AND CONTRACTS
The Abacus Alliance consists of over 870 members. Members typically
operate under a three-year contract which provides that a client (i) submit
complete customer history transaction information to the Company on a regular
basis, (ii) license Abacus to use the data and (iii) pay for the Company's
services based upon an established price schedule. Such three year contracts
do not obligate the Company's clients to use the Company's services or pay the
Company any guaranteed fees. The contracts generally provide for automatic
thirty-six month renewals unless either party elects not to renew.
COMPETITION
The market for the Company's services is highly competitive. The
Company believes that the principal competitive factors in this market are
consistent delivery of (i) lists which generate high response rates, in a
timely fashion, and at competitive prices, (ii) large quantities of high
response names, and (iii) individualized customer support. The Company
competes directly with Smartbase, a division of Acxiom Corporation, Direct
Marketing Technology, a division of Experion Corp. and Experion Corp., each of
which collect and manage information relating to consumer purchase transactions
contributed by large numbers of catalog companies. The Company also competes
with a wide variety of companies which own and generate lists. In addition, the
Company competes indirectly with a number of direct marketing information
service businesses including Metromail Corp., Database America Information
Services, Inc., Donnelley Marketing, Inc. and R.L. Polk. Many of the Company's
existing competitors, and many potential new competitors, have longer operating
histories, greater name recognition and significantly greater financial,
technical and marketing resources than the Company. Such competitors may be
able to undertake more extensive marketing campaigns and make more attractive
offers to potential employees, distribution partners, and database
contributors.
PROPRIETARY TECHNOLOGY
The Company regards much of its software, database management
methods, modeling techniques and other data base information strategies as
proprietary trade secrets and relies on a combination of trade secret,
copyright, unfair competition and other intellectual property laws as well as
contractual agreements to protect its rights to such intellectual property. Due
to the difficulty of monitoring unauthorized use of and access to the Company's
intellectual property, however, such measures may not provide adequate
protection. In addition, there can be no
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assurance that the courts will enforce the contractual arrangements which the
Company has entered into to protect its proprietary technology. In addition,
there has been substantial litigation in the information services and computer
industry involving the ownership and scope of intellectual property rights. The
Company may bring or be subject to litigation to defend against claimed
infringement of its rights or of the rights of others or to determine the scope
and validity of the intellectual property rights of the Company and others.
Adverse determinations in such litigation could result in the loss or compromise
of the Company's proprietary rights, subject the Company to significant
liabilities, require the Company to seek licenses from third parties, or prevent
the Company from selling its services which could have a material adverse effect
on the Company's business, financial condition and results of operations.
REGULATION; PRIVACY ISSUES.
Growing concern about privacy and the collection, distribution and
use of information about individuals has led to self-regulation of such
practices by the direct marketing industry and to increased federal and state
regulation. The DMA has adopted guidelines regarding the fair use of such
information which it recommends be followed by participants in the direct
marketing industry. The Company is also subject to various federal and state
regulations concerning the collection, distribution and use of information
regarding individuals. Such laws include the Federal Drivers Privacy Protection
Act of 1994 and other state laws which limit or preclude the use of voter
registration and drivers license information, as well as laws which govern the
collection and release of consumer credit information. Although the Company's
compliance with the DMA's guidelines and such federal and state regulations has
not had a material adverse effect on the Company, no assurance can be given
that the DMA will not adopt additional guidelines or that additional federal or
state laws or regulations (including antitrust and consumer privacy laws) will
not be enacted or applied to the Company or its clients. Any such guidelines,
laws or regulations would adversely affect the ability of the Company to
collect and distribute consumer and other information or otherwise have a
material adverse effect on the Company's business, financial condition and
results of operations. Moreover, such guidelines, laws or regulations might
restrict or increase the cost of the activities of companies engaged in direct
marketing, potentially reducing their demand for the Company's services which
would have a material adverse effect on the Company's business, financial
condition and results of operations. To the extent the Company's clients do not
comply with such guidelines, laws or regulations, the Company may incur
liabilities which could have a material adverse effect on the Company's
business, financial condition and results of operations. The Company has also
adopted other policies to address these privacy concerns, including restricting
access to its database, requiring each employee to sign a nondisclosure and
confidentiality agreement and implementing data security systems at the
Company's data center. The Company has typically entered into three year
contracts with its catalog clients and there can be no assurance that a private
litigant or governmental entity will not challenge such arrangements under any
applicable antitrust or other laws.
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PRINCIPAL CUSTOMERS
The Company's ten largest customers accounted for 19.8% of the
Company's net sales for the year ended December 31, 1997. No customer
accounted for more than 6% of the Company's consolidated net sales in the
fiscal year ended December 31, 1997. No customer accounted for more than 5% of
the Company's consolidated net sales in the fiscal year ended December 31,
1997.
RESEARCH AND DEVELOPMENT
During the year ended December 31, 1997, the Company spent $1,507,000
for research and development, as compared to $913,000 and $407,000 in the
fiscal years ended December 31, 1996 and 1995, respectively. The Company's
research and development activities during the past year consisted primarily of
developing technologies and processes to deliver new and better data service
products to existing and prospective clients and industry segments.
EMPLOYEES
As of December 31, 1997, the Company employed approximately 155
people on a full time basis, including 67 in data processing, programming and
data production, 49 in sales and marketing, 12 in statistical and product
development, and 27 in general and administration. None of the Company's
employees are covered by a collective bargaining agreement. The Company
believes that its relations with its employees are good.
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
revenues are usually lower and operating profit is usually higher during the
second half of each year.
ITEM 2. PROPERTIES.
The Company's executive office and principal operations are located
in a 27,218 square feet facility that it leases in Westminster, Colorado
pursuant to an agreement which expires September, 1999. In 1998, the aggregate
annual rental payments for the facility will be approximately $825,000. The
Company leases an additional 11,298 square feet in Westminster, Colorado
pursuant to an agreement which expires March, 1999 and provides for aggregate
annual
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rental payments of $206,000. The Company also leases a 6,378 square feet in New
York City pursuant to an agreement which expires September 2002 and provides
for aggregate annual rental payments of $239,000. In addition, the Company
leases 1,424 and 1,983 square feet of general office space in Hawthorne, New
York and Atlanta, Georgia, respectively. The Company believes that its
existing facilities are adequate for its present needs.
ITEM 3. LEGAL PROCEEDINGS.
The Company is not a party to any material legal proceedings.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
Not applicable.
PART II
ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
The Company's Common Stock is traded in the Nasdaq National Market
System. There were approximately 2,000 beneficial holders of the Company's
Common Stock at March 2, 1998. The table below sets forth high and low bid
prices for the Company's Common Stock for each quarter from the Offering
through December 31, 1997.
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High Low
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September 1996 $21 $17
October-December 1996 $32.50 $15.75
January-March 1997 $30.25 $18
April- June 1997 $33.25 $17
July-September 1997 $34.25 $26.50
October-December 1997 $44.25 $31.50
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The Company has not declared or paid a cash dividend since its
organization and has no present intention of paying any such dividend in the
foreseeable future.
During 1997 the Company issued an aggregate of 136,824 shares of
Common Stock upon exercise of options granted under each of the Company's
Amended and Restated 1989 Stock Option Plan, as amended, and its Amended and
Restated 1996 Stock Option Plan, at a weighted average exercise price of $30.71
per share. Certain of such issuances were exempt from the registration
provisions of the Securities Act of 1933 pursuant to Section 4(2) thereof and
the rules promulgated thereunder, and the securities issued in connection
therewith were deemed to be restricted securities. The remainder of such
issuances were covered by the Company's Registration Statement on Form S-8. No
underwriter was engaged in connection with such sales of Common Stock.
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ITEM 6. SELECTED FINANCIAL DATA.
(In thousands, except supplemental operating and per share data)
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YEAR ENDED DECEMBER 31,
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1997 1996 1995 1994 1993
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STATEMENT OF OPERATIONS DATA:
Revenue $ 30,971 $ 17,532 $ 9,331 $ 6,451 $ 4,155
Income (loss) from operations 11,611 6,370 3,174 2,395 1,327
Income (loss) before income taxes 11,806 6,254 2,976 2,072 958
Net income (loss) 7,497 3,865 2,426 2,012 944
Net income (loss) per common share - $ 0.78 $ 0.43 $ 0.27 $ 0.57 $ 0.44
basic
Net income (loss) per common share - $ 0.74 $ 0.40 $ 0.27 $ 0.23 $ 0.11
diluted
Weighted average number of outstanding 9,546 9,094 9,079 3,513 2,164
common shares - basic
Weighted average number of outstanding 10,058 9,614 9,120 8,743 8,420
common shares - diluted
SUPPLEMENTAL OPERATING DATA:
Abacus Alliance catalogs 874 700 565 393 296
Households represented in database (in
millions) 88 88 78 49 42
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AS OF DECEMBER 31,
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1997 1996 1995 1994 1993
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BALANCE SHEET DATA:
Cash and cash equivalents $ 10,490 $ 5,924 $ 1,345 $ 1,856 $ 96
Working capital 16,127 8,218 2,424 2,386 1,543
Total assets 22,592 12,064 5,050 4,244 2,718
Stockholders' equity (deficit) 19,177 10,012 1,190 (1,233) (3,310)
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ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
OVERVIEW
Abacus believes it has developed the most comprehensive and predictive
source of catalog consumer purchasing behavior in the United States by creating
a database which includes consumer purchasing data from over 870 catalogs. The
Company's information and marketing research services allow catalog companies to
improve the profitability of their direct mailing campaigns by enabling them to
(i) target new consumers whose past purchasing behavior indicates that they are
likely to purchase a particular product at a given time, (ii) prioritized
existing customers by the probability of a positive response based on historical
buying patterns, (iii) eliminate prospects from rented or exchanged lists that
have a low probability of responding, and (iv) properly position their products
and develop marketing strategies through market research.
During the last three years, the Company has experienced rapid growth
of its client base, database, revenue and operating income. The Abacus Alliance
grew from 565 to over 870 catalogs and the Company's database grew from 77
million to approximately 88 million households during this period of time. The
Company's revenue for the years ended December 31, 1995, 1996 and 1997 increased
by 44.6%, 87.9%, and 76.7% respectively, while its operating profits increased
from $3.2 million in 1995 to $11.6 million in 1997. The Company attributes its
revenue and operating profit growth to the widespread acceptance of Abacus'
services within the catalog industry, increased penetration of the Company's
services among its existing clients, an increased number of clients and a
broadening of its service line. Annual operating margins for the years ended
December 1995, 1996 and 1997 were 34.0%, 36.3%, and 37.5%, respectively as the
Company continued to better leverage its costs of revenue and operating
expenses. The Company believes that Abacus Alliance members represent over 75%
of the largest consumer merchandise catalogs in the United States.
The Company's principal sources of revenue are derived from
prospecting lists, housefile scoring, list optimization, and marketing
information services. The Company creates prospect lists for its clients by
selecting names from the Abacus Alliance database of consumers who have
purchased merchandise in response to direct mail campaigns. Revenues from
prospecting services represented 78% of the Company's revenue for the year ended
December 31, 1997. The Company's housefile and optimization services, which
enable catalog companies to more profitably manage promotional programs directed
to existing and prospective customers, accounted for 20% of revenue for the year
ended December 31, 1997. The Company's marketing information services, which
provide clients with comprehensive catalog industry information, accounted for
2% of revenues in 1997.
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The Company's cost of revenue includes expenses associated with
creating, updating and managing the Company's database as well as building
statistical models. Selling and marketing expenses include the costs of
salaries and related benefits, commissions, travel and promotion. General and
administrative expenses include legal, accounting, insurance, human resources,
corporate communications and administrative salaries and related benefits.
Operating margins have been higher in the second half of each calendar year, as
second half revenues have historically been favorably affected by holiday
related direct marketing campaigns, while operating costs have not had a
corresponding seasonal increase. The Company's operating expenses are
determined, in part, based upon the Company's expectations of future revenue
growth and are substantially fixed in the short term. As a result, unexpected
changes in revenue growth could have a disproportionate effect on net income in
any given period.
RESULTS OF OPERATIONS
Twelve Months Ended December 31, 1997 Compared To Twelve Months Ended December
31, 1996
Revenues. Revenues increased 76.7% to $31.0 million for the year
ended December 31, 1997 from $17.5 million for the year ended December 31, 1996
principally due to increased sales to existing customers and, to a lesser
extent, new customers. Revenues from existing customers, those customers that
joined the Abacus Alliance prior to 1997, accounted for 85.8% of total revenues
while customers joining the Alliance in 1997 represented 14.2% of revenues.
All of the Company's service lines grew significantly with prospecting growing
75.4%, optimization 113.2%, housefile 57.6%, and marketing information services
135.3%. As a percentage of total revenues, prospecting accounted for 78%,
optimization and housefile 20%, and marketing information services 2%.
Cost of Revenues. Cost of revenues increased 58.4% to $5.9 million
for the year ended December 31, 1997 from $3.8 million for the year ended
December 31, 1996, primarily due to increased staff, depreciation and
processing costs associated with supporting higher revenues. Cost of revenues
decreased as a percentage of net revenues to 19.2% in 1997 from 21.4% in 1996,
primarily due to the fixed nature of a large portion of software, hardware and
systems processing costs which did not increase at the same rate as net
revenues.
Selling and Marketing Expenses. Selling and marketing expenses
increased 86.3% to $8.0 million for the year ended December 31, 1997 from $4.3
million for the year ended December 31, 1996. The increase in selling and
marketing expenses is due to increases in the Company's sales force and related
expenses, higher commissions as a result of significantly higher revenues,
- 14 -
<PAGE> 15
and the hiring of new marketing personnel dedicated to developing markets
outside the catalog business. As a percentage of net revenues, selling and
marketing expenses increased to 25.8% in 1997 from 24.5% in 1996. The increase
was due to investments of $1.1 million, or 3.6% of net revenues, to develop
direct marketing initiatives outside the catalog business, which were partly
offset by increased productivity in the catalog business of the Company.
During this initial stage 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 in these markets.
General and Administrative. General and administrative expenses
increased 77.5% to $3.9 million for the year ended December 31, 1997 from $2.2
million for the year ended December 31, 1996. The increase in general and
administrative expenses resulted primarily from increased staff to support
overall Company growth along with increased performance bonuses and salary
increases, higher recruiting and legal expenses and other expenses associated
with being a public company. General and administrative expenses during 1997
remained unchanged as a percentage of revenues at 12.6% from the year ended
December 31, 1996.
Research and Development. Research and development expenses
increased 65.0% for the year ended December 31, 1997 to $1.5 million from
$913,000 for the year ended December 31, 1996. As a percent of revenue,
research and development expenses decreased to 4.9% in 1997 compared to 5.2% in
1996. The increase in expense resulted from additional development efforts to
achieve increased product performance and new product development. In addition,
expenses increased due to start-up development costs for the Abacus E-Net and
for statistical development costs associated with industry segments outside the
catalog business. These increases, however, were less than the increase in
revenues for the year resulting in slightly lower research and development
expenses as a percentage of revenues during 1997.
Operating Profit. Operating profit increased 82.3% for the year
ended December 31, 1997 to $11.6 million from $6.4 million for the year ended
December 31, 1996. The operating margin rose to 37.5% for 1997 from 36.3% in
1996. The increases in operating profit and operating margin are due to higher
revenues along with the low variable nature of certain costs as slightly offset
by growing investments in the development of new markets by the Company.
Interest and Other Income (Expense), Net. Net interest income for
the year ended December 31, 1997 increased to $195,000 from net interest
expense of ($116,000) for the year ended December 31, 1996. The increase in
interest income was primarily due to the retirement of the Company's
subordinated debentures, the increased interest income earned on higher Company
cash balances resulting from the Company's initial public offering (IPO) in
September, 1996 and from internally generated funds.
- 15 -
<PAGE> 16
Income Taxes. The Company's effective income tax rate for the year
ended December 31, 1997 was 36.5% compared to 38.2% for the year ended December
31, 1996. The Company achieved a lower income tax rate primarily due to a
lower provision for state income taxes.
Net Income. Net income for the year ended December 31,1997 was $7.5
million or $0.74 per share (diluted) compared with net income of $3.9 million
or $0.40 per share (diluted) in 1996. The increase in net income and net
income per share reflects higher operating income and net interest income and a
lower effective tax rate partly offset by a 4.8% increase in the weighted
average number of common and common equivalent shares outstanding.
Twelve Months Ended December 31, 1996 Compared to Twelve Months Ended December
31, 1995
Revenues. Revenues increased 87.9% to $17.5 million for the year
ended December 31, 1996 from $9.3 million for the year ended December 31, 1995,
principally due to increased sales of prospect lists to existing clients and,
to a lesser extent, new clients. New clients during 1996 represented 14.9% of
revenues for the year ended December 31, 1996. Further contributing to the
increased sales were the growth of revenues from housefile scoring, 88.4%, and
optimization, 103.3% along with early stage revenues from marketing information
services.
Cost of Revenues. Cost of revenues increased 98.9% to $3.8 million
for the year ended December 31, 1996 from $1.9 for the year ended December 31,
1995, primarily due to increased costs associated with the Company's decision
to hire additional data processing staff to support growth in the Company's
client base and enhancements to the Company's database. Cost of revenues
increased as a percentage of revenue to 21.4% from 20.2%.
Selling and Marketing Expenses. Selling and marketing expenses
increased 74.8% to $4.3 million for the year ended December 31, 1996 from $2.5
million for the year ended December 31, 1995, principally due to increased
costs associated with the Company's decision to hire additional sales and
marketing staff to support the growth in the Company's client base. Selling and
marketing expenses decreased as a percentage of revenue to 24.5% from 26.3%.
General and Administrative Expenses. General and administrative
expenses increased 56.6% to $2.2 million for the year ended December 31, 1996
from $1.4 million for the year ended December 31, 1995, primarily due to the
addition of a Chief Operating Officer and employee performance bonuses during
the year. General and administrative expenses decreased as a percentage of
revenue to 12.6% from 15.1% for the year ended December 31, 1995.
Research and Development Expenses. Research and development expenses
increased 124.5% to $913,000 for the year ended December 31, 1996 from $407,000
for the year ended December 31, 1995, principally due to increased costs
associated with hiring additional research and development staff to pursue
basic research and customized modeling. Research and development expenses
increased as a percentage of revenue to 5.2% from 4.4%.
- 16 -
<PAGE> 17
Interest and Other Income (Expense). Net expense decreased 41.4% to
($116,000) for the year ended December 31, 1996 from ($198,000) for the year
ended December 31, 1995, primarily due to the retirement of the Company's
subordinated debentures and due to increased interest income earned on higher
Company cash balances resulting from the IPO and cash generated by operations.
Provision for Income Taxes. Provision for income tax expense
increased to $2.4 million for the year ended December 31, 1996 from $550,000
for the year ended December 31, 1995, primarily due to the utilization of all
available net operating loss carry forwards during 1995.
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 revenues are usually lower and operating profit is usually
higher during the second half of each year.
LIQUIDITY AND CAPITAL RESOURCES
The Company met its short-term liquidity needs and its capital
requirements through funds generated from operations and cash on hand.
Historically, the Company has funded its operations through cash flow from
operations and debt and equity financing.
Cash provided by operating activities was $6.7 million for the year
ended December 31, 1997 compared to $4.0 million for the same period in 1996.
Cash provided by operating activities was $2.4 million in 1995. The increases
in each period were due to higher net income before depreciation and
amortization, which was partially offset by investments in working capital.
The working capital increases were principally related to higher accounts
receivable balances resulting from increases in net revenue.
Cash used in investing activities was $2.3 million for the year ended
December 31, 1997 compared to $1.5 million for the same period in 1996. Cash
of $642,000 was used in investing activities in 1995. These activities
represent capital expenditures for computer equipment and systems and office
equipment necessary to support growth in the Company's revenues. Cash provided
by financing activities was $200,000 compared to $2.1 million provided by
financing activities in the same period in 1996. Cash used by financing
activities was $2.3 million in 1995. In 1997 cash was generated in
consideration for the issuance of stock upon the exercise of stock
- 17 -
<PAGE> 18
options and in 1996 cash was generated from proceeds of the Company's IPO. In
1995 cash was used principally to retire long term debt and to redeem Series A
Preferred Stock. The Company believes that its cash flow from operations and
cash on hand will provide adequate resources to meet its capital requirements
and operational needs for the foreseeable future.
NEW ACCOUNTING PRONOUNCEMENTS
In February 1997, the Financial Accounting Standards Board ("FASB")
issued Statement of Financial Accounting Standards ("SFAS") 128, Earnings Per
Share, which specifies the computation, presentation, and disclosure
requirements for earnings per share ("EPS"). SFAS 128 replaces the presentation
of primary and fully diluted EPS with basic and diluted EPS. Basic EPS excludes
all dilution and is based upon the weighted average number of common shares
outstanding during the period. Diluted EPS reflects the potential dilution that
would occur if securities or other contracts to issue common stock were
exercised or converted into common stock. Common equivalent shares are excluded
from the computation in periods in which they have an anti-dilutive effect. The
Company has adopted SFAS 128 for 1997 and has restated all previously reported
per share amounts to conform to the new presentation.
In June 1997, the FASB issued SFAS 130, Reporting Comprehensive
Income. SFAS 130 establishes standards for the reporting and presentation of
comprehensive income and its components in a full set for general purpose
financial statements. SFAS 130 requires that all items that are required to be
recognized under accounting standards as components of comprehensive income be
reported in a financial statement that is displayed with the same prominence as
other financial statements. SFAS 130 is effective for fiscal years beginning
after December 15, 1997. The Company will adopt SFAS 130 in 1998 and does not
expect such adoption to have a material impact on the Company's results of
operations.
In June 1997, the FASB issued SFAS 131, Disclosure about Segments of
an Enterprise and Related Information. SFAS 131 revises the current
requirements for reporting business segments by redefining such segments
according to management's disaggregation of the business for purposes of making
operating decision and allocating internal resources. SFAS 131 is effective
for fiscal years beginning after December 15, 1997, and the Company will adopt
SFAS 131 in 1998. Currently, the Company has no business segments that require
a change in reporting under SFAS 131.
FORWARD LOOKING INFORMATION
This Annual Report on Form 10-K (including this Management Discussion
and Analysis) contain forward looking statements that involve risks and
uncertainties, including those statements relating to customer outlook and
future opportunities, the expansion of the Abacus Alliance, the reception of
new products and technologies, the success of new initiatives and the
likelihood of
- 18 -
<PAGE> 19
incremental revenues offsetting expenses related to those new initiatives. The
actual results of the future events described in such forward-looking
statements could differ materially from those stated in such forward-looking
statements. Among the factors that could cause actual results to differ
materially are: demand for the Company's services from the direct marketing
industry, governmental regulation regarding privacy issues, the actions of
current and potential new competitors, rapid changes in technology, cyclical
nature of the direct marketing industry, overall economic conditions, postal
rates and paper prices 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
Annual Report on Form 10-K.
ITEM 7A. 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 and marketable securities, which
is designed for safety of principal, liquidity and diversification. Such
instruments 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, as a result of
its activities in the retail catalog market, is subject to the competitive and
fluctuating economic conditions of the direct marketing industry.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The response to this item is included in Item 14.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
Not applicable.
PART III
In accordance with General Instruction E(3), the information called
for by Part III (Items 10 through 13) is incorporated by reference from the
Company's definitive Proxy Statement to be filed pursuant to Regulation 14A
promulgated under the Securities Exchange Act of 1934 in connection with the
Company's 1997 Annual Meeting of Stockholders.
- 19 -
<PAGE> 20
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, AND REPORTS ON FORM 8-K.
(a) 1. Financial Statements and Schedules. The following
Financial Statements of the Company are included herein:
<TABLE>
<CAPTION>
<S> <C>
Report of Independent Accountants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-1
Balance Sheet - December 31, 1997 and 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-2
Statement of Operations - Years ended December 31, 1997, 1996 and 1995 . . . . . . . . . . . . . . . . . . . . F-3
Statement of Changes in Stockholders' Equity (Deficit) - Years ended December 31, 1997,
1996 and 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-4
Statement of Cash Flows - Years Ended December 31, 1997, 1996 and 1995 . . . . . . . . . . . . . . . . . . . . F-5
Notes to Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-6
</TABLE>
2. Financial Statement Schedules
The following financial statement schedule of the Company for each of
the years ended December 31, 1997, 1996 and 1995 is filed as part of
this Form 10-K, and should be read in conjunction with the Financial
Statements, and the related notes thereto of the Company.
Schedule II - Valuation and Qualifying Accounts Page S-1
Schedules other than those listed above have been omitted
because they are not applicable or the required information is shown in
the Financial Statements or the Notes thereto.
3. Exhibits:
3.01 Certificate of Incorporation of Abacus Direct
Corporation. Incorporated by reference to Exhibit
3.01 to the Registration Statement on Form SB-2
(Registration No. 333-5380) filed by the Company on
August 7, 1996 as amended (the "Registration
Statement").
3.02 By-laws of Abacus Direct Corporation. Incorporated
by reference to Exhibit 3.02 to the Registration
Statement.
10.01 Amended and Restated 1989 Stock Option Plan, as
amended. Incorporated by reference to Exhibit
10.0 to the Registration Statement.
- 20 -
<PAGE> 21
10.02 Amended and Restated 1996 Stock Incentive Plan.
Incorporated by reference to Exhibit A to the
definitive proxy statement filed pursuant to
Regulation 14A promulgated under the Securities
Exchange Act of 1934 in connection with the
Company's 1997 Annual Meeting of Stockholders.
10.03 Employment Agreement dated August 6, 1996 between
the Company and M. Anthony White. Incorporated by
reference to Exhibit 10.03 to the Registration
Statement.
10.04 Employment Agreement dated August 6, 1996 between
the Company and Daniel C. Snyder. Incorporated by
reference to Exhibit 10.04 to the Registration
Statement.
10.05 Employment Agreement dated April 25, 1997 between
the Company and Carlos E. Sala.
10.06 Lease dated November 19, 1996, as amended, between
Sheridan Realty Partners, L.P. and the Company for
suites 100, 200, 210 and 310, Sheridan Park One,
8774 Yates Drive, Westminster, CO 80030.
Incorporated by reference to Exhibit 10.06 to the
Annual Report on Form 10-KSB of the Company for the
fiscal year ended December 31, 1996.
10.07 Lease dated December 2, 1997, between Westpike LLC,
Garfield Limited Liability Company, 520 Cooper
Limited Liability Company and Philip M. Holstein, as
landlord, and the Company for suite 110 at 8700
Turnpike Drive, Westminster, CO 80030.
10.08 Sublease dated May 15, 1997, between The Really
Useful Company, Inc. and the Company for a portion
of the 15th floor at One Rockefeller Plaza, New
York, New York.
10.09 Form of Indemnification Agreement entered into
between the Company and each of its officers and
directors. Incorporated by reference to Exhibit
10.10 to the Registration Statement.
- 21 -
<PAGE> 22
10.10 Form of agreement between the Company and members
of the Abacus Alliance. Incorporated by reference
to Exhibit 10.11 to the Registration Statement.
10.11 Registration Rights Agreement dated as of August 5,
1996 among the Company and certain shareholders of
the Company named therein. Incorporated by reference
to Exhibit 10.18 to the Registration Statement.
10.12 Forms of Stock Option Agreements used under the
Amended and Restated 1989 Stock Option Plan, as
amended. Incorporated by reference to Exhibit 10.19
to the Registration Statement.
23.01 Consent of Price Waterhouse LLP.
27.01 Financial Data Schedule.
(b) Reports of Form 8-K:
No reports on Form 8-K have been filed during the
last quarter of the period covered by this report.
SIGNATURES
Pursuant to the requirements of Section 13 and 15(d) 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: March 30, 1998 ABACUS DIRECT CORPORATION
By: /s/ M. Anthony White
-----------------------------
M. Anthony White
Chairman of the Board and
Chief Executive Officer and
Director
-22-
<PAGE> 23
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons on behalf of
Abacus and in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
PRINCIPAL EXECUTIVE
OFFICER:
/s/ M. Anthony White Chairman of the Board and Chief March 30, 1998
------------------------------------------- Executive Officer and Director
M. Anthony White
PRINCIPAL FINANCIAL
AND ACCOUNTING OFFICER:
/s/ Carlos E. Sala Senior Vice President - March 30, 1998
------------------------------------------- Finance, Chief Financial Officer,
Carlos E. Sala Secretary and Treasurer
DIRECTORS:
/s/ Daniel C. Snyder President, Chief Operating Officer and March 30, 1998
------------------------------------------- Director
Daniel C. Snyder
/s/ Frank Kenny Director March 30, 1998
-------------------------------------------
Frank Kenny
/s/ Antony H. Lee Director March 30, 1998
-------------------------------------------
Antony H. Lee
</TABLE>
-23-
<PAGE> 24
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and
Stockholders of Abacus Direct Corporation
In our opinion, the financial statements listed in the index appearing
under Item 14(a)1. and 2. present fairly, in all material respects, the
financial position of Abacus Direct Corporation at December 31, 1997 and 1996,
and the results of its operations and its cash flows for each of the three
years in the period ended December 31, 1997, in conformity with generally
accepted accounting principles. These financial statements are the
responsibility of the Company's management; our responsibility is to express an
opinion on these financial statements based on our audits. We conducted our
audits of these statements in accordance with generally accepted auditing
standards which require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements, assessing
the accounting principles used and significant estimates made by management,
and evaluating the overall financial statement presentation. We believe that
our audits provide a reasonable basis for the opinion expressed above.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Boulder, Colorado
January 26, 1998
F-1
<PAGE> 25
ABACUS DIRECT CORPORATION
BALANCE SHEET
(IN THOUSANDS, EXCEPT PER SHARE DATA)
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1997 1996
------------ ------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $10,490 $ 5,924
Accounts receivable (less
allowance for doubtful
accounts of $787 and $375
at December 31, 1997, and 1996,
respectively) 8,120 3,735
Prepaid expenses and other assets 391 298
Income taxes receivable 52 --
Deferred tax assets 474 284
------- -------
Total current assets 19,527 10,241
Property and equipment, net 3,065 1,823
------- -------
$22,592 $12,064
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 220 $ 225
Accrued expenses and other 3,180 1,522
Income taxes payable -- 276
------- -------
Total current liabilities 3,400 2,023
Long-term obligations under capital lease 15 29
Commitments and contingencies (Note 6) -- --
Stockholders' equity:
Preferred stock, $1.00 par value,
1,000 shares authorized;
no shares issued and outstanding -- --
Common stock, $.001 par value;
25,000 shares authorized;
9,638 and 9,501 shares
issued and outstanding at December
31, 1997 and 1996, respectively 10 10
Additional paid-in capital 6,902 5,234
Retained earnings 12,265 4,768
------- -------
Total stockholders' equity 19,177 10,012
------- -------
$22,592 $12,064
======= =======
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-2
<PAGE> 26
ABACUS DIRECT CORPORATION
STATEMENT OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------
1997 1996 1995
-------- -------- --------
<S> <C> <C> <C>
Net Revenues $ 30,971 $ 17,532 $ 9,331
Cost of revenues 5,942 3,751 1,886
-------- -------- --------
Gross profit 25,029 13,781 7,445
-------- -------- --------
Operating expenses:
Selling and marketing 8,000 4,294 2,456
General and administrative 3,911 2,204 1,408
Research and development 1,507 913 407
-------- -------- --------
Total operating expenses 13,418 7,411 4,271
-------- -------- --------
Income from operations 11,611 6,370 3,174
-------- -------- --------
Interest and other income
(expense), net 195 (116) (198)
-------- -------- --------
Income before income taxes 11,806 6,254 2,976
Provision for income taxes (4,309) (2,389) (550)
-------- -------- --------
Net income $ 7,497 $ 3,865 $ 2,426
======== ======== ========
Net income per common share - basic $ 0.78 $ 0.43 $ 0.27
======== ======== ========
Net income per common share - diluted $ 0.74 $ 0.40 $ 0.27
======== ======== ========
Weighted average number of outstanding
common shares - basic 9,546 9,094 9,079
======== ======== ========
Weighted average number of outstanding
common shares - diluted 10,058 9,614 9,120
======== ======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-3
<PAGE> 27
ABACUS DIRECT CORPORATION
STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT)
(IN THOUSANDS)
<TABLE>
<CAPTION>
TOTAL
COMMON STOCK ADDITIONAL RETAINED STOCKHOLDERS'
---------------------- PAID-IN EARNINGS EQUITY
SHARES AMOUNT CAPITAL (DEFICIT) (DEFICIT)
-------- -------- ---------- --------- ------------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1994 9,094 $ 9 $ 280 ($ 1,523) ($ 1,234)
Repurchase of common stock (49) -- (3) -- (3)
Issuance of common stock, net 1 -- -- -- --
Net income -- -- -- 2,426 2,426
-------- -------- -------- -------- --------
Balance at December 31, 1995 9,046 9 277 903 1,189
Issuance of common stock, net 455 1 4,957 -- 4,958
Net income -- -- -- 3,865 3,865
-------- -------- -------- -------- --------
Balance at December 31, 1996 9,501 $ 10 $ 5,234 $ 4,768 $ 10,012
Issuance of common stock, net 137 -- 212 -- 212
Tax benefit related to
non-qualified stock options -- 1,456 -- 1,456
Net income -- -- 7,497 7,497
-------- -------- -------- -------- --------
Balance at December 31, 1997 9,638 $ 10 $ 6,902 $ 12,265 $ 19,177
======== ======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-4
<PAGE> 28
ABACUS DIRECT CORPORATION
STATEMENT OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------
1997 1996 1995
--------- -------- ---------
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net income $ 7,497 $ 3,865 $ 2,426
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 1,048 692 470
Provision for doubtful accounts receivable 412 249 4
Provision for deferred income taxes (190) (164) (120)
Changes in:
Accounts receivable (4,797) (1,587) (993)
Prepaid expenses and other assets (93) (140) (35)
Accounts payable (5) 146 15
Accrued expenses 1,658 995 288
Income taxes 1,128 (84) 361
-------- -------- --------
Net cash provided by operating activities 6,658 3,972 2,416
-------- -------- --------
INVESTING ACTIVITIES
Purchases of property and equipment (2,299) (1,492) (640)
Other 10 5 (2)
-------- -------- --------
Net cash provided by (used in) investing activities (2,289) (1,487) (642)
-------- -------- --------
FINANCING ACTIVITIES
Principal payments on long-term debt (15) (2,864) (581)
Issuance (repurchases) of stock 212 4,957 (3)
Redemption of Series A preferred stock -- -- (1,700)
-------- -------- --------
Net cash provided by (used in)
financing activities 197 2,093 (2,284)
-------- -------- --------
Net increase (decrease) in cash and cash equivalents 4,566 4,578 (510)
Cash and cash equivalents at beginning of period 5,924 1,346 1,856
-------- -------- --------
Cash and cash equivalents at end of period $ 10,490 $ 5,924 $ 1,346
======== ======== ========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
Interest paid $ 5 $ 210 $ 282
Income taxes paid 1,893 2,601 309
SUPPLEMENTAL SCHEDULE OF NON-CASH INVESTING AND
FINANCING ACTIVITIES
Additional paid in capital - exercise
of non-qualified stock options $ 1,456 $ -- $ --
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-5
<PAGE> 29
ABACUS DIRECT CORPORATION
NOTES TO FINANCIAL STATEMENTS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Abacus Direct Corporation ("Abacus" or the "Company"), is a leading
provider of specialized consumer information and analysis for the direct
marketing industry. The Company provides its services through its proprietary
database and advanced modeling technology.
REVENUE RECOGNITION
The Company generally provides services to its clients that result in a
deliverable product in the form of marketing data or customized written reports.
The Company's clients are billed and revenue is recognized when such product is
shipped to a client.
CASH EQUIVALENTS
Cash equivalents consist of money market investments purchased with
original maturities of three months or less. Such cash equivalents aggregated
approximately $9,937 and $5,258 at December 31, 1997 and 1996, respectively.
Cash equivalents are carried at amortized cost which approximates fair value.
PROPERTY AND EQUIPMENT
Property and equipment are carried at cost and depreciated using the
straight-line method over their estimated useful lives as follows:
Office and data processing equipment 3-10 years
Computer software 3 years
Leasehold improvements Lease term
RESEARCH AND DEVELOPMENT COSTS
Research and development costs are expensed as incurred.
CONCENTRATIONS OF CREDIT RISK
The Company's customers are primarily comprised of direct-marketing
companies. The Company performs periodic credit evaluations of its customers'
financial condition and does not generally require collateral.
ESTIMATES
The preparation of the Company's financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent liabilities as well as the reported
amounts of revenue and expenses. Actual results could differ from those
estimates making it reasonably possible that a change in these estimates could
occur in the near term.
F-6
<PAGE> 30
NET INCOME PER COMMON SHARE
In February 1997, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standard 128, Earnings Per Share ("SFAS 128"),
which specifies the computation, presentation, and disclosure requirements for
earnings per share ("EPS"). SFAS 128 replaces the presentation of primary and
fully diluted EPS with basic and diluted EPS. Basic EPS excludes all dilution
and is based upon the weighted average number of common shares outstanding
during the period. Diluted EPS reflects the potential dilution that would occur
if securities or other contracts to issue common stock were exercised or
converted into common stock. Common equivalent shares are excluded from the
computation in periods in which they have an anti-dilutive effect. The Company
has adopted SFAS 128 for 1997 and has restated all previously reported per share
amounts to conform to the new presentation.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts of the Company's financial instruments, including
cash and cash equivalents, short-term receivables and payables, approximate fair
values.
STOCK COMPENSATION PLANS
The Company applies APB Opinion 25, Accounting for Stock Issued to
Employees, in accounting for its stock option plans. The Company has adopted the
disclosure provisions of SFAS 123, Accounting for Stock-Based Compensation.
RECENT PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued SFAS 130,
Reporting on Comprehensive Income ("SFAS 130"), which is effective for all
periods beginning after December 15, 1997. SFAS 130 establishes standards for
reporting and displaying comprehensive income and its components with the same
prominence as other financial statements. All prior periods must be restated to
conform with the provisions of SFAS 130. The Company will adopt SFAS 130 during
the first quarter of fiscal 1998, but does not expect the new accounting
standard to have a material impact on the Company's reported financial results.
RECLASSIFICATIONS
Certain reclassifications have been made in the 1996 and 1995 financial
statements to conform to the 1997 presentation.
2. PROPERTY AND EQUIPMENT
Property and equipment consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1997 1996
------- -------
<S> <C> <C>
Office and data processing equipment $ 4,286 $ 2,839
Computer software 1,138 630
Leasehold improvements 417 369
------- -------
5,841 3,838
Accumulated depreciation and amortization (2,776) (2,015)
------- -------
Property and equipment, net $ 3,065 $ 1,823
======= =======
</TABLE>
F-7
<PAGE> 31
3. ACCRUED EXPENSES AND OTHER
Accrued expenses consists of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
1997 1996
------ ------
<S> <C> <C>
Sales commissions $ 397 $ 165
Bonuses 1,149 647
Vacations 371 261
Payroll and related expenses 549 --
Third party commissions 207 42
Other 507 407
------ ------
$3,180 $1,522
====== ======
</TABLE>
4. STOCK OPTION PLAN AND EARNINGS PER SHARE
STOCK OPTION PLAN:
1989 Plan
The Company's Amended and Restated 1989 Stock Option Plan (the 1989
Plan) provided for the granting of options to purchase up to 1,836 shares of
Common Stock to key employees and others associated with the Company. The
exercise price per share of a nonqualified stock option to directors or
consultants could not be less than 85% of the fair market value at the time of
grant as determined by the board of directors. The exercise price per share of
an incentive stock option to key employees could not be less than 100% of the
fair market value at the time of grant.
In 1994, the 1989 Plan was amended to provide for immediate vesting in
all stock options with the Company having certain repurchase rights at the price
paid by optionee. These repurchase rights generally lapse over a five-year
period. The Board of Directors has resolved that no additional options would be
granted from this plan after September, 1996.
1996 Plan
In August 1996, the Company adopted a Stock Incentive Plan with 400
shares reserved for issuance to employees and directors of the Company. Options
granted under this plan expire ten years from the date of grant and generally
vest over a period of four years.
In June 1997, the Shareholders of the Company approved the amendment of
the 1996 Stock Incentive Plan to increase the number of shares available for
issuance by 325.
F-8
<PAGE> 32
The following is a summary of stock option activity:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
EXERCISE
OPTIONS PRICE
------- --------
<S> <C> <C>
Outstanding December 31, 1994 10 $ .06
Granted 502 1.32
Forfeited (1) .06
Exercised (1) .06
----- ------
Outstanding December 31, 1995 510 1.30
Granted 235 8.86
Forfeited (1) 1.32
Exercised -- --
----- ------
Outstanding December 31, 1996 744 3.69
Granted 494 24.73
Forfeited (35) 11.05
Exercised (137) 1.55
----- ------
Outstanding December 31, 1997 1,066 13.46
===== ======
</TABLE>
The following table summarizes information about exercisable stock
options as of the following dates:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
EXERCISE
SHARES PRICE
------ -------
<S> <C> <C>
December 31, 1995 5 $ .06
December 31, 1996 102 1.25
December 31, 1997 575 3.78
</TABLE>
The following table summarizes information about stock options
outstanding at December 31, 1997:
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
RANGE OF OUTSTANDING REMAINING
EXERCISE AT CONTRACTUAL
PRICES 12/31/97 LIFE
------ -------- ----
<S> <C> <C>
$.06 1 5.71
1.32 362 7.67
4.20 133 8.34
14.00 77 8.74
21.25 4 9.25
21.50 152 9.12
21.75 8 9.01
26.25 316 9.43
27.75 6 8.85
35.00 7 9.78
-------- -------
1,066 8.59
======== =======
</TABLE>
At December 31, 1997 there were 232 shares available for grant under
the stock option plan.
F-9
<PAGE> 33
The Company applies APB Opinion 25 in accounting for its stock
compensation plans, and no compensation expense has been recognized in the
financial statements. Had compensation expense for the Company's stock option
plan been determined based on the fair values at the grant dates for awards
under the plan consistent with the method of accounting prescribed by FASB
Statement 123, the Company's net income and income per share would have been
decreased to the pro forma amounts indicated below:
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1997 1996
----------- ----------
<S> <C> <C> <C>
Net income As reported $7,497 $3,865
Pro forma 5,713 3,681
Net income per common share - basic
As reported $ .78 $ .43
Pro forma .60 .40
Net income per common share - diluted
As reported $ .74 $ .40
Pro forma .57 .38
</TABLE>
In accordance with the guidance provided under SFAS 123, fair values
are based on minimum values. The fair value of each option grant is estimated on
the date of grant using the Black-Scholes option-pricing model with the
following weighted-average assumptions used for grants in the year ended
December 31, 1997: dividend yield of zero; expected volatility of .648;
risk-free interest rates ranging from 5.75% to 5.80%; and an expected term of
five years. The assumptions used for grants in the year ended December 31, 1996
were as follows: Dividend yield of zero, expected volatility of .784; risk-free
interest rates ranging from 6.03% to 6.25%; and a term of three years. The
risk-free rate used in the calculation is the yield on the grant date of a U.S.
Treasury Note with a maturity equal to the expected term of the option.
The weighted average fair value of options granted during the year
ended December 31, 1997 and 1996 was $14.15 per share and $6.29 per share,
respectively.
F-10
<PAGE> 34
EARNINGS PER SHARE:
The Company adopted SFAS 128, Earnings Per Share, for 1997. SFAS 128
requires mandatory presentation of both a basic and diluted earnings per share.
All per share amounts have been restated to comply with the requirements of SFAS
128. Basic and diluted net income per common share were arrived at using the
calculations outlined below:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------
1997 1996 1995
------- ------- -------
<S> <C> <C> <C>
Net Income available to
common shareholders $ 7,497 $ 3,865 $ 2,426
Weighted average shares
for basic EPS 9,546 9,094 9,079
Basic EPS $ .78 $ .43 $ .27
Effect of dilutive securities:
Stock options 512 520 41
Weighted average shares
for diluted EPS 10,058 9,614 9,120
Diluted EPS $ .74 $ .40 $ .27
</TABLE>
The dilutive effects of stock options were arrived at by applying the
treasury stock method, assuming the Company was to purchase common shares with
the proceeds from stock option exercises. The Company has no issued preferred
stock from which dividends would reduce earnings available to common
shareholders.
5. INCOME TAXES
The Company's provision for income taxes is comprised of the following
for the years ended December 31:
<TABLE>
<CAPTION>
1997 1996 1995
------- ------- -------
<S> <C> <C> <C>
Current tax expense
Federal $ 3,998 $ 2,269 $ 590
State 501 284 80
------- ------- -------
Total current expense 4,499 2,553 670
------- ------- -------
Deferred tax benefit
Federal (186) (164) (110)
State (4) -- (10)
------- ------- -------
Total deferred tax benefit (190) (164) (120)
------- ------- -------
Total provision for income taxes $ 4,309 $ 2,389 $ 550
======= ======= =======
</TABLE>
The Company's deferred tax assets are comprised of the following at
December 31:
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Allowance for doubtful accounts $288 $142
Depreciation and amortization 43 27
Accruals and other 143 115
---- ----
$474 $284
==== ====
</TABLE>
F-11
<PAGE> 35
The provision for income taxes differs from the amount computed by
applying the U.S. federal income tax rate of 34% to income before income taxes
as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------
1997 1996 1995
------- ------- -------
<S> <C> <C> <C>
U.S. federal income tax expense
at statutory rate $ 4,014 $ 2,126 $ 1,012
Increases (decreases) resulting from:
State income taxes, net of
federal benefit 327 173 62
Utilization of net operating
loss carryforwards and research
and development credits (108) (20) (510)
Nondeductible items 76 110 (14)
------- ------- -------
Provision for income taxes $ 4,309 $ 2,389 $ 550
======= ======= =======
</TABLE>
6. COMMITMENTS AND CONTINGENCIES
The Company leases office space under certain non-cancelable operating
leases which expire through September 29, 2002 and provide for options to renew
at the end of the primary terms. Rent expense under these operating leases
during the years ended December 31, 1997, 1996 and 1995 was $517, $254 and $210,
respectively. Future minimum payments under these operating leases as of
December 31, 1997 are as follows:
<TABLE>
<CAPTION>
<S> <C>
1998 $ 858
1999 592
2000 239
2001 239
2002 179
-------
$ 2,107
=======
</TABLE>
During 1995, the Company implemented a 401(K) plan for the benefit of
its employees. The Company matches 50% of employee contributions up to 6% of an
individual's salary under this plan. During 1997, 1996 and 1995, the Company's
matching contribution totaled $163, $124, and $25, respectively.
7. QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
The following is a summary of unaudited quarterly financial data for
the years 1997 and 1996:
<TABLE>
<CAPTION>
EARNINGS
PER
GROSS NET COMMON SHARE
SALES PROFIT INCOME BASIC DILUTED
----- ------ ------ ----- -------
<S> <C> <C> <C> <C> <C>
March 31, 1997 $ 5,525 $ 4,222 $ 981 $ .10 $ .10
June 30, 1997 5,986 4,700 1,085 .11 .11
September 30, 1997 10,756 9,117 3,377 .35 .33
December 31, 1997 8,704 6,990 2,054 .21 .20
---------- ---------- -------
$ 30,971 $ 25,029 $ 7,497
========== ========== =======
March 31, 1996 $ 2,780 $ 1,895 $ 252 $ .03 $ .03
June 30, 1996 3,267 2,421 383 .04 .04
September 30, 1996 6,368 5,401 1,975 .22 .21
December 31, 1996 5,117 4,064 1,255 .14 .13
---------- ---------- -------
$ 17,532 $ 13,781 $ 3,865
========== ========== =======
</TABLE>
F-12
<PAGE> 36
SCHEDULE II
ABACUS DIRECT CORPORATION
VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
<CAPTION>
BALANCE AT ADDITIONS BALANCE AT
BEGINNING CHARGED TO END
OF PERIOD OPERATIONS WRITE-OFFS OF PERIOD
--------- ---------- ---------- ---------
<S> <C> <C> <C> <C>
Allowance for Doubtful Accounts
Year Ended:
December 31, 1995 $122 $ 67 $ (63) $126
December 31, 1996 $126 $326 $ (77) $375
December 31, 1997 $375 $622 $(210) $787
</TABLE>
S-1
<PAGE> 37
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10.05 Employment Agreement dated April 25, 1997 between the Company and
Carlos E. Sala.
10.07 Lease dated December 2, 1997, between Westpike LLC, Garfield Limited
Liability Company, 520 Cooper Limited Liability Company and Philip M.
Holstein, as landlord, and the Company for suite 110 at 8700 Turnpike
Drive, Westminster, CO 80030.
10.08 Sublease dated May 15, 1997, between The Really Useful Company, Inc.
and the Company for a portion of the 15th floor at One Rockefeller
Plaza, New York, New York.
23.01 Consent of Price Waterhouse LLP.
27.01 Financial Data Schedule.
</TABLE>
<PAGE> 1
EXHIBIT 10.05
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of April 25, 1997 (the "Agreement") by
and between ABACUS DIRECT CORPORATION, a Delaware corporation having an office
located at 8774 Yates Drive, Westminster, Colorado 80030 (the "Corporation"),
and Carlos E. Sala, having an address at 3606 Ainsworth Drive, Dallas, Texas
75229 ("Executive").
W I T N E S S E T H
WHEREAS, the Corporation desires to employ Executive in an executive
capacity and to be assured of his services as such on the terms and conditions
hereinafter set forth,
WHEREAS, Executive is willing to accept such employment on the terms
and conditions hereinafter set forth,
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and intending to be legally bound hereby, the
Corporation and Executive hereby agree as follows:
1. Employment.
(a) Subject to the terms and conditions set forth
in this Agreement, the Corporation offers and the Executive hereby accepts
employment, effective as of the time of May 19, 1997 (the "Commencement Date").
(b) The Corporation hereby employs Executive as
the Senior Vice President - Finance, Chief Financial Officer, Secretary and
Treasurer of the Corporation subject to the supervision and direction of the
Chairman of the Board and Chief Executive Officer of the Corporation and the
Board of Directors of the Corporation. Executive shall be responsible for the
financial and accounting matters of the Corporation, together with such other
responsibilities; and duties consistent with his executive position and of such
nature as are usually associated with his office as may be designated from time
to time by the Chairman of the Board and Chief Executive Officer of the
Corporation or the Board of Directors of the Corporation. Such duties shall be
performed primarily in the Denver, Colorado area and subject to travel outside
of such area as may be necessary for Executive to perform his duties.
<PAGE> 2
(c) Executive shall faithfully and diligently discharge
his duties hereunder and use his best efforts to implement the policies
established by the Chairman of the Board and Chief Executive officer and the
Board of Directors of the Corporation. Executive agrees to devote substantially
all of his time and attention exclusively to the rendering of services
hereunder.
2. Compensation.
(a) During the Term of Executive's employment
hereunder, the Corporation shall cause Executive to receive a base salary in
the amount of Two Hundred Thirty Thousand ($230,000.00) Dollars, which base
salary shall be increased for each year of the Term thereafter in proportion to
the increase during the preceding year in the Consumer Price Index (All Urban
Consumers) published by the U.S. Department of Labor or by such higher amount
as the Corporation's Board of Directors shall in the exercise of its reasonable
discretion determine. Such base salary, as from time to time increased, is
hereafter referred to as the "Base Salary". The Base Salary shall be payable in
accordance with the present payroll practices of the Corporation. In addition,
Executive may receive such additional compensation (in the form of bonuses,
etc.) that the Corporation's Board of Directors shall, in the exercise of its
good faith and reasonable discretion, determine.
(b) In addition to the salary described in
Section 2(a) above, for each fiscal or partial fiscal year of the Corporation
during the Term hereof, Executive shall be entitled to receive incentive
compensation (as described below) to be paid on or before the 90th day
following the end of the Corporation's fiscal year (a "Fiscal Year").
Executive's entitlement to incentive compensation for any fiscal year of the
Corporation shall be predicated upon successful accomplishment of annual
business related performance goals for the Corporation established by the
Compensation Committee of the Board of Directors of the Corporation. The
incentive compensation under this subparagraph (b) for any year shall not
exceed fifty percent (50%) of Executive's Base Salary. For any Fiscal Year in
which the Executive is employed by the Company hereunder for a period
constituting less than an entire Fiscal Year (such period, a "Partial Year"),
the incentive compensation payable hereunder in respect of any such period
shall be (i) based upon the Company's level of performance during the Partial
Year, and (ii) shall be in an amount equal to the incentive compensation which
would be so payable if such period constituted the entire Fiscal Year in which
it occurs multiplied by a fraction, the numerator of which shall be the number
of days in the Partial Year and the denominator of which shall be 365. The
incentive compensation payable hereunder in respect of the 1997 Fiscal Year
shall be $71,521 (the product of
- 2 -
<PAGE> 3
$115,000 times a fraction, the numerator of which is the number of days
between the Commencement Date and December 31, 1997 and the denominator of
which is 365).
(c) The Corporation shall reimburse Executive, up
to a maximum of $40,000, for expenses directly relating to his relocation to
the Denver, Colorado area including moving van costs, up to thirty (30) days of
temporary housing and travel to the Denver area, upon submission of appropriate
receipts and invoices therefore.
3. Benefits, Etc. Executive shall be entitled to receive such
fringe benefits normally provided by the Corporation to executives in his
position (including life insurance and disability coverage, vacation,
sickleave, medical and dental insurance, travel and accident insurance,
participation in the Corporation's 401(k) Plan, stock options, incentive
compensation plans and other benefits generally available to senior executives
of the Corporation at any time during the term of this Agreement). The
Corporation agrees during the Term hereof that it will not terminate any
compensation plan or benefit program in which Executive participates or
terminate Executive's participation in any such plan or program, unless an
equitable agreement embodied in an ongoing substitute or alternative plan or
program has been made except to the extent that Executive is receiving benefits
pursuant to Section 9(b) hereof.
4. Term. Subject to earlier termination as hereinafter provided,
the original term of this Agreement shall commence on the Commencement Date and
shall continue in effect for a one year period ending on the first anniversary
of the Commencement Date; provided, however, that the term of this Agreement
shall automatically be extended for three (3) additional consecutive one year
periods commencing on each of the first, second and third anniversaries of the
Commencement Date, unless not later than ninety (90) days prior to each such
anniversary date, Executive or the Corporation shall have given notice that
such party does not wish to so extend this Agreement. The term of this
Agreement is referred to herein as the "Term".
5. Termination by The Corporation. The Corporation shall have
the right to terminate this Agreement for "Disability", "Cause" or without
"Cause".
(a) Disability. Disability shall be used herein
to mean that if, as a result of Executive's incapacity due to physical or
mental illness, Executive shall have been absent from his duties with the
Corporation on a full-time basis for six (6) consecutive months, and within
thirty (30) days after written notice of termination is given, Executive shall
not have returned to the
- 3 -
<PAGE> 4
full-time performance of Executive's duties, the Corporation may terminate
Executive's employment by reason of his "Disability."
(b) Cause. Termination by the Corporation of
Executive's employment for "Cause" shall mean termination as a result of: (i)
breach by Executive of any material provision of this Agreement; (ii) gross
negligence or willful misconduct of Executive in connection with the
performance of his duties under this Agreement, or Executive's willful refusal
to perform any of his material duties or responsibilities required pursuant to
this Agreement; (iii) Executive's misappropriation for personal use of assets
or business opportunities of the Corporation; (iv) Executive's embezzlement of
the Company's funds or property, or fraud on the part of Executive; or (v)
Executive's conviction of any Felony.
6. Termination by Executive. (a) Executive shall be entitled to
terminate his employment (i) in the event that the Corporation materially
breaches any of its obligations hereunder and such breach continues for thirty
(30) days after the Corporation receives written notice from Executive of such
breach or if at any time Executive is not reelected to serve as Chief Financial
Officer of the Corporation or Executive is removed as Chief Financial Officer
of the Corporation without "Cause" or (b) if there is a "change in control" of
the Corporation.
For purposes of this Agreement, a "change in control" of the
Corporation shall be deemed to have occurred if (a) any "Person" (as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Corporation representing Forty per cent (40%) or more of the combined
voting power of the Corporation's then outstanding securities; or (b) the Board
of Directors of the Corporation shall approve a sale of all or substantially
all the assets of the Corporation unless the Executive is a member of the Board
of Directors who affirmatively votes in favor of such sale transaction giving
rise to a "change in control".
In the event that Executive becomes entitled to terminate his
employment hereunder by reason of the occurrence of a "change in control" of
the Corporation or for any reason other than a "change in control", Executive
shall be entitled to terminate his employment immediately after the occurrence
of the event giving rise to such right, which right shall continue for a period
of four (4) months from the earlier of the date on which either the Corporation
informs Executive, or Executive otherwise determines, that Executive is
entitled to exercise such right.
- 4 -
<PAGE> 5
7. Notice of Termination. Any purported termination by the
Corporation or by Executive shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 14 hereof. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated.
8. Date of Termination, Etc. "Date of Termination" shall mean
(a) if Executive's employment is terminated by the Corporation for Cause, the
date specified in the Notice of Termination, which date shall be no earlier
than the date of such Notice; (b) if Executive's employment is terminated by
the Corporation for Disability, thirty (30) days after Notice of Termination is
given (provided that Executive shall not have returned to the performance of
his duties on a full-time basis during such thirty (30) day period); (c) if
Executive's employment is terminated by the corporation without Cause, the date
specified in the Notice of Termination, which date shall be no earlier than the
date that such notice is deemed given; (d) if Executive's employment is
terminated by Executive for any of the reasons specified in Section 6, such
date as Executive shall specify in Executive's Notice of Termination, which
date shall be no less than thirty (30) days after such Notice of Termination is
given.
9. Compensation Upon Termination. During Disability, Death or in
the Event of a Change in Control.
(a) in addition to any benefits to which
Executive is entitled under any insurance program or pension or benefit plan
then in effect, or any stock plan or restricted stock agreement, in lieu of all
other payments of salary or other compensation to which Executive would
otherwise be entitled hereunder, Executive shall be entitled to the following:
(i) If Executive's employment shall be terminated
for Cause, the Corporation shall pay his full
Base Salary through the Date of Termination
at the rate in effect at the time Notice of
Termination is given and the Corporation
shall have no further obligations to
Executive under this Agreement unless it
shall be finally determined by a court of
competent jurisdiction that such purported
termination for Cause was not justified or
was inappropriate in the circumstances.
- 5 -
<PAGE> 6
(ii) If Executive's employment with the
Corporation shall be terminated other than in
anticipation of or in connection with a
"change in control" (A) by the Corporation
without Cause, (B) by Executive for any of
the reasons specified in clause (a) of the
first paragraph of Section 6 hereof, or (C) at
the expiration of this Agreement by virtue of
it not being renewed, in lieu of any further
salary payments to Executive for periods
subsequent to the Date of Termination
(including any payments relating to any bonus
or incentive compensation), Executive shall be
entitled to receive a severance payment in an
amount equal to twelve (12) months of the Base
Salary then in effect and incentive
compensation, if earned, payable in respect of
a Partial Year pursuant to Section 2(b) hereof
relating to the period commencing on the first
day of such Fiscal Year and ending on the Date
of Termination, which severance shall be paid
either in accordance with the Corporation's
customary payroll practices or in a lump sum,
upon expiration of such term, as Executive may
elect, in either case, subject to normal
payroll deductions.
(iii) If Executive's employment with the
Corporation shall be terminated by Executive
or by the Corporation upon or within four (4)
months following a "change in control"
pursuant to clause (b) of the first paragraph
of Section 6 hereof, then Executive shall be
entitled to the benefits provided below:
(A) the Corporation shall pay Executive
his full Base Salary through the
Date of Termination at the rate in
effect at the time Notice of
Termination is given;
(B) In lieu of any further salary
payments to Executive for periods
subsequent to the Date of
Termination (including any payments
relating to any bonus or incentive
compensation), the Corporation shall
pay as severance pay to Executive,
not later than the fifth (5th) day
following the Date of Termination, a
lump-sum severance payment in an
amount equal to twelve (12) months
of the Base
- 6 -
<PAGE> 7
Salary then in effect and incentive
compensation, if earned, payable in
respect of a Partial Year pursuant
to Section 2(b) hereof relating to
the period commencing on the first
day of such Fiscal Year and ending
on the Date of Termination.
(b) For a twelve (12) month period after such
termination, other than for Cause, the Corporation shall arrange to provide
Executive and his family with life, disability and health insurance benefits
substantially similar to those which Executive is receiving immediately prior
to the Notice of Termination.
(c) Anything in this Agreement to the contrary
notwithstanding, in the event that any payment and the value of any benefit,
including the vesting of options or restricted stock, received or to be
received by Executive upon a Change of Control (collectively, a "Payment")
would result in all or a portion of such Payment being subject to excise tax
under Section 4999 of the Internal Revenue Code, then Executive's Payment shall
be either (A) the full Payment or (B) the maximum amount which would result in
no portion of the Payment being subject to excise tax under Section 4999 of the
Internal Revenue Code, whichever of the foregoing amounts specified in
subparagraphs (A) or (B) above, taking into account the applicable Federal,
state, and local employment taxes, income taxes, and the excise tax imposed by
Section 4999 of the Internal Revenue Code (and also taking into account
Executive's particular tax circumstances and filing status), results in the
receipt by Executive of the greatest amount notwithstanding that all or some
portion of such amount may be taxable under Section 4999 of the Internal
Revenue Code; provided, however, that Executive will be entitled to receive the
full Payment only if the after tax amount of the full payment described in
subparagraph (A) above exceeds the after tax amount resulting from the amount
described in subparagraph (B) above by at least $10,000. In the event that the
Payment, or any portion of the Payment, is reduced pursuant to this Section
9(c) to the amount described in subparagraph (B) above, the present value of
the amount to be received by Executive (for purposes of Section 280G) must be
reduced in such a way that the total amount to be received by Executive
(without regard to present value principles) is maximized. All computations
required to be made under this Section 9(c) shall be made by a nationally
recognized accounting firm which is the Corporation's outside auditor at the
time of such determination (the "Accounting Firm"). The Corporation shall cause
the Accounting Firm to provide detailed supporting calculations of the amounts
described herein to the Corporation and Executive within one business day after
an event entitling Executive to a Payment hereunder. The Executive may accept,
but shall not be bound
- 7 -
<PAGE> 8
to accept, the computations made by the Accounting Firm and shall have the
right to challenge any such computations in litigation or otherwise.
10. Stock Options.
(a) The corporation agrees to grant and issue to
Executive, under the 1996 Stock Incentive Plan of the Corporation (the "Plan"),
the following Options, as such term is defined in the Plan, to purchase common
stock (the "Common Stock") of the Corporation, as such term is defined in the
Plan:
(i) The Corporation agrees to grant and
issue to Executive, on the Commencement Date, a stock option under the Plan to
purchase 220,000 shares of Common Stock, having a term of ten years, at an
exercise price equal to the Fair Market Value on the date preceding the date
hereof, as defined in the Plan, and becoming exercisable in four equal annual
installments commencing the first anniversary of the date of grant.
(ii) subject to and within ten (10) days
of the approval by the stockholders of the Corporation of the authorization of
325,000 additional shares of Common Stock under the Plan at the Corporation's
upcoming Annual Meeting of Stockholders or at any time thereafter, the
Corporation agrees to grant and issue to Executive stock options under the Plan
to purchase 80,000 shares of Common Stock, having a term of ten years, at an
exercise price equal to the Fair Market Value on June 6, 1997, as defined in
the Plan, and becoming exercisable in four equal annual installments commencing
the first anniversary of the date of grant.
(b) The Corporation agrees to compensate the
Executive, in the form of restricted stock or options or such other form to be
mutually agreed to by Executive and the Corporation, for the value of
Executive's stock options of Dal-Tile International Inc. which Executive is
forfeiting in connection with the commencement of his employment with the
Corporation.
(c) The terms and provisions of the Options and
any other compensation paid pursuant to Section 10(b) above, shall be more
fully set forth in stock option agreements and other appropriate agreements to
be entered into by the Executive and the Corporation. The grant thereof shall
be subject to the execution of such agreements.
11. Intellectual Property Rights. All rights in inventions,
designs and intellectual property (including without limitation patents,
copyright, trade mark, registered designs,
- 8 -
<PAGE> 9
design rights and know-how) to which Executive may become entitled by reason of
activities in the course of Executive's employment shall vest automatically in
the Corporation and Executive shall, at the request and expense of the
Corporation, provide the Corporation with all information, drawings and
documents requested by the Corporation and execute such documents and do such
things as may be required by the Corporation to evidence such vesting. The
provisions of this Section 11 shall survive the termination of this Agreement.
12. Non-Competition and Non-Disclosure. The parties hereto each
acknowledge and agree that they have entered into a Non-compete, Non-disclosure
Agreement and Assignment Agreement, of even date herewith ("Non-Disclosure and
Non-Competition Agreement") and that such Non-Disclosure and Non-Competition
Agreement shall remain in full force and effect throughout the Term hereof and
shall survive the termination of this Agreement. Executive acknowledges that
the provisions of the Non-Competition and Non-Disclosure Agreement are fair and
reasonable and necessary to protect the good will and interest of the
Corporation and its subsidiaries and shall constitute separate and severable
undertakings given for the benefit of each of the Corporation and each
subsidiary and may be enforced by the Corporation on behalf of any of them.
13. Successors; Binding Agreement.
(a) The Corporation will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of the Corporation to
expressly assume and agree to perform this Agreement in the manner and to the
same extent that the Corporation would be required to perform it if no such
succession had taken place. Failure of the Corporation to obtain such
assumption and agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement, and for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used in this Agreement, "the Corporation"
shall mean the Corporation as hereinbefore defined and any successor to its
business and/or assets, as aforesaid, which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
(b) This Agreement shall inure to the benefit of
and be enforceable by the Corporation, its successors and assigns, and by
Executive, his personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive should die
while any amount would still be payable to him hereunder if Executive had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in
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<PAGE> 10
accordance with the terms of this Agreement to his devisee, legatee or other
designee or, if there is no such designee, to Executive's estate.
14. Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered by hand, telecopied (receipt
acknowledged) or mailed, by United States registered mail, return receipt
requested, postage prepaid, addressed to the respective addresses set forth on
the first page of this Agreement, provided that all notices to the Corporation
shall be directed to the attention of the Board with a copy to the Secretary of
the Corporation or to such other address as either party may have furnished to
the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
15. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge
is agreed to, in writing, and signed by Executive and such officer as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not expressly set forth in this
Agreement. Each party acknowledges that the services to be rendered under this
Agreement are unique and of extraordinary character, and in the event of a
breach by either party of any of the terms of this Agreement, the other party
shall be entitled, if it so elects, to institute and prosecute proceedings in
any court of competent jurisdiction, either at law or in equity, to obtain
damages for any breach of the terms and provisions hereunder, to enforce
specific performance by the breaching party of its obligations hereunder and to
enjoin the breaching party from acting in violation of this Agreement. Such
remedies are in addition to those otherwise available at law or in equity to
the Corporation. The validity, interpretation, construction and performance of
this Agreement shall be governed by the internal laws of the State of Colorado
(other than the choice of law principles thereof).
16. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
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<PAGE> 11
17. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
18. Prior Agreement. Executive represents, warrants and,
covenants that the execution, delivery and performance by Executive of this
Agreement, does not and will not contravene, conflict with or constitute a
default under or violation of any law, regulation, judgment, decree, agreement,
contract or other instrument binding, upon or applicable to Executive. Upon the
effectiveness of this Agreement, all prior agreements between Executive and
the Corporation will be terminated and of no further force and effect, except
for the Non-Competition and Non-Disclosure Agreement.
IN WITNESS WHEREOF, the Corporation and Executive have executed and
delivered this Employment Agreement on the date first above written.
ABACUS DIRECT CORPORATION
By: /s/ M. A. WHITE
-------------------------------------
Name: Martin A. White
Title: Chairman & CEO
EXECUTIVE
/s/ CARLOS E. SALA
-----------------------------------------
Carlos A. Sala
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<PAGE> 1
EXHIBIT 10.07
OFFICE SUITE LEASE
THIS LEASE is made this 2nd day of December, 1997, between WESTPIKE
LLC, a Colorado limited liability company; 1325 GARFIELD LIMITED LIABILITY
COMPANY, a Colorado limited liability company; 520 COOPER LIMITED LIABILITY
COMPANY, a Colorado limited liability company; and PHILIP M. HOLSTEIN, an
individual; and MIRIAM SIMMS, an individual (collectively the "Landlord") and
ABACUS DIRECT CORPORATION, a Delaware corporation ("Tenant").
1. PREMISES: In consideration of the payment of rent and
performance of the covenants and agreements by Tenant, as hereinafter set
forth, Landlord hereby leases to Tenant those certain premises designated on
the plan attached hereto as EXHIBIT A and incorporated herein by this reference
(the "Premises"), consisting of a total of approximately 11,298 rentable square
feet of space and known as Suite 110 in the building located at 8700 Turnpike
Dr., Westminster, Colorado 80030 presently known as the Westpark Place
Building, located on the real property more particularly described on EXHIBIT B
attached hereto and incorporated herein by this reference (the "Real Property")
together with a non-exclusive right, subject to the provisions hereof, to use
all appurtenances thereto, including, but not limited to, any common areas or
other areas of the Real Property designated by the Landlord for the exclusive
or non-exclusive use of the tenants of the Building. The Building, Real
Property, common areas and other appurtenances may hereinafter be referred to
as the "Building" or the "Building Complex". This Lease is subject to the
terms, covenants and conditions set forth herein and Tenant and Landlord each
covenant as a material part of the consideration for this Lease to keep and
perform each and all of said terms, covenants and conditions to be kept and
performed by them.
2. TERM:
(a) The term of this Lease shall be for fifteen (15)
months (the "Primary Lease Term") commencing at 12:01 a.m. on January 1, 1998
(the "Commencement Date") and terminating at 11:59 p.m. on March 31 1999 (the
"Termination Date"), unless sooner terminated pursuant to the terms hereof. In
the event the Premises are not "Ready for Occupancy" as such Term is defined
below, the Commencement Date shall mean and refer to the date the Premises are
Ready for Occupancy. The Primary Lease Term as it may be extended shall be
referred to herein as the "Term".
(b) Other than as set forth in a work letter attached
hereto and incorporated herein as EXHIBIT C (the "Work Letter"), Landlord shall
have no obligation for completion or remodeling of the Premises and Tenant
shall accept the Premises in its "AS IS" condition on the date Landlord
delivers possession to the Tenant. If Landlord has agreed to complete the work
in the Premises, such work shall be set forth in the Work Letter. If the
Premises are not Ready for Occupancy (as hereafter defined) on the Commencement
Date, unless such delay is caused by Tenant, its agents or employees, the
rental obligations hereunder shall not commence until the Premises are Ready
for Occupancy, provided, however, other than the payment of Rent, this Lease
and all covenants, conditions and terms hereof shall be in full force and
effect. The postponement of the Tenant's obligation to pay Rent and other sums
herein provided for such period shall be in full settlement for all claims
which Tenant might otherwise have by reason of the Premises not being Ready for
Occupancy on the Commencement Date. If Landlord is delayed in delivering the
Premises to Tenant because the same are not Ready for Occupancy or due to the
failure of a prior occupant to vacate the same, then the Rent and commencement
of the Term shall be postponed as hereinabove set forth, and such postponement
shall be in full settlement of all claims which Tenant may otherwise have by
reason of the delay of delivery. "Ready for Occupancy" as used herein shall
mean the date that Landlord shall have substantially completed any remodeling
work to be performed by Landlord to the extent set forth in the Work Letter.
The certificate of Landlord's representative in charge of supervising the
completion or remodeling of the Premises shall control conclusively the date
upon which the Premises are Ready for Occupancy. If Landlord has agreed to
perform work in the Premises, Landlord shall provide Tenant with notice that
the Premises are Ready for Occupancy.
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(c) If, as a result of the postponement or acceleration
of the Commencement Date, the Term would begin other than on the first day of a
calendar month, the Commencement Date shall be delayed until the first day of
the next calendar month and the Primary Lease Term shall be calculated from
such date. Tenant shall pay proportionate Rent at the same monthly rate set
forth herein (also in advance) for such partial month.
(d) "Lease Year" as used in this Lease shall mean each
twelve (12) month period beginning with the Commencement Date, or any
anniversary thereof and ending on the preceding day one (1) year later.
(e) Taking possession of the Premises by Tenant shall be
conclusive evidence as against Tenant that the Premises were in the condition
agreed upon between Landlord and Tenant, and acknowledgment of satisfactory
completion of the work which Landlord has agreed in writing to perform, if any,
except as otherwise set forth in this Lease and except as may be reflected in
any written agreement to the contrary (i.e. a punchlist), signed by both
Landlord and Tenant.
3. RENT: Tenant shall pay to Landlord, rent for the Premises
("Base Rent") as follows:
<TABLE>
<CAPTION>
ANNUAL MONTHLY
RENT PERIOD BASE RENT BASE RENT
--------------------------------------------------------------------------
<S> <C> <C>
January 1, 1998 through March 31, 1999 $206,190.00 $17,182.50
</TABLE>
All installments of Base Rent shall be payable in advance, on the first (lst)
day of each calendar month during the Term hereof. Rent for any period less
than a full calendar month shall be prorated based upon the number of days
during said month that the Lease Term was in effect. One monthly installment of
Base Rent shall be due and payable on the date of execution of this Lease by
Tenant. All Base Rent shall be paid without notice, demand, deduction or
offset, at the office of Landlord or to such other person or at such other
place as Landlord may designate in writing. Tenant shall pay to Landlord as
"Additional Rent" all other sums due under this Lease. Base Rent and Additional
Rent may be referred to herein as "Rent". This Lease is considered a "modified
gross lease" with the "Base Year" Operating Expenses included in the Base Rent.
Increases in Operating Expenses, if any, subsequent to the Base Year shall be
passed-through to Tenant based upon "Tenant's Prorata Share" of the Building as
more specifically described in Article 5 hereof.
4. SECURITY DEPOSIT: It is agreed that Tenant, concurrently with
the execution of this Lease, has deposited with Landlord, and will keep on
deposit at all times during the Term hereof, the sum of zero Dollars ($0.00),
the receipt of which is hereby acknowledged, as security for the payment by
Tenant of the Rent and all other sums herein agreed to be paid and for the
faithful performance of all the terms, conditions and covenants of this Lease.
If, at any time during the Term hereof, Tenant shall be in default in the
performance of any provisions of this Lease, Landlord shall have the right, but
shall not be obligated, to use said deposit, or so much thereof as necessary,
in payment of any Rent in default, reimbursement of any expense incurred by
Landlord, and in payment of any damages incurred by the Landlord by reason of
Tenant's default. In such event, Tenant shall, on written demand of Landlord,
forthwith remit to Landlord a sufficient amount in cash to restore said deposit
to its original amount. In the event said deposit has not been utilized as
aforesaid, said deposit, or as much thereof as has not been utilized for such
purposes, shall be refunded to Tenant, without interest, within sixty (60) days
after the termination of this Lease upon full performance of this Lease by
Tenant and vacation of the Premises by Tenant. Landlord shall have the right to
commingle said deposit with other funds of Landlord. Landlord may deliver the
funds deposited herein by Tenant to any purchaser of Landlord's interest in the
Premises in the event such interest is sold, and thereupon Landlord shall be
discharged from further liability with respect to such deposit. If the claims
of Landlord exceed the amount of said deposit, Tenant shall remain liable for
the balance of such claims. At Landlord's election, Landlord may have the
Security Deposit held by Landlord's manager in a separate security deposit
trust, trustee or escrow account established and maintained by such manager
with respect to certain security deposits of tenants within the Building.
Unless Tenant is so notified (i) Landlord will hold the Security Deposit and be
responsible for its return; and (ii) Tenant may request
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<PAGE> 3
return of the Security Deposit by giving Landlord written notice in accordance
with the provisions of the Lease and Landlord's manager, if any, agrees that in
the event of a dispute of the ownership of the Security Deposit, the manager
will not wrongfully withhold Landlord's true name and current mailing address
from Tenant. In the event such interest be sold, and thereupon, Landlord shall
be discharged from further liability with respect to such Security Deposit. If
the claims of Landlord exceed said Security Deposit, Tenant shall remain liable
for the balance of such claims.
5. ADDITIONAL RENT:
(a) The following terms shall have the following meanings
with respect to the provisions of this Paragraph 5:
(1) "Building Rentable Area" shall mean
approximately 76,285 square feet which is all the rentable space available for
lease in the Building. If there is a significant change in the aggregate
Building Rentable Area, of a permanent nature, as a result of an addition to
the Building, partial destruction thereof or similar circumstance, Landlord's
space planner or architect shall determine and make an appropriate adjustment
to the provisions herein. Unless otherwise provided herein, any statement of
square footage set forth in this Lease or that may have been used in
calculating Rent and/or Tenant's Pro Rata Share of Operating Expenses is an
approximation which Landlord and Tenant agree is reasonable, and the Rent and
Tenant's Pro Rata Share based thereon is not subject to revisions during the
Primary Lease Tenn whether or not the actual square footage is more or less.
(2) "Tenant's Pro Rata Share" shall mean a
fraction, the numerator of which is the rentable area of the Premises (i.e.
approximately 11,298 square feet) and the denominator of which is the Building
Rentable Area, and is equal to 14.81%.
(3) "Operating Expenses" shall mean:
A. All operating expenses of any kind or
nature which are necessary, ordinary or customarily incurred with respect to the
operation and maintenance of the Building as determined by Landlord and shall
include, but not be limited to:
(i) Costs of supplies, including
but not limited to the cost of "relamping" all standard Building lighting as
the same may be required from time to time.
(ii) Costs incurred in connection
with obtaining and providing energy for the Building, including but not limited
to costs of propane, butane, natural gas, steam, electricity, solar energy and
fuel oils, coal or any other energy sources as well as costs for heating,
ventilation, and air conditioning services ("HVAC")
(iii) Costs of water and sanitary and
storm drainage services.
(iv) Costs of janitorial and
security services, if any.
(v) Costs of general maintenance
and repairs, including costs under HVAC and other mechanical maintenance
contracts; and repairs and replacements of equipment used in connection with
the maintenance and repair work.
(vi) Costs of maintenance and
replacement of landscaping and sprinkler systems; seasonal/holiday decorations;
and costs of supplies, maintenance, repair, striping and repaving of parking
areas, common areas, plazas and other areas of the Building, including trash
and snow removal.
(vii) Insurance premiums, including
fire and all-risk and special form coverage, together with loss of rent
endorsement; the part of any claim required to be paid under the
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<PAGE> 4
deductible portion of any insurance policy carried by Landlord in connection
with the Building; commercial liability insurance; and any other insurance
carried by Landlord on the Building or any component parts thereof.
(viii) Labor costs, including wages
and other payments, costs to Landlord of workmen's compensation and disability
insurance, payroll taxes, welfare fringe benefits and all legal fees and other
costs or expenses incurred in resolving any labor disputes.
(ix) Professional building
management fees in an amount comparable to that charged for comparable
buildings in comparable projects in the Denver metropolitan area.
(x) Legal, accounting, inspection
and other consultation fees (including, without limitation, fees charged by
consultants retained by Landlord for services that are designed to produce a
reduction in Operating Expenses or reasonably to improve the operation,
maintenance or state of repair of the Building) incurred for the normal prudent
operation of the Building.
(xi) The costs of capital
improvements and structural repairs and replacements made in or to the Building
or the cost of any machinery or equipment installed in the Building in order to
conform to changes, in any applicable laws, ordinances, rules, regulations or
orders of any governmental or quasi-governmental authority having jurisdiction
over the Building (herein, "Required Capital Improvement"); the costs of any
capital improvements and structural repairs and replacements designed primarily
to reduce Operating Expenses (herein, "Cost Savings Improvements"); and a
reasonable annual reserve (not to exceed 55 cents ($.55) per rentable square
foot for all other capital improvements and structural repairs and replacements
reasonably necessary to permit Landlord to maintain the Buildings as an office
building. The expenditures for Required Capital Improvements and Cost Savings
Improvements shall be amortized at a market rate of return over the useful life
of such capital improvement or structural repair or replacement (as reasonably
determined by Landlord).
(xii) All real and personal property
taxes and assessments levied against the Building by any governmental or
quasi-governmental authority, including any taxes, assessments, surcharges, or
service or other fees of a nature not presently in effect which shall hereafter
be levied on the Building as a result of the use, ownership or operation of the
Building or for any other reason, whether in lieu of or in addition to any
current real estate taxes and assessments; provided, however, that any taxes
which shall be levied on the rentals of the Building shall be determined as if
the Building were Landlord's only property and provided further, that in no
event shall the term "taxes and assessments", as used herein, include any
federal, state or local income taxes levied or assessed on Landlord, unless
such taxes are a specific substitute for real property taxes. Such term shall,
however, include gross taxes on rentals and expenses incurred by Landlord for
tax consultants and in contesting the amount or validity of any such taxes or
assessments. "Assessments" shall include any and all so-called special
assessments, license taxes, business license fees, business license taxes,
commercial rental taxes, levies, charges or taxes imposed by any authority
having the direct power to tax, including any city, county, state or federal
government, or any school, agricultural, lighting, water, drainage or other
improvement or special district thereof, against the Premises, the Building, or
against any legal or equitable interest of Landlord therein (all of the
foregoing taxes and assessments are collectively referred to herein as
"Taxes");
Tenant shall be liable for and shall pay at least ten (10) days before
delinquency and Tenant hereby agrees to indemnify and hold Landlord harmless
from and against any liability in connection with, all taxes levied against any
personal property, fixtures, machinery, equipment, apparatus, systems and
appurtenances placed by or on behalf of Tenant in or about or utilized by Tenant
in, upon or in connection with the Premises. Tenant shall pay to Landlord, as
Additional Rent, any excise, sales, privilege or other tax, assessment or other
charge (other than income or franchise taxes) imposed, assessed or levied by any
governmental or quasi-governmental authority or agency upon Landlord on account
of this Lease, the Rent or other payments made by Tenant hereunder, any other
benefit received by Landlord hereunder, Landlord's business as a lessor
hereunder, or other in respect of or as a result of the agreement or
relationship of Landlord and Tenant hereunder.
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<PAGE> 5
(4) If Landlord selects an accrual accounting
basis for calculating Operating Expenses, Operating Expenses shall be deemed to
have been paid when such expenses have accrued in accordance with generally
accepted accounting principles.
(5) Operating Expenses shall expressly exclude
Landlord's income taxes; leasing commissions, advertising and promotional
expenses; interest on debt or amortization payments on any mortgages or deeds
of trust; costs of repairs or other work occasioned by fire, windstorm or other
casualty to the extent of insurance proceeds received; and depreciation on the
Building.
(b) It is hereby agreed that Tenant shall pay to Landlord
as Additional Rent during each calendar year during the Term hereof Tenant's
Pro Rata Share of Operating Expenses in excess of the Base Year Operating
Expenses. The Base Year Operating Expenses as used herein shall mean the
actual Operating Expenses for the Building for the calendar year 1998. An
estimated amount of such Operating Expenses excess shall be payable monthly on
the same date and at the same place Base Rent is payable, with an adjustment to
be made between the parties at a later date as hereinafter provided.
(1) Landlord shall deliver to Tenant, as soon as
practicable following the end of any calendar year of the Lease Term, an
estimate of the increases, if any, in Operating Expenses in excess of the Base
Year for the new calendar year (the "Budget Sheet"). Until receipt of the Budget
Sheet, Tenant shall continue to pay its monthly Tenant's Pro Rata Share of
increases, if any, in Operating Expenses based upon the estimate for the
preceding calendar year. To the extent that the Budget Sheet reflects an
estimate of Tenant's Pro Rata Share of increases in Operating Expenses for the
new calendar year greater than the amount actually paid to the date of receipt
of the Budget Sheet for the new calendar year, Tenant shall pay such additional
amount for each month of the new calendar year elapsed before receipt of such
Budget Sheet to Landlord within thirty (30) days after receipt of the Budget
Sheet. Upon receipt of the Budget Sheet, Tenant shall thereafter pay the amount
of its monthly Tenant's Pro Rata Share of increases, if any, in Operating
Expenses as set forth in the Budget Sheet. As soon as practicable following the
end of any calendar year, usually by May 1st, Landlord shall submit to Tenant a
statement in reasonable detail describing the computations of the Operating
Expenses, setting forth the exact amount of Tenant's Pro Rata Share of
increases, if any, in Operating Expenses for the calendar year just completed
(the "Statement"), and the difference, if any, between the actual Tenant's Pro
Rata Share of increases in Operating Expenses for the calendar year just
completed and the estimated amount of Tenant's Pro Rata Share of increases in
Operating Expenses paid by Tenant to Landlord. Notwithstanding the foregoing,
Landlord's failure to deliver the Statement to Tenant on or before May 1st shall
in no way serve as a waiver of Landlord's rights under this Paragraph. To the
extent that the actual Tenant's Pro Rata Share of increases in Operating
Expenses for the period covered by the Statement is higher than the estimated
Tenant's Pro Rata Share of increases in Operating Expenses which Tenant
previously paid during the calendar year just completed, Tenant shall pay to
Landlord such balance within thirty (30) days following receipt of the Statement
from Landlord. To the extent that the actual Tenant's Pro Rata Share of
increases, if any, in Operating Expenses for the period covered by the Statement
is less than the estimated Tenant's Pro Rata Share of increases, if any, in
Operating Expenses which Tenant previously paid during the calendar year just
completed, Landlord shall credit the excess against any sums then owing or next
becoming due from Tenant under the Lease.
(c) If the Lease Term hereunder covers a period of less
than a full calendar year during the first or last calendar years of the Term
hereof, Tenant's Pro Rata Share of increases in Operating Expenses for such
partial year shall be adjusted accordingly to reflect the number of months in
such year during which Tenant leased the Premises.
(d) After written notice to Landlord, Tenant shall have the
right at its own expense and at a reasonable time during Landlord's regular
business hours within thirty (30) days after receipt of the Statement to engage
a certified public accountant ("Tenant's Accountant") to audit Landlord's books
relevant to the disputed amount of Landlord's Statement of Operating Expenses
under this Paragraph 5. In the event Tenant does not audit Landlord's books and
deliver the results thereof to Landlord within said 30-day period, the terms
and amounts set forth in the Statement shall be deemed conclusive and final. In
the event Tenant's examination reveals that an error has been made in
Landlord's determination of Tenant's Pro Rata Share of increases in Operating
Expenses and Landlord agrees with such determination, then the amount of such
adjustment shall be
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<PAGE> 6
payable by Landlord or Tenant, to the other party as the case may be. In the
event Tenant's examination reveals an error has been made in Landlord's
determination of Tenant's Pro Rata Share of increases in Operating Expenses,
and Landlord disagrees with the results thereof, Landlord's accountant and
Tenant's Accountant shall endeavor to agree on the matter. In the event
Landlord's accountant and Tenant's Accountant are unable to reconcile their
audits within thirty (30) days after Tenant's audit, both accountants shall
mutually agree upon a third accountant, whose determination of Tenant's Pro
Rata Share of increases in Operating Expenses shall be conclusive. In the event
the amount of error by Landlord is determined to be ten percent (10%) or more
of the total Operating Expenses set forth in Landlord's Statement, the
reasonable costs of the additional two audits (excluding any charges billed on
a contingency fee basis) made pursuant to this subparagraph shall be paid by
Landlord. In the event the amount of error by Landlord is determined to be less
than ten percent (10%) of the total Operating Expenses set forth in Landlord's
Statement, the reasonable costs of the two audits made pursuant to this
subparagraph shall be paid by Tenant.
(e) Landlord's failure during the Lease Term to prepare
and deliver any Statements or Budget Sheet, or Landlord's failure to make a
demand under this Paragraph or under any other provision of this Lease shall
not in any way be deemed to be a waiver of, or cause Landlord to forfeit or
surrender its rights to collect any items of Additional Rent which may have
become due pursuant to this Paragraph during the Term of this Lease. Tenant's
liability for all Additional Rent due under this Paragraph 5 shall survive the
expiration or earlier termination of this Lease.
(f) Notwithstanding anything contained herein to the
contrary, if any lease entered into by Landlord with any tenant in the Building
provides for a separate basis of computation for any Operating Expense with
respect to its leased premises, then, to the extent that Landlord determines
that an adjustment should be made in making the computations herein provided
for, Landlord shall be permitted to modify the computation of Base Operating
Expenses, Rentable Area, and Operating Expenses for a particular calendar year,
in order to eliminate or otherwise modify any such expenses which are paid for
in whole or in part by such tenant. Furthermore, in making any computations
contemplated hereby, Landlord shall also be permitted to make such adjustments
and modifications to the provisions of this Paragraph 5 as may be reasonably
necessary to achieve the intention of the parties hereto.
(g) In the event the Building Rentable Area is not fully
occupied during any particular calendar year, Landlord shall adjust those
Operating Expenses which are affected by the occupancy rates for the particular
calendar year, or portion thereof, as the case may be, to reflect an occupancy
of not less than ninety-five percent (95%) of all such Building Rentable Area.
6. CHARACTER OF OCCUPANCY:
(a) The Premises are to be occupied for administrative
and general office use and for no other purpose without the prior written
consent of Landlord.
(b) Tenant shall not suffer nor permit the Premises nor any
part thereof to be used in any manner, nor anything to be done therein, nor
suffer or permit anything to be brought into or kept therein, which would in
any way (i) make void or voidable any fire or liability insurance policy then
in force with respect to the Building, (ii) make unobtainable from reputable
insurance companies authorized to do business in Colorado any fire insurance
with extended coverage, or liability, boiler or other insurance required to be
furnished by Landlord under the terms of any lease or mortgage to which this
Lease is subordinate at standard rates, (iii) cause or in Landlord's reasonable
opinion be likely to cause physical damage to the Building or any part thereof,
(iv) constitute a public or private nuisance, (v) impair, in the opinion of
Landlord, the appearance, character or reputation of the Building, (vi)
discharge objectionable fumes, vapors or odors into the air conditioning system
or into any flues or vents not designed to receive them or otherwise in such
manner as may unreasonably offend other occupants of the Building, (vii) impair
or interfere with any of the Building services or impair or interfere with or
tend to impair or interfere with the use of any of the other areas of the
Building by, or occasion discomfort, or annoyance to Landlord or any of the
other tenants or occupants of the Building, any such impairment or interference
to be based upon the judgment of Landlord, (viii) violate any permit,
certificate of
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occupancy, statute, ordinance or other requirement of law applicable to the
Building or the Premise, or (ix) commit or permit to be committed physical
damage, abuse or destructive use of the Premises.
(c) Tenant, at its sole cost, shall comply with all laws,
orders, statutes, ordinances or governmental rules or regulations of federal,
state, county, municipal authorities, quasi-governmental, and utility providers
now in force or which may hereafter during Tenant's Lease Term be enacted or
promulgated (the "Applicable Laws"), which impose a duty on Landlord or Tenant
with respect to the Premises, or the use or occupation thereof. Notwithstanding
the foregoing and subject to reimbursement as set forth in Section 5 above,
Landlord will be responsible for compliance of the Common Areas of the Building
with Applicable Laws, including, the Americans With Disabilities Act; provided,
however, Landlord shall have no obligation for compliance if such compliance is
a result of Tenants use or occupancy of its Premises.
7. SERVICES AND UTILITIES:
(a) Subject to the provisions of subparagraph (b) below,
Landlord agrees, and in accordance with standards from time to time prevailing
for comparable buildings in the Denver metropolitan area, to furnish to the
Building in which the Premises are located: (i) electric current to the Premises
for electricity service for lighting and light office machines to the extent of
Tenant's Standard Electrical Capacity ("Tenant's Standard Electrical Capacity"
as used herein shall mean and refer to electrical usage for standard lighting
and ordinary office usage including desktop office machines based upon a total
of five (5) watts per rentable square foot of the Premises); (ii) to famish
running water at those points of supply for general use of tenants of the
Building; (iii) to famish during Ordinary Business Hours (as described on
Exhibit D hereto), such heated or cooled air to the Premises and Common Areas as
may, in the judgment of Landlord, be reasonably required for the comfortable use
and occupancy of the Premises and/or Building, provided that the recommendation
of Landlord's engineer regarding occupancy and use of the Premises are complied
with by Tenant and, with respect to cooled air, provided the same is used only
for standard office use; (iv) passenger elevators (at least one elevator shall
be available at all times, except in the case of emergencies or repair); (v) to
provide janitorial services for the Premises (including such window washing of
the outside or exterior windows as may, in the judgment of Landlord, be
reasonably required), such janitorial services shall be provided after Ordinary
Business Hours on Monday through Friday only, except Legal Holidays; (vi) snow
and ice removal for parking areas and building entries to the Building as may,
in the judgment of Landlord, be reasonably required for safe access to the
Building, and Common Areas. Landlord's cost of providing all of the foregoing
services shall be expenses included within the term Operating Expenses as used
in Paragraph 5 of this Lease. If, at the request of Tenant, Landlord furnishes
Tenant with services or utilities beyond those described above in this
subparagraph (a), Tenant shall pay Landlord as Additional Rent for such
additional services, at charges established by Landlord from time to time,
within ten days after receipt of a statement from Landlord for such services.
Landlord shall have full authority and control over all Building systems.
(b) Tenant agrees that Landlord shall not be liable for
failure to supply any required services during any period when Landlord uses
reasonable diligence to supply such services or during any period Landlord is
required to reduce or curtail such services pursuant to any applicable laws,
rules or regulations or at any time as it may be necessary by reason of
accident, repairs, alterations, improvements, acts of God, or any other
happening beyond control of Landlord.
(c) "Legal Holidays" as used herein shall mean national
holidays on which the U.S. Postal Service is closed.
(d) Landlord shall have the right at any time and from
time to time during the Lease Term to contract for utility services from any
company providing such services as Landlord may select in its sole opinion.
Such selection right includes the right to control or limit access to any
companies providing electricity service, telephone service or any other service
utilized by the Building systems. Additionally, Landlord shall have sole
control of the central service points from which Tenant's electrical or
telecommunication services, including computers, are to be attached. Tenant
shall be solely responsible for the costs of all such connections related to
Tenant's telephone or telecommunication services.
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8. QUIET ENJOYMENT: Subject to the provisions of this Lease,
Landlord covenants that Tenant on paying the Rent and performing the covenants
of this Lease on its part to be performed shall and may peacefully and quietly
have, hold and enjoy the Premises for the Term of this Lease. Landlord shall
not be responsible for the acts or omissions of any other tenant or third party
which may interfere with Tenant's use and enjoyment of the Premises. In the
event of any transfer or transfers of Landlord's interest in the Premises or in
the Real Property of which the Premises are a part, other than a transfer for
security purposes only, the transferor shall be automatically relieved of any
and all obligations and liabilities on the part of Landlord accruing from and
after the date of such transfer.
9. MAINTENANCE AND REPAIRS:
(a) Subject to reimbursement in Paragraph 5 above,
Landlord shall (i) make repairs to HVAC mechanical, life safety and electrical
systems in the Premises to the extent such systems are Building Standard as are
deemed necessary by Landlord for normal maintenance operations of the Building;
and (ii) provide upkeep, maintenance and repairs to all Common Areas. Except as
provided in this paragraph, or otherwise expressly required in this Lease,
Landlord is not required to make improvements or repairs to the Premises during
the Term. The term "Building Standard" as used in this Lease shall mean those
Tenant finish items re-stocked or in place in the Premises which Landlord
normally provides to Tenant (as examples, ceiling grid, sprinklers, HVAC and
similar items).
(b) Tenant, at Tenant's sole cost and expense, shall
maintain the Premises, in good order, condition and repair reasonable wear and
tear excepted including the interior surfaces of the ceilings, interior walls
and floors, all doors, door closure devices, door frames and locks, plumbing
systems and any non-Building Standard electrical systems or fixtures and/or
improvements.
10. ALTERATIONS AND ADDITIONS BY TENANT:
(a) Tenant shall make no alterations, additions or
improvements to the Premises or any part thereof without obtaining the prior
written consent of Landlord, which consent shall not be unreasonably withheld,
delayed or conditioned. Landlord may impose as a condition to the consent such
requirements as Landlord may deem necessary in its sole discretion including,
without limitation, the manner in which the work is done, a right of approval
of the contractors by whom the work is to be performed, and the time that it is
performed. Such alterations, additions or improvements shall be performed in
compliance with all applicable laws and requirements of public authorities, and
shall be performed in a good and workmanlike manner using new materials and
equipment at least equal in quality to the original installation in the
Premises. If Landlord authorizes persons requested by Tenant to perform work in
the Premises, prior to commencement of any such work, Tenant shall deliver to
Landlord certificates issued by insurance companies qualified to do business in
the State of Colorado evidencing that all contractors and subcontractors
engaged by Tenant to perform such work have in fall force and effect workers'
compensation, public liability insurance and property damage insurance all in
amounts, with companies and in form satisfactory to Landlord. All such
policies, excluding workers' compensation, shall name Landlord and Landlord's
lender as an additional named insured. Alterations, additions and improvements
shall be performed in a manner that will not unreasonably interfere, delay or
impose any additional expense upon Landlord in the maintenance or operation of
the Building or upon other tenant's use of their premises. Tenant shall comply
with all requirements of Landlord's insurance carriers and shall obtain all
necessary governmental permits and certificates required for any such work.
(b) All alterations, improvements and additions to the
Premises, including, by way of illustration but not by limitation, all
counters, screens, grilles, special cabinetry work, partitions, paneling,
carpeting, drapes or other window coverings and light fixtures, shall be deemed
a part of the real estate and the property of Landlord and shall remain upon
and be surrendered with the Premises as a part thereof without molestation,
disturbance or injury at the end of the Lease Term, whether by lapse of time or
otherwise, unless Landlord, by notice given to Tenant no later than fifteen
(15) days prior to the end of the Lease Term, shall elect to have Tenant remove
all or any of such alterations, improvements or additions (excluding
non-movable office
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walls), and in such event, Tenant shall promptly remove, at its sole cost and
expense, such alterations, improvements and additions and restore the Premises
to the condition in which the Premises were prior to the making of the same,
reasonable wear and tear excepted. All movable partitions, machines and
equipment which are installed in the Premises by or for Tenant, without expense
to Landlord, that can be removed without structural damage to or defacement of
the Building or the Premises, and all furniture, furnishings and other articles
of personal property owned by Tenant and located in the Premises (all of which
are herein called "Tenant's Property") shall be and remain the property of
Tenant. If any of Tenant's Property is removed, however, Tenant shall repair or
pay the cost of repairing any damage to the Building or the Premises resulting
from such removal.
11. ENTRY BY LANDLORD:
(a) Landlord and its agents shall have the right to enter
the Premises at all reasonable times and following reasonable notice which may
be oral for the purpose of examining or inspecting the same, to supply any
services to be provided by Landlord hereunder, to show the same to prospective
purchasers and prospective tenants of the Building, and to make such
alterations, repairs, improvements or additions to the Premises or to the
Building as Landlord may deem necessary or desirable. Landlord and its agent
may enter the Premises at all times for the purpose of responding to an actual
or apparent emergency. Landlord shall retain a master key to the Premises. Any
such entry shall not constitute an eviction or entitle Tenant to abatement of
Rent. All entries by Landlord and its agents shall cause the least practicable
interference with Tenant's business.
(b) Tenant shall be entitled to two (2) sets of keys to
the Premises. In the event Tenant needs any additional keys, such keys must be
requested from Landlord. Tenant shall pay to Landlord the actual cost of making
such additional keys.
12. MECHANIC'S LIENS: Tenant shall pay or cause to be paid all
costs for work done by or on behalf of Tenant or caused to be done by or on
behalf of Tenant on the Premises of a character which will or may result in
liens against Landlord's interest in the Premises or Building and Tenant will
keep the Premises and Building free and clear of all mechanic's liens and other
liens on account of work done for or on behalf of Tenant or persons claiming
under Tenant. Tenant agrees to indemnify, defend and save Landlord and
Landlord's lender harmless of and from all liability, loss, damage, costs or
expenses, including attorneys' fees on account of any claims of any nature
whatsoever including claims or liens of laborers or materialmen or others for
work performed for or materials or supplies furnished to Tenant or persons
claiming under Tenant. Tenant shall give Landlord at least ten (10) days
written notice of the expected date of commencement of any work relating to
alterations in the Premises to allow Landlord an opportunity to post the
Premises with a notice of nonliability. If Tenant desires to contest any claim
of lien, Tenant shall furnish to Landlord adequate security of at least one
hundred and fifty percent (150%) of the amount of the claim plus estimated
costs and interest, or, at Tenant's option, file a bond with the appropriate
court and obtain a release of the lien pursuant to Colorado law. If Tenant
shall fail to pay any charge for which such a lien or suit to foreclose such a
lien has been recorded or filed and shall not have caused the lien to be
released as aforesaid, Landlord may (but without being required to do so) pay
such lien or claim and any costs associated therewith, and the amount so paid,
together with reasonable attorneys' fees incurred in connection therewith,
shall be immediately due from Tenant to Landlord as Additional Rent.
13. DAMAGE TO PROPERTY, INJURY TO PERSONS:
(a) Tenant, as a material part of the consideration to be
rendered to Landlord under this Lease, hereby waives all claims of liability
that Tenant or Tenant's legal representatives, successors or assigns may have
against Landlord, and Tenant hereby indemnifies and agrees to hold Landlord
harmless from any and all claims of liability for any injury or damage to any
person or property whatsoever: (1) occurring in, on or about the Premises or any
part thereof, and (2) occurring in, on or about the Building, when such injury
or damage is caused in part or in whole by the act, neglect, fault or omission
of Tenant, its agents, contractors or employees or where such injuries are the
result of the violation of the provisions of this Lease by any of such persons.
Tenant further agrees to indemnify and to hold Landlord harmless from and
against any and all claims
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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 arising from
any act or negligence of Tenant, or any of its agents, contractors or
employees. Such indemnities shall include by way of example, but not
limitation, all costs, reasonable attorneys' fees, expenses and liabilities
incurred in or about any such claim, action or proceeding.
(b) Landlord shall not be liable to Tenant for any damage
by or from any act or negligence of any co-tenant or other occupant of the
Building, or by any owner or occupant of adjoining or contiguous property.
Landlord shall not be liable for any injury or damage to persons or property
resulting in whole or in part from the criminal activities of others. To the
extent not covered by an "all risk" insurance policy, Tenant agrees to pay for
all damage to the Building, as well as all damage to persons or property of
other tenants or occupants thereof, caused by the misuse, neglect, act,
omission or negligence of Tenant, its agents or employees.
(c) Neither Landlord nor its agents or employees shall be
liable for any loss of or damage to property occurring by theft or otherwise,
nor for 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 from the pipes, appliances or plumbing
works therein or from the roof, street or subsurface or from any other place or
resulting from dampness, or any other cause whatsoever; provided, however,
nothing contained herein shall be construed to relieve Landlord from liability
for any personal injury resulting from its negligence. The keeping or storing
of all Tenant's property in the Premises or in the Building shall be at the
sole risk of Tenant. Neither Landlord nor its agents or employees shall be
liable for changes in or to exterior light or the view from the Premises, nor
shall Landlord be liable to Tenant or its officers, employees, guests or
invitees for any damages arising from any latent defect in the Premises or in
the Building. Tenant shall give prompt notice to Landlord in case of fire or
accidents in or about the Premises or the Building or of defects therein or in
the fixtures or equipment located therein.
(d) In case any claim, demand, action or proceeding is
made or brought against Landlord, its agents or employees, by reason of any
obligation on Tenant's part to be performed under the terms of this Lease, or
arising from any act or negligence of Tenant, its agents or employees, or which
gives rise to Tenant's obligation to indemnify Landlord, Tenant shall be
responsible for all costs and expenses, including but not limited to reasonable
attorneys' fees incurred in defending or prosecution of the same, as
applicable.
14. INSURANCE:
(a) Subject to reimbursement as described in Paragraph 5
above, Landlord agrees to carry and maintain the following insurance during the
Term of this Lease and any extension hereof: "all risk" coverage and commercial
general liability insurance against claims for personal injury, including death
and property damage in or about the Premises and the Building to the extent of
Building Standard tenant finish (excluding Tenant's Property), including loss
of rental insurance on such terms and conditions, in such amounts and from such
companies as Landlord deems appropriate from time to time.
(b) Tenant shall procure and maintain at its own cost at
all times during the term of this Lease and any extensions hereof, hazard, "all
risk" coverage on Tenant's property and the contents of the Premises,
commercial general liability insurance, including coverage for bodily injury,
property damage, personal injury (employee and contractual liability exclusions
deleted), products and completed operations, contractual liability, owner's
protective liability, host liquor legal liability and broad form property
damage with the following limits of liability: One Million Dollars
($1,000,000.00) each occurrence combined single limit for bodily injury,
property damage and personal injury; One Million Dollars ($1,000,000.00)
aggregate for bodily injury and property damage for products and completed
operations. All such insurance shall be procured from a company or companies
with a Best's Key Rating of "A" or better authorized to do business in
Colorado, and shall be otherwise satisfactory to Landlord. All such policies
shall name Landlord as an additional insured, and shall provide that the same
may not be canceled or altered except upon thirty (30) days prior written
notice to Landlord. All insurance maintained by Tenant shall be primary to any
insurance provided by Landlord. If Tenant obtains any general liability
insurance policy on a claims-made basis, Tenant shall provide continuous
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liability coverage for claims arising during the entire Term of this Lease,
regardless of when such claims are made, either by obtaining an endorsement
providing for an unlimited extended reporting period in the event such policy
is canceled or not renewed for any reason whatsoever or by obtaining new
coverage with a retroactive date the same as or earlier than the expiration
date of the canceled or expired policy. Tenant shall provide certificate(s) of
such insurance to Landlord upon commencement of the Lease Term and at least
thirty (30) days prior to any annual renewal date thereof and upon request from
time to time and such certificate(s) shall disclose that such insurance names
Landlord as an additional insured, in addition to the other requirements set
forth herein. The limits of such insurance shall not, under any circumstances,
limit the liability of Tenant hereunder.
(c) Each party hereby releases the other party with
respect to any claim (including a claim for negligence) which it might
otherwise have against the other party for loss, damage or destruction with
respect to its property (including the Building, the Premises and rental value
or business interruption) occurring during the Term of this Lease to the extent
to which it is capable of being insured under an "all risk" form insurance
policy or policies whether carried or not. Each party shall apply to its
insurer to obtain said waivers and obtain any special endorsements, if they are
required by its insurer, to evidence compliance with the aforementioned waiver
and shall bear the costs therefore, if any.
(d) Any Building employee to whom property shall be
entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant's
agent with respect to such property and neither Landlord, the Building manager,
if any, nor their respective agents shall be liable for any damage to the
property of Tenant or others entrusted to employees of the Building, nor for
the loss of or damage to any property of Tenant by theft or otherwise and
Tenant shall indemnify Landlord of and from any loss or damages, costs or
actions Landlord may suffer or incur as a result of such loss or damage to
Property.
15. DAMAGE OR DESTRUCTION TO BUILDING:
(a) In the event that the Premises or the Building are
damaged by fire or other insured casualty and the insurance proceeds have been
made available therefor by the holder or holders of any mortgages or deeds of
trust covering the Building, the damage shall be repaired by and at the expense
of Landlord to the extent of Building Standard tenant finish and Landlord's
Work as defined in EXHIBIT C, if any, and to the extent such insurance proceeds
available therefor, provided such repairs and restoration can, in Landlord's
reasonable opinion, be made within one hundred eighty (180) days after the
occurrence of such damage without the payment of overtime or other premiums.
Until such repairs and restoration are completed, the Base Rent shall be abated
in proportion to the part of the Premises which is unusable by Tenant in the
conduct of its business, as may be reasonably determined by Landlord, (but
there shall be no abatement of Base Rent by reason of any portion of the
Premises being unusable for a period equal to one day or less). Landlord agrees
to notify Tenant within sixty (60) days after such casualty if it estimates
that it will be unable to repair and restore the Premises within said one
hundred eighty (180) day period. Such notice shall set forth the approximate
length of time Landlord estimates will be required to complete such repairs and
restoration. Notwithstanding anything to the contrary contained herein, if
Landlord estimates it cannot make such repairs and restoration within said one
hundred eighty (180) day period, then Landlord or Tenant may, by written notice
to the other, cancel this Lease, provided such notice is given to the other
within fifteen (15) days after Landlord notifies Tenant of the estimated time
for completion of such repairs and restoration. Notwithstanding the preceding
sentence, Tenant may not cancel this Lease as hereinabove stated if the damage
to the Premises or the Building is in whole or in part the result of the act,
omission, fault or negligence of Tenant, its agents or contractors, employees.
If the Lease is so canceled, Tenant shall pay Rent, properly apportioned up to
the date of such casualty, this Lease shall terminate from the date of said
written notice of cancellation and both parties hereto shall be released and
discharged from all further obligations hereunder (except those obligations
which expressly survive termination of the Lease Term). Except as provided in
this Paragraph 15, there shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's business or
property arising from the making of any such repairs, alterations or
improvements in or to the Building, Premises or fixtures, appurtenances and
equipment. Tenant understands that Landlord will not carry insurance of any
kind on Tenant's Property, including furniture and furnishings, or on any
fixtures or equipment
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removable by Tenant under the provisions of this Lease, or any improvement
installed in the Premises by or on behalf of Tenant, and that Landlord shall
not be obligated to repair any damage thereto or replace the same.
(b) In case the Building throughout shall be so injured
or damaged, whether by fire or otherwise (though the Premises may not be
affected, or if affected, can be repaired within said one hundred eighty (180)
days that Landlord, within sixty (60) days after the happening of such injury,
shall decide not to reconstruct or rebuild the Building, then notwithstanding
anything contained herein to the contrary, upon notice in writing to that
effect given by Landlord to Tenant within said sixty (60) days, Tenant shall
pay the Rent, properly apportioned up to date of such casualty, this Lease
shall terminate from the date of delivery of said written notice, and both
parties hereto shall be released and discharged from all further obligations
hereunder (except those obligations which expressly survive termination of the
Lease Term). A total destruction of the Building shall automatically terminate
this Lease.
16. CONDEMNATION:
(a) If twenty-five percent (25%) or more of the Premises
or so much thereof as to render the balance unusable by Tenant for the proper
conduct of its business shall be taken under power of eminent domain or
transferred under threat thereof, then this Lease, at the option of either
Landlord or Tenant exercised by either party giving notice to the other of such
election within thirty (30) days after such conveyance or taking possession,
whichever is earlier, shall forthwith cease and terminate and the Rent shall be
duly apportioned as of the date of such taking or conveyance. Tenant thereupon
shall surrender the Premises and all interest therein to Landlord, and Landlord
may reenter and take possession of the Premises. Landlord shall receive the
entire award or consideration for the portion of the Building so taken and no
award for any partial or entire taking shall be apportioned. Notwithstanding
the foregoing, Tenant shall be entitled to seek, directly from the condemning
authority, an award for its removable trade fixtures, equipment and personal
property and relocation expenses, if any, to the extent Landlord's award is not
diminished. In the event of a partial taking which does not result in a
termination of this Lease, Base Rent shall be reduced in proportion to the
reduction in the size of the Premises so taken and this Lease shall be modified
accordingly. Promptly after obtaining knowledge thereof, Landlord or Tenant, as
the case may be, shall notify the other of any pending or threatened
condemnation or taking affecting the Premises or the Building.
(b) If all or any portion of the Premises shall be
condemned or taken for governmental occupancy for a limited period, this Lease
shall not terminate and Landlord shall be entitled to receive the entire amount
of any such award or payment thereof as damages, rent or otherwise. Tenant
shall be entitled to receive an abatement of Base Rent in proportion to the
reduction in the size of the Premises so taken.
17. ASSIGNMENT AND SUBLETTING:
(a) Except as hereinafter specifically authorized, Tenant
shall not assign this Lease or any interest therein, or sublet all or any part
of the Premises, or permit any part of the Premises to be used or occupied by
any persons other than Tenant and its employees, by operation of law or
otherwise, nor shall Tenant permit any part of the Premises to be used or
occupied by any licensee or concessionaire or permit any persons other than
Tenant, its employees and invitees, to be upon the Premises.
(b) Tenant shall not sublet any part of the Premises, nor
assign this Lease or any interest therein without the written consent of the
Landlord first being obtained, which said consent shall not be unreasonably
withheld or delayed; provided that: (i) Tenant has complied with the provisions
of subparagraph (c) below and Landlord has declined to exercise its rights
thereunder; (ii) the proposed subtenant or assignee is engaged in a business and
the Premises will be used in a manner which is in keeping with the then
standards of the Building; (iii) the proposed subtenant or assignee is a
responsible party of reasonable financial worth in light of the responsibilities
involved and Tenant shall have provided Landlord with evidence thereof; and (iv)
Tenant is not in default hereunder at the time it makes its request for such
consent. Any assignment of the Lease or subletting of the Premises by the
Tenant, whether by consent of the Landlord or without the consent of the
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Landlord (which would be in breach of the Lease) shall not relieve Tenant of
its obligations hereunder to Landlord, and Tenant shall be primarily liable to
Landlord for the performance of Tenant's obligations hereunder, even after such
subletting or assignment. In the event there is a default in the performance of
the terms of the Lease after an assignment or subletting of the Premises to
another party by Tenant, Landlord shall be entitled to collect all sums due to
Landlord under the Lease from Tenant, assignee, subtenant, or occupant, or any
one, combination of, or all of them, and to apply the net amount collected to
the sums due hereinunder, and collect the remainder of the sums due and owing
hereinunder from Tenant. No assignment, subletting, or occupancy of the
Premises or consent thereto by Landlord shall be deemed a waiver of the
Landlord's right to hold Tenant responsible for the complete performance by
Tenant of the covenants on the part of Tenant contained herein. No collection
of monies due from any assignee, subtenant, or occupant other than Tenant,
shall be deemed a waiver of the Landlord's rights, to hold Tenant primarily
responsible for the performance by Tenant of the covenants on the part of
Tenant contained in the Lease, nor shall the same constitute a release of the
Tenant from performance of the same. Consent by Landlord to an assignment or
subletting shall not in anyway relieve or release Tenant from obtaining the
express consent in writing of Landlord to any further assignment or subletting.
(c) Notwithstanding anything contained above to the
contrary, in the event Tenant requests Landlord's consent to sublet twenty-five
percent (25%) or more the Premises or to assign twenty-five percent (25%) or
more of its interest in this Lease, Landlord shall have a right to: (i) consent
to such sublease or assignment in accordance with the criteria set forth
herein; (ii) refuse to grant such consent in accordance with the criteria set
forth herein; or (iii) refuse to grant such consent and terminate this Lease as
to the portion of the Premises with respect to which such consent was
requested; provided, however, if Landlord refuses to grant such consent and
elects to terminate the Lease as to such portion of the Premises, Tenant shall
have the right within fifteen (15) days after notice of Landlord's exercise of
its right to terminate to withdraw Tenant's request for such consent and remain
in possession of the Premises under the terms and conditions of this Lease. In
the event the Lease is terminated as set forth herein, such termination shall
be effective as of the date set forth in a written notice from Landlord to
Tenant, which date shall in no event be more than thirty (30) days following
such notice.
(d) If in the event Tenant desires to sublease all or a
portion of the Premises or to assign the Lease, in whole or in part, Tenant
shall notify Landlord not less than thirty (30) days prior to the date Tenant
desires to sublease such portion of the demised Premises or assign the Lease
("Tenant's Notice"). Tenant's Notice shall set forth the description of the
portion of the Premises to be so sublet or assigned and the conditions on which
Tenant desires to sublet the Premises or assign the Lease. Landlord shall have
ten (10) days following receipt of Tenant's Notice within which to elect to
terminate the Lease as described above or notify Tenant of Landlord's consent or
denial of consent of such sublease or assignment.
(e) If Tenant collects any Rent or other amounts from a
subtenant or assignee in excess of the Base Rent and Tenant's Pro Rata Share of
increases in Operating Expenses, Tenant shall pay the Landlord as and when
Tenant receives the same, all such excess amounts received by Tenant less
amounts actually paid by Tenant for improvements, brokers' fees, or advertising
expenses related to procurement of a subtenant.
(f) A sale by Tenant of all or substantially all of its
assets or all or substantially all of its stock if Tenant is a publicly traded
corporation, a merger of Tenant with another corporation, the transfer of
twenty-five percent (25%) or more of the stock in a corporate tenant whose
stock is not publicly traded, or a transfer of twenty-five percent (25%) or
more of the beneficial ownership interest in a tenant which is a partnership or
limited liability company, shall constitute an assignment hereunder. Tenant
shall be allowed without Landlord's consent to assign the Lease or sublet the
Premises to a related entity (i.e. a subsidiary, a parent or affiliate).
(g) All documents utilized by Tenant to evidence any
subletting or assignment to which Landlord has consented shall be subject to
prior approval by Landlord or its counsel. Tenant shall pay to Landlord all of
Landlord's costs and expenses, including reasonable attorneys' fees incurred in
determining whether or not to consent to any requested sublease or assignment
and in reviewing any documentation related
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thereto, which amount shall not be less than Five Hundred Dollars ($500.00). In
the event Landlord does not approve such sublease or assignment due to
rejection by Landlord's attorney, then, in such event, Tenant shall not be
responsible for Landlord's costs of attorneys' fees.
18. ESTOPPEL CERTIFICATE: Tenant and Landlord further agree at any
time and from time to time on or before five (5) days after written request by
the other party, to execute, acknowledge and deliver to the other an estoppel
certificate certifying (to the extent it believes the same to be true) that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified, and
stating the modifications), and such other matters as may be reasonably required
by such party, Landlord's mortgagee, or any potential purchaser of the Building,
it being intended that any such statement delivered pursuant to this Paragraph
may be relied upon by any prospective purchaser of all or any portion of
Landlord's interest herein, or a holder of any mortgage or deed of trust
encumbering any portion of the Building. In the event that Tenant does not
execute the statement required by this Paragraph, it shall be conclusive upon
Tenant that: (i) this Lease is in full force and effect, without modification
except as may be represented by Landlord; (ii) there are no uncured defaults in
Landlord's performance; and (iii) no more than one (1) month's Rent has been
paid in advance.
19. DEFAULT:
(a) The following events (herein referred to as an "Event
of Default") shall constitute a default by Tenant hereunder.
(1) Tenant shall fail to pay when due any
installment of Base Rent, Additional Rent or any other amounts payable
hereunder;
(2) This Lease or the estate of Tenant hereunder
shall be transferred to or shall pass to or devolve upon any other person or
party in violation of the provisions of this Lease, except as permitted herein;
(3) This Lease or the Premises or any part
thereof shall be taken upon execution or by other process of law directed
against Tenant, or shall be taken upon or subject to any attachment at the
instance of any creditor or claimant against Tenant, and said attachment shall
not be discharged or disposed of within thirty (30) days after the levy thereof;
(4) Tenant shall file a petition in bankruptcy or
insolvency or for reorganization or arrangement under the bankruptcy laws of
the United States or under any insolvency act of any state, or shall
voluntarily take advantage of any such law or act by answer or otherwise, or
shall be dissolved or shall make an assignment for the benefit of creditors;
(5) Involuntary proceedings under any such
bankruptcy law or insolvency act or for the dissolution of Tenant shall be
instituted against Tenant, or a receiver or trustee shall be appointed of all
or substantially all of the property of Tenant, and such proceedings shall not
be dismissed or such receivership or trusteeship vacated within sixty (60) days
after such institution or appointment;
(6) Tenant shall abandon the Premises. Tenant
shall be deemed to have vacated (but not abandoned) the Premises if Tenant has
given Landlord prior written notice of intention to vacate and continues to pay
all Rent and other charges due under the Lease, which vacation shall not in and
of itself be a default hereunder. If Tenant does vacate with notice and
continued payment or otherwise, Tenant's rights or options, if any, to extend
the Term of the Lease shall be of no further force and effect;
(7) Tenant shall fail to perform any of the other
agreements, terms, covenants or conditions hereof on Tenant's part to be
performed, and such nonperformance shall continue for a period of fifteen (15)
days after notice thereof by Landlord to Tenant; provided, however, that if
Tenant cannot reasonably cure such nonperformance within fifteen (15) days,
Tenant shall not be in default if it commences cure within
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said fifteen (15) days and diligently pursues the same to completion, with
completion occurring in all instances within sixty (60) days;
(8) Tenant shall fail to obtain a release of any
lien, as required herein;
(9) A guarantor of this Lease, if any, or a
general partner of Tenant (if Tenant is a general or limited partnership),
becomes a debtor under any state or federal bankruptcy proceedings, or becomes
subject to receivership or trusteeship proceedings, whether voluntary or
involuntary; except in the case of a guarantor, Tenant shall not be in default
if a substitute guarantor, with acceptable creditworthiness and financial
abilities in light of the responsibilities of Tenant hereunder, and otherwise
acceptable to Landlord, is provided to Landlord within forty-five (45) days; and
(10) All or any part of the personal property of
Tenant is seized, subject to levy or attachment, or similarly repossessed or
removed from the Premises.
(b) REMEDIES OF LANDLORD. If any one or more Event of
Default shall happen, then Landlord shall have the right at Landlord's
election, then or at any time thereafter, either:
(1) (a) Without demand or notice, to reenter
and take possession of the Premises or any part thereof and repossess the same
as of Landlord's former estate and expel Tenant and those claiming through or
under Tenant and remove the effects of both or either, without being deemed
guilty of any manner of trespass and without prejudice to any remedies for
arrears of Rent or preceding breach of covenants or conditions. Should Landlord
elect to reenter, as provided in this subparagraph (1), or should Landlord take
possession pursuant to legal proceedings or pursuant to any notice provided for
by law, Landlord may, from time to time, without terminating this Lease, relet
the Premises or any part thereof, either alone or in conjunction with other
portions of the Building of which the Premises are a part, in Landlord's or
Tenant's name but for the account of Tenant, for such Term or terms (which may
be greater or less than the period which would otherwise have constituted the
balance of the Term of this Lease) and on such conditions and upon such other
terms (which may include concessions of free Rent and alteration and repair of
the Premises) as Landlord, in its absolute discretion, may determine and
Landlord may collect and receive the rents therefor. Landlord shall in no way
be responsible or liable for any failure to relet the Premises, or any part
thereof, or for any failure to collect any Rent due upon such reletting. No such
reentry or taking possession of the Premises by Landlord shall be construed as
an election on Landlord's part to terminate this Lease unless a written notice
of such intention be given to Tenant. No notice from Landlord hereunder or
under a forcible entry and detainer statute or similar law shall constitute an
election by Landlord to terminate this Lease unless such notice specifically so
states. Landlord reserves the right following any such reentry and/or
reletting to exercise its right to terminate this Lease by giving Tenant such
written notice, in which event the Lease will terminate as specified in said
notice.
(b) If Landlord elects to take
possession of the Premises as provided in this subparagraph (1) without
terminating the Lease, Tenant shall pay to Landlord (i) the Rent and other sums
as herein provided, which would be payable hereunder if such repossession had
not occurred, less (ii) the net proceeds, if any, of any reletting of the
Premises after deducting all of Landlord's expenses incurred in connection with
such reletting, including, but without limitation, all repossession costs,
brokerage commissions, legal expenses, attorneys' fees, expenses of employees,
alteration, remodeling, and repair costs and expenses of preparation for such
reletting. If, in connection with any reletting, the new lease term extends
beyond the existing Term or the premises covered thereby include other premises
not part of the Premises, a fair apportionment of the rent received from such
reletting and the expenses incurred in connection therewith, as provided
aforesaid, will be made in determining the net proceeds received from such
reletting. In addition, in determining the net proceeds from such reletting,
any rent concessions will be apportioned over the term of the new lease. Tenant
shall pay such amounts to Landlord monthly on the days on which the Rent and
all other amounts owing hereunder would have been payable if possession had not
been retaken and Landlord shall be entitled to receive e same from Tenant on
each such day; or
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(2) To give Tenant written notice of intention to
terminate this Lease on the date of such given notice or on any later date
specified therein and, on the date specified in such notice, Tenant's right to
possession of the Premises shall cease and the Lease shall thereupon be
terminated, except as to Tenant's liability hereunder as hereinafter provided,
as if the expiration of the Term fixed in such notice were the end of the Term
herein originally demised. In the event this Lease is terminated pursuant to
the provisions of this subparagraph (2), Tenant shall remain liable to Landlord
for damages in an amount equal to the Rent and other sums which would have been
owing by Tenant hereunder for the balance of the Term had this Lease not been
terminated less the net proceeds, if any, of any reletting of the Premises by
Landlord subsequent to such termination, after deducting all Landlord's
expenses in connection with such reletting, including, but without limitation,
the expenses enumerated above. Landlord shall be entitled to collect such
damages from Tenant monthly on the days on which the Rent and other amounts
would have been payable hereunder if this Lease had not been terminated and
Landlord shall be entitled to receive the same from Tenant on each such day.
Alternatively, at the option of Landlord, in the event this Lease is
terminated, Landlord shall be entitled to recover forthwith against Tenant as
damages for loss of the bargain and not as a penalty an amount equal to the
worth at the time of termination of the excess, if any, of the amount of Rent
reserved in this Lease for the balance of the Term hereof over the then
Reasonable Rental Value of the Premises for the same period plus all amounts
incurred by Landlord in order to obtain possession of the Premises and relet
the same, including attorneys' fees, reletting expenses, alterations and repair
costs, brokerage commissions and all other like amounts. It is agreed that the
"Reasonable Rental Value" shall be the amount of rental which Landlord can
reasonably expect to obtain as rent for the remaining balance of the Term.
(c) Suit or suits for the recovery of the rents and other
amounts and damages set forth hereinabove may be brought by Landlord, from time
to time, at Landlord's election, and nothing herein shall be deemed to require
Landlord to await the date whereon this Lease or the term hereof would have
expired had there been no such default by Tenant or no such termination, as the
case may be. Each right and remedy provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy provided for
in this Lease or now or hereafter existing at law or in equity or by statute or
otherwise, including, but not limited to, suits for injunctive relief and
specific performance. The exercise or beginning of the exercise by Landlord of
any one or more of the rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by Landlord of any or all other
rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise. All such rights and remedies shall
be considered cumulative and non-exclusive. All costs incurred by Landlord in
connection with collecting any Rent or other amounts and damages owing by Tenant
pursuant to the provisions of this Lease, or to enforce any provision of this
Lease, shall also be recoverable by Landlord from Tenant. Further, if an action
is brought pursuant to the terms and provisions of the Lease, the prevailing
party in such action shall be entitled to recover from the other party any and
all reasonable attorneys' fees incurred by such prevailing party in connection
with such action.
(d) No failure by Landlord to insist upon the strict
performance of any agreement, term, covenant or condition hereof or to exercise
any right or remedy consequent upon a breach thereof and no acceptance of full
or partial Rent during the continuance of any such breach shall constitute a
waiver of any such breach or of such agreement, term, covenant, or condition. No
agreement, term, covenant, or condition hereof to be performed or complied with
by Tenant and no breach thereof shall be waived, altered, or modified, except by
written instrument executed by Landlord. No waiver of any breach shall affect or
alter this Lease but each and every agreement, term, covenant, and condition
hereof shall continue in full force and effect with respect to any other then
existing or subsequent breach thereof. Notwithstanding any termination of this
Lease, the same shall continue in force and effect as to any provisions which
require observance or performance by Landlord or Tenant subsequent to such
termination.
(e) Any Rent or other amounts owing hereunder which are
not paid within five (5) days after the date they are due shall thereafter bear
interest at the rate of one and one-half percent (1 1/2%) per month (the
"Default Rate") until paid. Further, in the event any Rent or other amounts
owing hereunder are not paid within said five (5) days after the date they are
due, Landlord and Tenant agree that Landlord will incur additional
administrative expenses, the amount of which will be difficult if not impossible
to determine.
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Accordingly, Tenant shall pay to Landlord an additional, one-time late charge
for any such late payment in the amount of five percent (5%) of such payment.
Any amounts paid by Landlord to cure any defaults of Tenant hereunder, which
Landlord shall have the right but not the obligation to do, shall, if not
repaid by Tenant within five (5) days of demand by Landlord, thereafter bear
interest at the Default Rate.
(f) Tenant hereby waives (to the extent allowed by law)
any and all rights to a trial by jury in suit or suits brought to enforce any
provision of this Lease or arising out of or concerning the provisions of this
Lease
20. HOLDING OVER: Should Tenant, with Landlord's written consent,
hold over after the termination of this Lease and continue to pay Rent, Tenant
shall become a tenant from month to month only upon each and all of the terms
herein provided as may be applicable to such month to month tenancy and any such
holding over shall not constitute an extension of this Lease. During such
holding over, Tenant shall pay monthly Rent equal to one hundred twenty-five
percent (125%) of the last monthly Rent and the other monetary charges as
provided herein. Such tenancy shall only be available to Tenant for a maximum of
two (2) calendar months and may be terminated by Landlord or Tenant by giving at
least ten (10) days written notice prior to the end of the first hold over
calendar month. None of the terms in the paragraph or the fact that the Tenant
is allowed to hold over shall be considered as an assurance to the Tenant that
it may continue occupancy of the Premises after the expiration of the Term of
this Lease, or as an extension of the Term of this Lease by the Landlord on any
basis, nor as a waiver of any of the Landlord's rights to terminate this Lease
and re-enter the Premises. Nothing contained herein shall be construed to give
Tenant the right to holdover at any time, and Landlord may exercise any and all
remedies at law or in equity to recover possession of the Premises, as well as
damages incurred by Landlord due to Tenant's failure to vacate the Premises and
deliver possession to Landlord as herein provided. Tenant shall reimburse
Landlord and indemnify Landlord against all damages incurred by Landlord from
any delay by Tenant in vacating the Premises.
21. COMMON AREA AND PARKING: Except as otherwise specifically
provided herein, all access roads, courtyards, and other areas, facilities or
improvements furnished by Landlord are for the general and nonexclusive use in
common of all tenants of the Building, and those persons invited upon the land
upon which the Building is situated (the "Common Area") and shall be subject to
the exclusive control and management of Landlord, and Landlord shall have the
right, without obligation to establish, modify and enforce such rules and
regulations which the Landlord may deem reasonable and/or necessary. Any and
all parking privileges granted to Tenant are described on EXHIBIT F attached
hereto and made a part hereof.
22. SURRENDER: Upon the expiration or earlier termination of this
Lease, Tenant shall promptly quit and surrender to Landlord the Premises broom
clean, in good order and condition, ordinary wear and tear and loss by fire or
other casualty excepted, and Tenant shall remove all of its movable furniture
and other effects and such alterations, additions and improvements as Landlord
shall require Tenant to remove pursuant to Paragraph 10 hereof. In the event
Tenant fails to so vacate the Premises on a timely basis as required, Tenant
shall be responsible to Landlord for all costs and damages, including, but not
limited to, any amounts required to be paid to third parties who were to have
occupied the Premises, incurred by Landlord as a result of such failure, plus
interest thereon on all amounts not paid by Tenant within five (5) days of
demand, until paid in full. Tenant's obligation hereunder shall survive the
expiration or other termination of this Lease. All movable furniture and
personal effects of Tenant not removed from the Premises upon the vacation or
abandonment of the Premises or upon the termination of this Lease for any cause
whatsoever shall conclusively be deemed to have been abandoned and may be
appropriated, sold, stored, destroyed or otherwise disposed of by Landlord
without notice to Tenant and without obligation to account therefor, and Tenant
shall reimburse Landlord for all expenses incurred in connection with the
disposition of such property.
23. SUBORDINATION AND ATTORNMENT:
(a) This Lease, and all rights of Tenant hereunder, are
and shall be subject and subordinate in all respects to all present and future
ground leases, overriding leases and underlying leases and/or
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grants of term of the real property and/or the Building now or hereafter
existing and to all deeds of trust, mortgages and building loan agreements,
including leasehold mortgages and building loan agreements, which may now or
hereafter affect the Building. The provisions of this Paragraph shall be
self-operative and no further instrument of subordination shall be required.
However, in confirmation of such subordination, Tenant shall promptly execute
and deliver to Landlord (or such other party so designated by Landlord) at
Tenant's own cost and expense, within five (5) days after request from Landlord
an instrument, in recordable form if required, that Landlord, the lessor of any
such lease or the holder of any deed of trust or mortgage or any of their
respective successors in interest or assigns may request evidencing such
subordination. In the event that Tenant does not execute such documents as may
be required to confirm the subordination set forth in this Paragraph, Tenant
shall be in default under the Lease without the necessity of further notice.
The leases to which this Lease is, at the time referred to, subject and
subordinate pursuant to this Paragraph are hereinafter sometimes called
"superior leases" and the deeds of trust or mortgages to which this Lease is,
at the time referred to, subject and subordinate are hereinafter sometimes
called "superior deeds of trust" or "superior mortgages". The lessor of a
superior lease or the beneficiary of a superior deed of trust or superior
mortgage or their successors in interest or assigns are hereinafter sometimes
collectively referred to as a "superior party". Notwithstanding the foregoing,
upon tenant's request, Landlord agrees to request such superior party grant to
Tenant a non-disturbance agreement in the form then being used by such superior
party for such purposes, providing that if such superior party succeeds to
Landlord's intent in the Lease, Tenant shall be entitled to remain in
possession of the Premises in accordance with the terms of this Lease for so
long as Tenant shall not be in default of any term, condition or covenant of
this Lease. Further, Tenant shall attorn to such superior party or to all
successor owners of the Building whether or not such ownership is acquired as a
result of a sale, through foreclosure of a deed to trust or mortgage, otherwise
and agrees to confirm such attornment in writing.
(b) Tenant shall take no steps to terminate this Lease,
without giving written notice to such superior party, and a reasonable
opportunity to cure (without such superior party being obligated to cure), any
default on the part of Landlord under this Lease.
(c) If, in connection with the procurement, continuation
or renewal of any financing for which the Building or of which the interest of
the lessee therein under a superior lease represents collateral in whole or in
part, a lender shall request reasonable modifications of this Lease as a
condition of such financing, Tenant will not unreasonably withhold, condition
or delay its consent thereto provided that such modifications do not increase
the obligations of Tenant under this lease or adversely affect any rights of
Tenant or decrease the obligations of Landlord under this Lease.
24. PAYMENTS AFTER TERMINATION: No payments of money by Tenant to
Landlord after the termination of this Lease, in any manner, or after giving of
any notice (other than a demand for payment of money) by Landlord to Tenant,
shall reinstate, continue or extend the Term of this lease or affect any notice
given to Tenant prior to the payment of such money, it being agreed that after
the service of notice to the commencement of a suite or other final judgment
granting Landlord possession of the Premises, Landlord may receive and collect
any sums of Rent due, or any other sums of money due under the terms of this
Lease or otherwise exercise its rights and remedies hereunder. The payment of
such sums of money, whether as Rent or otherwise, shall not waive said notice
or in any manner affect any pending suit or judgment theretofore obtained.
25. AUTHORITIES FOR ACTION AND NOTICE:
(a) Except as otherwise provided herein, Landlord may,
for any matter pertaining to this Lease, act by and through its building
manager or any other person designated in writing from time to time.
(b) All notices or demands required or permitted to be
given to Landlord hereunder shall be in writing, and shall be deemed duly
served when received, if hand delivered, or three (3) days after deposited in
the United States mail, with proper postage prepaid, certified or registered,
return receipt requested, addressed to Landlord in care of:
Fleisher-Smyth Company
2060 Broadway, Suite 250
Boulder, CO 80302
Attn: Clark Smyth
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All notices or demands required to be given to Tenant hereunder shall be in
writing, and shall be deemed duly served when received, if hand delivered, or
three (3) days after deposited in the United States mail, with proper postage
prepaid, certified or registered, return receipt requested, addressed to Tenant
at the Premises with a copy to: Abacus Direct Corporation, 8774 Yates Dr.,
Westminster, Colorado 80030. Landlord shall have the right to designate in
writing, served as above provided, a different address to which notice is to be
provided. The foregoing shall in no event prohibit notice from being given as
provided in Rule 4 of the Colorado Rules of Civil Procedure, as the same may be
amended from time to time.
26. LIABILITY OF LANDLORD: Landlord's liability under this Lease
shall be limited to Landlord's estate and interest in the Building (or to the
proceeds thereof) and no other property or other assets of Landlord shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to this Lease, the relationship of
Landlord and Tenant hereunder or Tenant's use and occupancy of the Premises.
Nothing contained in this Paragraph shall be construed to permit Tenant to
offset against rents due a successor landlord, a judgment (or other judicial
process) requiring the payment of money by reason of any default of a prior
landlord, except as otherwise specifically set forth herein.
27. BROKERAGE: Both Landlord and Tenant represent and warrant to
each other that neither party has dealt with any broker, agent or other person
in connection with this transaction and that no broker, agent or other person
brought this transaction other than Fleisher-Smyth Company acting as Landlord's
agent and The Staubach Company-Front Range, LLC, acting as Tenant's Exclusive
Representative. Tenant agrees to indemnify and hold Landlord harmless from and
against any claims, expense or liability (including costs of suit and
reasonable attorneys' fees) by any broker, agent, or other person claiming a
fee, commission or other compensation by virtue of having dealt with Tenant
with regard to this leasing transaction. Tenant's renewal of this Lease,
expansion of Premises, modification of Lease, or exercise of any option
contained in this Lease is conditioned upon Landlord not paying any real estate
leasing commissions or fees pertaining thereto to any broker, agent or other
person which Tenant chooses to utilize. Additionally, Tenant acknowledges and
agrees that Landlord shall have no obligation for payment of any brokerage fee
or similar compensation to any person with whom Tenant has dealt or may in the
future deal with respect to leasing of any additional or expansion space in the
Building or renewals or extensions of this Lease, except as may be provided by
Landlord's separate written agreement. In the event any claim shall be made
against Landlord by any other broker who shall claim to have negotiated this
Lease on behalf of Tenant or to have introduced Tenant to the Building or to
Landlord, Tenant shall be liable for payment of all reasonable attorneys' fees,
costs and expenses incurred by Landlord in defending against the same, and in
the event such broker shall be successful in any such action, Tenant shall, in
addition, make payment to such broker. The provisions of this Paragraph shall
survive the expiration or termination of the Lease.
28. FORCE MAJEURE CLAUSE: Wherever there is provided in this Lease
a time limitation for performance by Landlord of any obligation including, but
not limited to, obligations related to construction, repair, maintenance or
service, the time provided for shall be extended for as long as and to the
extent that delay in compliance with such limitation is due to an act of God,
governmental control or other factors beyond the reasonable control of
Landlord.
29. SIGNAGE: No sign, advertisement or notice shall be inscribed,
painted or affixed on any part of the inside or outside of the Building unless
of such color, size and style and in such place upon or in the Building as
shall be first designated by Landlord, but there shall be no obligation or duty
on Landlord to allow any sign, advertisement or notice to be inscribed, painted
or affixed on any part of the inside or outside of the Building, except for one
Building Standard suite designation sign and one line on the Building directory
which Landlord agrees to provide.
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30. HAZARDOUS MATERIALS: Landlord represents that it has no
knowledge of any present or past Hazardous Waste contamination, spills or
violations in the Building.
(a) Tenant shall (i) not cause or permit any Hazardous
Material to be brought upon, kept, or used in or about the Premises by Tenant,
its agents, employees, contractors, licensees or invitees, without prior written
consent of Landlord (which Landlord shall not unreasonably withhold or delay as
long as Tenant demonstrates to Landlord's reasonable satisfaction that such
Hazardous Material is necessary or useful to Tenant's business and will be used,
kept and stored in a manner that complies with all laws regulating any such
Hazardous Materials so brought upon or used or kept in or about the Premises).
If Tenant breaches the obligations stated in the preceding sentence, or if the
presence of Hazardous Material on the Premises caused or permitted by Tenant
results in contamination of the Premises or Building, or any part thereof, or if
contamination of the Premises or Building by Hazardous Material otherwise occurs
for which Tenant is legally liable to Landlord for damage resulting therefrom,
then Tenant shall indemnify, defend and hold Landlord, its agents, employees,
legal representatives, successors and assigns, harmless from any and all claims,
judgments, damages, penalties, fines, costs, liabilities, or losses (including,
without limitation, diminution in value of the Premises, damages for the loss or
restriction on use of any rentable or usable space or of any amenity of the
Premises or Building, damages arising from any adverse impact on marketing of
space in the Building, and sums paid in settlement of claims, reasonable
attorneys' fees, consultant fees and expert fees) which arise during or after
the Lease term as a result of such contamination. This indemnification of
Landlord by Tenant includes, without limitation, such costs incurred in
connection with any investigation of site conditions or any cleanup, remedial,
removal or restoration work required by any federal, state, or local
governmental agency or political subdivision because of Hazardous Material
present in or about the Building or the soil or ground water on or under the
Building. The obligations and liabilities of Tenant herein shall survive
expiration or termination of this Lease
(b) "Hazardous Material," as used in this Lease, shall be
construed in its broadest sense and shall include asbestos, other asbestotic
material (which is currently or may be designated in the future as a Hazardous
Material), any petroleum base products, pesticides, paints and solvents,
polychlorinated biphenyl, lead, cyanide, DDT, acids, ammonium compounds and
other chemical products (excluding commercially used cleaning materials in
ordinary quantities) and any substance or material if defined or designated as
hazardous or toxic substance, or other similar term, by any federal, state or
local law, statute, regulation, or ordinance affecting the Building or Premises
presently in effect or that may be promulgated in the future, as such statutes,
regulations and ordinances may be amended from time to time.
(c) In the event Tenant causes or permits Hazardous
Material to be brought upon, kept, or used in or about the Premises, with or
without Landlord's consent, in addition to all other remedies under this Lease,
at law, or in equity, Landlord shall be entitled to have an environmental audit
performed at reasonable intervals during the Term, in Landlord's reasonable
judgment, the reasonable costs and expense of which shall be paid by Tenant.
31. SUBSTITUTION OF PREMISES: INTENTIONALLY DELETED
32. MISCELLANEOUS:
(a) The rules and regulations attached hereto as EXHIBIT
D, as well as such rules and regulations as may hereafter be adopted by
Landlord for the safety, care and cleanliness of the Premises and the Building
and the preservation of good order thereon, are hereby expressly made a part
hereof, and Tenant agrees to obey all such rules and regulations.
20
<PAGE> 21
(b) The term "Landlord" as used in this Lease, so far as
covenants or obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner or owners of the Building at the
time in question, and in the event of any transfer or transfers of the title
thereto, Landlord herein named (and in the case of any subsequent transfers or
conveyances, the then grantor) shall be automatically released from and after
the date of such transfer or conveyance of all liability in respect to the
performance of any covenants or obligations on the part of Landlord contained
in this Lease thereafter to be performed and relating to events occurring
thereafter; provided that any funds in the hands of Landlord or the then
grantor at the time of such transfer in which Tenant has an interest shall be
turned over to the grantee, and any amount then due and payable to Tenant by
Landlord or the then grantor under any provisions of this Lease shall be paid
to Tenant.
(c) This Lease shall be construed as though the covenants
herein between Landlord and Tenant are independent and not dependent and Tenant
shall not be entitled to any setoff of the rent or other amounts owing
hereunder against Landlord, if Landlord fails to perform its obligations set
forth herein, except as herein specifically set forth; provided, however, the
foregoing shall in no way impair the right of Tenant to commence a separate
action against Landlord for any violation by Landlord of the provisions hereof
so long as notice is first given to Landlord and any holder of a mortgage or
deed of trust covering the Building or any portion thereof whose address Tenant
has been notified in writing and so long as an opportunity has been granted to
Landlord and such holder to correct such violation as provided in subparagraph
(g) hereof. Tenant must give notices to mortgagees or superior interests only
if Landlord has provided Tenant with the names and addresses of such parties
(e.g. see 33(g).
(d) If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during the Term
of this Lease, then and in that event, it is the intention of the parties
hereto that the remainder of this Lease shall not be affected thereby, and it
is also the intention of the parties to this Lease that in lieu of each clause
or provision of this Lease that is illegal, invalid or unenforceable, there
shall be added as a part of this Lease a clause or provision as similar in
terms to such illegal, invalid or unenforceable clause or provision as may be
possible and be legal, valid and enforceable, provided such addition does not
increase or decrease the obligations of or derogate from the rights or powers
of either Landlord or Tenant.
(e) The captions of each paragraph are added as a matter
of convenience only and shall be considered of no effect in the construction of
any provision or provisions of this Lease.
(f) Except as herein specifically set forth, all terms,
conditions and covenants to be observed and performed by the parties hereto
shall be applicable to and binding upon their respective heirs, administrators,
executors, successors and assigns. The terms, conditions and covenants hereof
shall also be considered to be covenants running with the land.
(g) Except as otherwise specifically provided herein, in
the event Landlord shall fail to perform any of the agreements, terms,
covenants or conditions hereof on Landlord's part to be performed, and such
nonperformance shall continue for a period of thirty (30) days after written
notice thereof, from Tenant to Landlord, or if such performance cannot be
reasonably had within such thirty (30) day period, and Landlord shall not in
good faith have commenced such performance within such thirty (30) day period
and proceed therewith to completion, it shall be considered a default of
Landlord under this Lease. Tenant shall give written notice to Landlord in the
matter herein set forth and shall afford Landlord a reasonable opportunity to
cure any such default. In addition, Tenant shall send notice of such default by
certified or registered mail, with proper postage prepaid, to the holder of any
mortgages or deeds of trust covering the Building or any portion thereof of
whose address Tenant has been notified in writing and shall afford such holder
a reasonable opportunity to cure any alleged default on Landlord's behalf.
21
<PAGE> 22
(h) If there is more than one entity or person which or
who are the Tenants under this Lease, the obligations imposed upon Tenant under
this Lease shall be joint and several.
(i) No act or thing done by Landlord or Landlord's agent
during the Term hereof, including but not limited to any agreement to accept
surrender of the Premises or to amend or modify this Lease, shall be deemed to
be binding upon Landlord unless such act or things shall be by an officer of
Landlord or a party designated in writing by Landlord as so authorized to act.
The delivery of keys to Landlord, or Landlord's agent, employees or officers
shall not operate as a termination of this Lease or a surrender of the
Premises. No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly Rent herein stipulated shall be deemed to be other than on account
of the earliest stipulated Rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Rent be deemed an
accord and satisfaction and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or pursue any
other remedy available to Landlord.
(j) Landlord shall have the right to construct other
buildings or improvements in any plaza or any other area designated by Landlord
for use by tenants or to change the location, character or make alterations of
or additions to any of said plazas or other areas. Landlord, during the entire
term of this Lease, shall have the right to change the number and name of the
Building or Building at any time without liability to Tenant.
(k) Tenant acknowledges and agrees that it has not relied
upon any statements, representations, agreements or warranties, except such as
are expressed in this Lease.
(l) As part of the services Landlord provides hereunder,
Landlord may elect to provide a concierge or security guard for more efficient
operation of the Building, and the cost therefor shall be included as an
Operating Expense. Landlord is not obligated to provide such services at any
time or for any length of time. Tenant expressly acknowledges that Landlord has
not represented to Tenant that the Building is a secure building and Landlord
assumes no duty to Tenant, its agents, employees, invitees or others because
Landlord provides such service.
(m) Tenant and Landlord and the parties executing this
Lease on behalf of each of them represent to each other that they are
authorized to do so by requisite action of the board of directors or partners,
as the case may be, and agree upon request to deliver to each other a
resolution or similar document to that effect.
(n) This Lease shall be governed by and construed in
accordance with the laws of the State of Colorado.
(o) This Lease, together with the exhibits attached
hereto, contains the entire agreement of the parties and may not be amended or
modified in any manner except by an instrument in writing signed by both
parties.
(p) Tenant shall not use the name of the Building as part
of its legal or trade name, nor for any purpose other than as an address for
the business to be conducted by Tenant in the Premises.
(q) The submission or delivery of this document for
examination and review does not constitute an option, an offer to lease space
in the Building, or an agreement to lease. This document shall have no binding
effect on the parties unless and until executed by both Landlord and Tenant.
33. CONFIDENTIALITY: The parties acknowledge and agree that the
terms and conditions of this Lease which are not generally known to the public
(collectively, the "Lease Information") is confidential and is proprietary
property of the parties, and that such Lease information will not be disclosed
or discussed with any other person except as may be specifically provided
below; provided that the parties may disclose lease
22
<PAGE> 23
information (i) to their attorney's, accountants, employees, brokers,
contractors, property managers and agents; (ii) when required by court order
applicable law or regulation; (iii) pursuant to any litigation or legal process
involving either party; and (iv) potential purchasers of the property or
lenders of the property. In the event a party is requested, pursuant to or
required by applicable law or regulation or by legal process, litigation or
court order, to disclose any Lease Information, the parties further agree to
provide each other with prompt notice of any such request to enable the
parties to seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Section. Any breach by either party of
the provisions of this Section shall entitle the other party to any remedies
under law or equity or remedies as set forth in this Lease; provided, that
neither party may terminate this Lease solely because of the other party's
breach of this Section.
34. TIME OF THE ESSENCE: Time is of the essence under this Lease,
and all provisions herein relating thereto shall be strictly construed. Unless
waived by Landlord (which it shall have the right, but not the obligation, to
so do), this Lease is contingent upon execution and delivery by Tenant to
Landlord no later than 5:00 p.m. Denver, Colorado time, December 2, 1997.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the
day and year first above written.
LANDLORD:
WESTPIKE LLC, a Colorado limited liability company;
1325 GARFIELD LIMITED LIABILITY COMPANY, a Colorado
limited liability company; 520 COOPER LIMITED
LIABILITY COMPANY, a Colorado limited liability
company; and PHILIP M. HOLSTEIN, an individual; and
MIRIAM SIMMS, an individual
By: /s/ CLARK SMYTH
------------------------------------------------
Clark Smyth, President
Fleisher-Smyth Company
its designated property manager
TENANT:
ABACUS DIRECT CORPORATION, a Delaware corporation
By: /s/ CARLOS SALA
------------------------------------------------
Printed Name: Carlos Sala
---------------------------------------
Title: Chief Financial Officer
----------------------------------------------
EXHIBITS
<TABLE>
<S> <C>
EXHIBIT A The Premises
EXHIBIT B Real Property
EXHIBIT C Work Letter
EXHIBIT D Rules and Regulations
EXHIBIT E Estoppel and Commencement Date Certificate
EXHIBIT F Parking
</TABLE>
23
<PAGE> 24
LEASE ADDENDUM
THIS LEASE ADDENDUM dated this 2nd day of December, 1997, is to that
certain Lease Agreement, ("Lease" herein), dated December 2, 1997, by and
between WESTPIKE LLC, a Colorado limited liability company; 1325 GARFIELD
LIMITED LIABILITY COMPANY, a Colorado limited liability company; 520 COOPER
LIMITED LIABILITY COMPANY, a Colorado limited liability company; and PHILIP M.
HOLSTEIN, an individual; and MIRIAM SIMMS, an individual (collectively the
"Landlord") and ABACUS DIRECT CORPORATION, a Delaware corporation ("Tenant")
with respect to the Premises known and described as approximately 11,298
rentable square feet, located on the first floor, being Suite 110 (the
"Premises"), located in that certain Building known as Westpark Place Office
Building ("Building" or "Building Complex" herein) located at 8700 Turnpike
Dr., Westminster, Colorado. In the event of any conflict between the terms and
provisions of the printed portion of the Lease and the terms and provisions of
this Lease Addendum, the terms and provisions of this Addendum shall control.
1. Option to Renew. Provided that Tenant is not in default under
any of the terms, conditions or provisions of the Lease at the time that notice
is required, as provided for herein, Tenant shall have two (2) options to renew
this Lease for an additional period(s) of three (3) months each ("Extended
Term"). In order to exercise these Options to Renew, Tenant shall provide
Landlord with at least 120 days prior written notice of its intention to
exercise this Option. The terms and conditions of the Extended Term shall be
the same as the initial term, except that the Base Rental rate shall be 103% of
the then current rental rate being paid by Tenant. The Premises shall be leased
for the extended term(s) in its then current "as-is" condition. The Landlord
shall not be obligated to pay a commission to a broker representing the Tenant
in the event the Tenant elects to exercise this Option.
2. The Lease is modified to conform to the terms and conditions
of this Lease Addendum and except as herein modified is ratified and affirmed.
IN WITNESS WHEREOF, the parties hereto have caused this Lease Addendum
to be executed the day and year first written above.
LANDLORD:
WESTPIKE LLC, a Colorado limited liability company;
1325 GARFIELD LIMITED LIABILITY COMPANY, a Colorado
limited liability company; 520 COOPER LIMITED
LIABILITY COMPANY a Colorado limited liability
company; and PHILIP M. HOLSTEIN, an individual; and
MIRIAM SIMMS, an individual
By: /s/ CLARK SMYTH
------------------------------------------------
Clark Smyth, President
Fleisher-Smyth Company
its designated property manager
TENANT:
ABACUS DIRECT CORPORATION, a Delaware corporation
By: /s/ CARLOS SALA
------------------------------------------------
Printed Name: Carlos Sala
---------------------------------------
Title: Chief Financial Officer
----------------------------------------------
1
<PAGE> 1
EXHIBIT 10.08
SUBLEASE
between
THE REALLY USEFUL COMPANY, INC.
(Sublandlord)
and
ABACUS DIRECT CORPORATION
(Subtenant)
May 15, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<C> <C>
1 Subleasing of Premises.................................. 2
2. Condition of Premises................................... 2
3. Term of Sublease........................................ 3
4. Prime Landlord's Consent................................ 4
5. Rent.................................................... 4
6. Use..................................................... 8
7. Subordination to and Incorporation of The Prime Lease... 8
8. Attornment.............................................. 12
9. Quiet Enjoyment......................................... 13
10. Representations, Warranties and Covenants............... 13
11. Services and Repairs.................................... 14
12. Enforcement of Prime Lease.............................. 15
13. Assignment, Subletting and Encumbrances................. 16
14. Indemnification......................................... 19
15. Alterations............................................. 20
16. Insurance............................................... 21
17. Destruction by Fire or Other Casualty; Condemnation..... 22
18. Security................................................ 23
19. Broker.................................................. 25
20. Notices................................................. 25
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C>
21. No Waivers.............................................. 26
22. Consent................................................. 27
23. Miscellaneous........................................... 28
</TABLE>
ii
<PAGE> 4
AGREEMENT OF SUBLEASE
AGREEMENT OF SUBLEASE (this "Sublease"), made as of May 15, 1997, between
THE REALLY USEFUL COMPANY, INC. ("Sublandlord"), a Delaware corporation having
an office at One Rockefeller Plaza, New York, New York 10020, and ABACUS DIRECT
CORPORATION ("Subtenant"), a Delaware corporation having an office at 590 Fifth
Avenue, New York, New York 10017.
WITNESSETH
WHEREAS, by a Lease dated July 15, 1992 between RCPI Trust
(successor-in-interest to Rockefeller Center Properties), a Delaware business
trust ("Prime Landlord"), as landlord, and Sublandlord, as tenant, as modified
and amended by that certain Supplemental Indenture dated August 16, 1993 ("First
Supplemental Indenture"), as further modified and amended by that certain
Supplemental Indenture dated June 10, 1994 ("Second Supplemental Indenture"), as
further modified and amended by that certain Supplemental Indenture dated as of
April 1, 1996 ("Third Supplemental Indenture") and as further modified and
amended by that certain First Amendment to Lease, dated May 16, 1997 ("First
Amendment") all of which are attached hereto as Exhibit A and made a part hereof
(such Lease as so modified and amended and as it may be further modified and
amended from time to time, the "Prime Lease"), Prime Landlord leased to
Sublandlord certain premises in the building known as and by the street address
One Rockefeller Plaza, New York, New York (the "Building");
<PAGE> 5
2
WHEREAS, Sublandlord has duly delivered to Prime Landlord notice of its
election to terminate the Second Supplemental Indenture with respect to the
Storage Space "G" demised thereunder; and
WHEREAS, Sublandlord desires to sublease to Subtenant, and Subtenant
desires to hire from Sublandlord, all of the premises designated by the
cross-hatching and the letters "D", "H" and "F" on the two (2) floor plans
attached hereto as Exhibit B and made a part hereof, on the fifteenth (15th)
floor of the Building on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
it is agreed as follows:
1. Subleasing of Premises.
Sublandlord hereby sublets to Subtenant and Subtenant hereby hires from
Sublandlord the Premises.
2. Condition of Premises.
On the Commencement Date (as hereinafter defined), Sublandlord shall
deliver the Premises, and Subtenant agrees to accept the Premises, broom clean,
in its present "as is" condition, reasonable wear and tear excepted, and
including only the furniture and telephones set forth on Exhibit C, attached
hereto and made a part hereof. Sublandlord shall not be obligated to perform any
work or furnish any materials in, to or about the Premises in order to prepare
the Premises for use or occupancy by Subtenant or otherwise. Subtenant agrees
that in executing this Sublease, it has not relied upon any statements,
representations, covenants or
<PAGE> 6
3
warranties made by Sublandlord or any person acting on behalf of Sublandlord
other than those, if any, expressly set forth in this Sublease and on such
investigations, examinations and inspections as Subtenant has chosen to make or
has made.
3. Term of Sublease.
3.1 The term ("Term") of this Sublease shall commence on the later of
June 1, 1997 and the date which is three (3) Business Days (as hereinafter
defined) after Sublandlord gives Subtenant notice that the Prime Landlord has
consented to this Sublease (the "Commencement Date") and, unless sooner
terminated as herein provided, shall expire on September 29, 2002 (the
"Expiration Date"). As used herein, the term "Business Days" shall mean all days
except Saturdays, Sundays, and days on which banks located within the State of
New York are required or permitted to be closed.
3.2 If the term of the Prime Lease is terminated for any reason prior
to the Expiration Date, this Sublease shall thereupon be terminated ipso facto
without any liability of Sublandlord to Subtenant by reason of such early
termination unless such termination is due to the default of Sublandlord under
the Prime Lease. Sublandlord shall comply with all of the terms and conditions
of the Prime Lease except to the extent of Subtenant's obligations hereunder.
Notwithstanding the foregoing, any liability of Subtenant to make any payment of
Rent (as hereinafter defined) or otherwise under this Sublease, which shall have
accrued prior to the termination of this Sublease, shall survive the termination
of this Sublease.
<PAGE> 7
4
4. Prime Landlord's Consent.
This Sublease is subject to and conditioned upon Sublandlord obtaining the
written consent of Prime Landlord to this Sublease, to the extent required under
the Prime Lease. Sublandlord shall promptly request such consent, and Subtenant
shall cooperate with Sublandlord, at no cost or expense to Sublandlord, to
obtain such consent and shall provide all information concerning Subtenant, that
Prime Landlord shall reasonably request. If such consent is refused or if Prime
Landlord shall otherwise fail to grant such consent by June 1, 1997, then, on
such date, or earlier if landlord refuses to grant its consent to this Sublease
before such date, this Sublease shall automatically terminate. The foregoing
shall be self-operative without the necessity of the execution of any further
instruments, but Sublandlord agrees that upon the written request of Subtenant,
Sublandlord shall refund to Subtenant within two (2) days of such request any
rent paid in advance hereunder together with Subtenant's security deposit, if
already delivered. Upon the making of such refunds, neither party hereto shall
have any further obligation to the other under this Sublease, except to the
extent that the provisions of this Sublease expressly survive the termination of
this Sublease.
5. Rent.
5.1 Subtenant covenants and agrees to pay to Sublandlord, in
lawful money of the United States, fixed minimum rent ("Fixed Rent") for the
entire Term of $239,175.00 per annum payable in equal monthly installments of
$19,931.25 as provided below.
<PAGE> 8
5
5.2 In addition to the Fixed Rent set forth above, Subtenant
covenants and agrees to pay, from and after the Commencement Date, the following
amounts as additional rent hereunder ("Additional Rent"). Sublandlord shall bill
Subtenant for each item of Additional Rent and Subtenant shall pay each amount
so billed within five (5) Business Days after receipt of the bill from
Sublandlord. Upon Subtenant's written request, Sublandlord shall deliver to
Subtenant, a copy of the Escalation Statement sent to Sublandlord by Prime
Landlord. The Additional Rent items to be paid by Subtenant are as follows:
(i) All amounts due to Prime Landlord pursuant to Article
Twenty-Fourth (Adjustments for Changes in Landlord's Costs and Expenses) of the
Prime Lease, as amended, for the period from and after the Commencement Date,
including estimated as well as actual bills; provided, however, that for
purposes of calculating Additional Rent under this Sublease, (a) the term "Base
Real Estate Taxes" as used in the Prime Lease shall mean the New York City
fiscal tax year beginning of July 1, 1997 and ending on June 30, 1998 and (b)
the term "Base COM" as used in the Prime Lease shall mean the O.E. Share of the
Cost of Operation and Maintenance for the Computation Year beginning on January
1, 1997 and ending on December 31, 1997; and
(ii) All amounts due to Prime Landlord pursuant to Article Fifth
(Electric Current and Water) of the Prime Lease for the period from and after
the Commencement Date, including estimated and actual bills, and including all
<PAGE> 9
6
taxes and surcharges, as such amount may be increased or decreased from time
to time; and
(iii) If Sublandlord shall be charged with respect to the
Premises for any other sums or charges pursuant to the provisions of the Prime
Lease, including, without limitation, for overtime or other extra services
requested by Subtenant, then Subtenant shall be liable for all such sums as
Additional Rent under this Sublease and such sums shall be due and payable by
Subtenant to Sublandlord on demand.
5.3 (i) Fixed Rent shall be due and payable, without prior
demand therefor, in equal monthly installments in advance, three (3) Business
Days prior to the first (1st) day of each month during the Term; provided,
however, that no Fixed Rent shall be due and payable for the first two (2)
months after the Commencement Date. If the Commencement Date shall be other than
the first day of a month or the expiration of the Term is other than the last
day of a month, the monthly installments of Fixed Rent and Additional Rent
payable hereunder for any such month shall be prorated on a per diem basis based
on the actual number of days in such month occurring during the Term.
(ii) If Sublandlord shall receive a refund of any Additional
Rent from the Prime Landlord with respect to the Premises pursuant to the terms
of the Prime Lease, Sublandlord shall notify Subtenant and refund to Subtenant
the portion thereof, if any, which shall have been paid by Subtenant hereunder.
<PAGE> 10
7
(iii) All of the amounts payable by Subtenant pursuant to this
Sublease, including, without limitation, Fixed Rent, Additional Rent, and all
other costs, charges, sums and deposits by Subtenant hereunder (collectively,
"Rent"), shall constitute rent under this Sublease and shall be payable in
lawful money of the United States which shall be legal tender in payment of all
debts and dues, public and private, at the time of payment by check drawn on a
bank or trust company which is a member of the New York Clearing House
Association, to Sublandlord or its designee at such address as Sublandlord shall
from time to time direct in writing.
(iv) Subtenant shall promptly pay the Rent as and when the same
shall become due and payable without setoff, offset or deduction of any kind
whatsoever and, in the event of Subtenant's failure to pay same when due,
Sublandlord shall have all of the rights and remedies provided for in the Prime
Lease or at law or in equity in the case of nonpayment of Rent. Subtenant's
obligation to pay Rent shall survive the expiration or sooner termination of
this Sublease.
(v) If any Rent shall not be paid within ten (10) days after
the same is due hereunder, such unpaid Rent shall bear interest at the same rate
as under the Prime Lease from time to time from the date on which such Rent was
originally due until the date when paid.
5.4 If any Rent shall become uncollectible, reduced or required to
be refunded because of any law, ordinance, rule or regulation of any
governmental authority, Subtenant shall enter into such agreements and take such
other steps as Sublandlord may reasonably request and as may be legally
permissible
<PAGE> 11
8
to permit Sublandlord to collect the maximum Rent which from time to time during
the continuance of such legal rent restriction may be legally permissible (but
not in excess of the amounts reserved therefor under this Sublease). Upon the
termination of such legal rent restriction, whether during the Term or after the
expiration date thereof, (i) Rent shall be payable in accordance with the
amounts reserved herein for the periods following such termination and (ii)
Subtenant shall pay to Sublandlord, to the maximum extent legally permissible,
an amount equal to (a) the Rent that would have been paid pursuant to this
Sublease but for such legal rent restriction, less (b) the Rent actually paid by
Subtenant during the period such legal rent restriction was in effect.
6. Use.
Subtenant shall use and occupy the Premises for executive, administrative,
general and clerical offices of a business or businesses which are not
prejudicial to the reputation of, nor reflect unfavorably on, Rockefeller Center
so as to detract from it as a location for an outstanding type of business
occupancy, including activities incidental thereto and for no other purpose.
Subtenant agrees not to permit the use of the Premises for any purpose
prohibited by the Prime Lease.
7. Subordination to and Incorporation of The Prime Lease.
7.1 This Sublease and all of Subtenant's rights hereunder are and
shall remain in all respects subject and subordinate to all of the terms,
conditions and provisions of the Prime Lease, a true and complete copy of which
(except for the reduction of the rent and certain other financial provisions) is
attached hereto as
<PAGE> 12
9
Exhibit A, together with any amendments or modifications thereto. This Sublease
and all of Subtenant's rights hereunder shall also remain subject and
subordinate to (a) any and all amendments to the Prime Lease or supplemental
agreements relating thereto hereafter made between Prime Landlord and
Sublandlord and (b) any and all matters to which the tenancy of Sublandlord, as
tenant under the Prime Lease, is or may be subordinate. Subtenant shall (except
as otherwise expressly provided in this Sublease) in no case have any rights
under this Sublease greater than Sublandlord's right as tenant under the Prime
Lease. The foregoing provisions shall be self-operative and no further
instrument of subordination shall be necessary to effectuate such provisions.
7.2 Except as otherwise expressly provided in this Sublease,
Subtenant shall keep, observe and perform for the benefit of the Prime Landlord
and Sublandlord, each and every term, provision, covenant, condition and
agreement on Sublandlord's part pertaining to the Premises which is required to
be kept, observed and performed pursuant to the Prime Lease and which arises or
accrues during the Term of this Sublease.
7.3 Except as otherwise expressly provided in this Sublease, the
terms, provisions, and conditions contained in the Prime Lease are incorporated
in this Sublease by reference, and are made a part hereof as if herein set forth
at length, Sublandlord being substituted for the "Landlord" under the Prime
Lease, Subtenant being substituted for the "Tenant" under the Prime Lease, and
Premises being substituted for "Demised Premises" under the Prime Lease. The
parties agree that the
<PAGE> 13
10
following provisions of the Prime Lease are not so incorporated herein by
reference: the second paragraph of Article First (Term), the fourth paragraph of
Article First (Rent), the first paragraph of Article Seventh (Assignment,
Mortgaging, Subletting, etc.), Article Fourteenth (Notices), Article
Twenty-Sixth (Work by Tenant), Article Twenty-Seventh, Article Twenty-Eighth
(Asbestos Removal), Article Thirtieth (Brokerage Commission), Article
Thirty-First (Extra Space), Article Thirty-Second (Security); Paragraph 1
(Demise of Additional Space, Term and Rent), Paragraph 8, Paragraph 10 (Work by
Tenant), Paragraph 11 (Brokerage Commission) and Paragraph 12 (Extra Space) of
the First Supplemental Indenture; all of the Second Supplemental Indenture;
Paragraph 1 (Demise of Additional Space, Terms and Rent), Paragraph 5 (Initial
Alteration by Tenant) and Paragraph 6 (Brokerage Indemnification) of the Third
Supplemental Indenture; and Paragraph 3 (Rent), and Paragraph 6 (Brokerage) of
the First Amendment.
7.4 The time limits set forth in the Prime Lease for the giving of
notices, making demands, performance of any act, condition or covenant, or the
exercise of any right, remedy or option, are changed for the purposes of
incorporation into this Sublease, by lengthening or shortening the same in each
instance, as appropriate, so that notices may be given, demands made, or any
act, condition or covenant performed, or any right, remedy or option hereunder
exercised, by Sublandlord or Subtenant, as the case may be (and each party
covenants that it will do so), within three (3) Business Days prior to the
expiration of the time limit (taking into account the maximum grace period, if
any, relating thereto) contained in the
<PAGE> 14
11
Prime Lease but in no event less than two (2) Business Days after notice or
demand by Sublandlord to Subtenant in cases involving the giving of notice or
making demand by Sublandlord to Subtenant hereunder. Each party shall promptly
deliver to the other party copies of all notices, requests or demands which
relate to the Premises or the use or occupancy thereof after receipt of same
from the Prime Landlord. In the case of any time limit described above which is
one or two days after the giving of the notice applicable thereto, such notice
shall be delivered personally as provided in Article 20 hereof. With respect to
any request for overtime services, Subtenant may make such request in
Sublandlord's name directly to the Prime Landlord, provided such request is made
in accordance with the terms of the Prime Lease and a duplicate copy of such
request is simultaneously given to Sublandlord.
7.5 Sublandlord shall have the same rights and remedies with respect
to a breach of this Sublease by Subtenant as the Prime Landlord has with respect
to a breach of the Prime Lease, as if the same were more fully set forth at
length herein, and Sublandlord shall have, with respect to Subtenant, this
Sublease and the Premises, all of the rights, powers, privileges and immunities
as are had by the Prime Landlord under the Prime Lease. Sublandlord herein shall
not be responsible for any breach of the Prime Lease by the Prime Landlord or
any non-performance or non-compliance with any provision thereof by the Prime
Landlord, but Sublandlord shall comply with the provisions of Article 11 hereof.
7.6 So long as this Sublease is in full force and effect,
Sublandlord covenants and agrees not to voluntarily cancel or surrender the
Prime
<PAGE> 15
12
Lease, except for a termination permitted under Article Ninth of the Prime Lease
(Damage by Fire, etc.) or Article Tenth (Condemnation), or consent to any
modification, amendment or supplement to the Prime Lease which will deprive
Subtenant of its rights or increase the obligations of Subtenant under this
Sublease, without the prior written consent of Subtenant. If the Prime Lease is
terminated for any reason whatsoever, whether by operation of law or otherwise,
except through the default of Sublandlord, Sublandlord shall not be liable in
any manner whatsoever for such termination. Sublandlord shall promptly forward
to Subtenant any default or termination notice with respect to the Prime Lease
received by Sublandlord and this Sublease shall terminate in the event of any
such termination of the Prime Lease.
8. Attornment.
If the Prime Lease and Sublandlord's leasehold interest in the Premises
shall be terminated, Subtenant shall, if so requested in writing by Prime
Landlord, attorn to Prime Landlord and shall, during the term of this Sublease,
perform all of the terms, covenants and conditions of this Sublease on the part
of Subtenant to be performed. In the event of any such attornment, Prime
Landlord shall not be (a) liable for any act or omission or default of any prior
sublessor (including, without limitation, Sublandlord); or (b) subject to any
offsets, claims, counterclaims or defenses which Subtenant might have against
any prior sublessor (including without limitation, Sublandlord); or (c) bound by
any rent or additional rent which Subtenant might have paid for more than the
current month to any prior sublessor (including,
<PAGE> 16
13
without limitation, Sublandlord); or (d) bound by any amendment or modification
of this Sublease made without Prime Landlord's consent; or (e) be obligated to
perform any work or to make improvements to the Premises; or (f) bound by any
obligation to make any payment to Subtenant other than payments in connection
with any tenant security deposit delivered by Sublandlord to Prime Landlord. The
foregoing shall be self-operative without the necessity of the execution of any
further instruments but Subtenant agrees, upon the demand of Prime Landlord, to
execute, acknowledge and deliver any instrument or instruments confirming such
attornment.
9. Quiet Enjoyment.
Sublandlord covenants that as long as Subtenant shall pay the Rent due
hereunder and shall duly perform all the terms, covenants and conditions of this
Sublease on its part to be performed and observed, Subtenant shall peaceably and
quietly have, hold and enjoy the Premises during the term hereof without
molestation or hindrance by Sublandlord, subject to the terms, provisions and
conditions of the Prime Lease and this Sublease.
10. Representations, Warranties and Covenants.
10.1 Sublandlord represents and warrants to Subtenant as follows
as of the date of execution and delivery of this Sublease:
(i) the Prime Lease is in full force and effect in
accordance with, and subject to, all of the terms, covenants, conditions and
agreements contained therein;
<PAGE> 17
14
(ii) the Prime Lease has not been modified, amended or
supplemented, except as set forth in Exhibit A attached hereto;
(iii) To the knowledge of Sublandlord, neither the Prime
Landlord nor the Sublandlord are in default under the Prime Lease and
Sublandlord has not received any notice of any default by the Sublandlord
under the Prime Lease;
(iv) Sublandlord has full right, power and authority to
enter into this Sublease;
(v) Sublandlord shall perform, in all material respects,
the obligations to be performed by it under the Prime Lease except to the extent
Subtenant is obligated to perform any such obligations pursuant to the terms of
this Sublease.
10.2 Subtenant hereby warrants and represents to Sublandlord
that Subtenant has full right, power and authority to enter into this Sublease.
11. Services and Repairs.
Notwithstanding anything to the contrary herein set forth, Subtenant agrees
that Sublandlord shall have no obligation to render or supply any services to
Subtenant, including, without limitation (a) the furnishing of electrical
energy, heat, ventilation, water, air conditioning, elevator service, cleaning,
window washing, or rubbish removal services, (b) making any alterations, repairs
or restorations with respect to the Premises, (c) complying with any laws or
requirements of any governmental authorities with respect to the Premises, or
(d) taking any action that
<PAGE> 18
15
Prime Landlord has agreed to provide, make, comply with, or take, or cause to be
provided, made, complied with, or taken under the Prime Lease (collectively,
"Services and Repairs"); provided, however, that, notwithstanding the foregoing,
if Prime Landlord is failing to provide Services or Repairs to the Premises that
it is obligated to provide to the Premises under the Prime Lease, and such
failure is affecting the conduct of Subtenant's business in the Premises,
Sublandlord shall use reasonable efforts and take such action as shall be
appropriate and reasonable under the circumstances to compel Prime Landlord to
comply with such obligations under the Prime Lease, subject to Article 12
hereof. Sublandlord hereby grants to Subtenant Sublandlord's rights under the
Prime Lease to receive from the Prime Landlord Services and Repairs to the
extent that Sublandlord is entitled (i) to receive same under the Prime Lease
and (ii) to grant same to Subtenant. Sublandlord shall in no event be liable to
Subtenant nor shall the obligations of Subtenant hereunder be impaired or the
performance thereof excused because of any failure or delay on the Prime
Landlord's part in furnishing Services and Repairs, unless such failure or delay
results from Sublandlord's default under the Prime Lease or under this Sublease
(which default is not resulting from or attributable to any default of Subtenant
under this Sublease).
12. Enforcement of Prime Lease.
If the Prime Landlord shall default in any of its obligations to
Sublandlord with respect to the Premises, Sublandlord shall not, except as and
to the extent set forth herein, be obligated to bring any action or proceeding
or to take any
<PAGE> 19
16
steps to enforce Sublandlord's rights against Prime Landlord other than, upon
the written request of Subtenant, making a demand upon the Prime Landlord to
perform its obligations under the Prime Lease with respect to the Premises. If
following the making of such demand and the expiration of any applicable grace
period granted to the Prime Landlord under the Prime Lease, the Prime Landlord
shall fail to perform its obligations under the Prime Lease, then at the written
request of Subtenant, Sublandlord shall take such action as shall be reasonable
and appropriate under the circumstances described by Subtenant in such written
request. Subtenant agrees to be responsible for the payment of all of the
out-of-pocket cost to Sublandlord of any such action, including, without
limitation, reasonable attorney's fees and disbursements, and hereby indemnifies
Sublandlord for any such cost.
13. Assignment, Subletting and Encumbrances.
13.1 Without the prior written consent of Sublandlord (which consent
shall not be unreasonably withheld or delayed) and the prior written consent of
Prime Landlord, Subtenant shall not (i) assign this Sublease (by operation of
law or otherwise), (ii) sublease all or any part of the Premises, (iii)
mortgage, pledge, hypothecate or otherwise encumber its interest in this
Sublease or the Premises or any interest therein, or (iv) grant any concession,
license or otherwise permit the Premises to be used or occupied by anyone other
than Subtenant. Any assignment, sublease, concession, license, occupancy, use,
mortgage, pledge, hypothecation or other encumbrance of or under this Sublease
without such prior written consent shall be invalid and without force and
effect.
<PAGE> 20
17
13.2 Any assignment of this Sublease, if consented to by
Sublandlord, shall be subject to and conditioned upon compliance with the
following terms and conditions:
(i) By written instrument of assignment and assumption, the
assignee shall assume and agree to perform and to comply with
all of the terms, conditions and agreements of this Sublease on the part of
Subtenant to be kept, performed and observed and to become jointly and severally
liable with the assignor for such performance and compliance;
(ii) A duplicate original of such instrument, in form
satisfactory to Sublandlord, duly acknowledged and executed by the
assignor and the assignee, shall be delivered to Sublandlord within five (5)
days following the date of execution thereof; and
(iii) The assignor shall assign all of its right, title,
interest and claim to any security deposited hereunder to the assignee.
13.3 Any subletting of the Premises or any part thereof, if
consented to by Sublandlord, shall be subject to and conditioned upon compliance
with the following terms and conditions:
(i) The sublease shall provide that it is subject and
subordinate to all of the provisions of this Sublease and all of the rights of
Sublandlord hereunder;
<PAGE> 21
18
(ii) The sublease shall expressly provide that the sublessee
shall use and occupy the Premises only for the permitted purposes set forth
herein and for no other purpose whatsoever; and
(iii) A duplicate original of the sublease, duly executed by
sublessor and sublessee, shall be delivered to Sublandlord within five (5) days
following the date of its execution.
13.4 If this Sublease is assigned, or if the Premises or any part
thereof is sublet or occupied by one other than Subtenant, whether or not
Subtenant shall have been granted any required consent, Sublandlord may, after
default by Subtenant, collect rent and other charges from such assignee,
Subtenant or other occupant, and apply the net amount collected to Rent and
other charges herein reserved, but no such assignment, subletting, occupancy or
collection shall be deemed to be a waiver of the requirements of this Article 13
or an acceptance of the assignee, subtenant or other occupant as subtenant under
this Sublease. The consent by Sublandlord to an assignment or subletting shall
not in any way be construed to relieve Subtenant from obtaining consent to any
further assignment or subletting. No assignment or subletting shall, in any way,
release, relieve or modify the liability of Subtenant under this Sublease and
Subtenant shall be and remain liable under all of the terms, conditions, and
covenants hereof.
13.5 If Subtenant shall at any time request the consent of
Sublandlord to any proposed assignment of this Sublease or subletting of all
or any portion of the Premises, Subtenant shall pay on demand the reasonable
costs and
<PAGE> 22
19
expenses incurred by Sublandlord and Prime Landlord, including, without
limitation, architect's, engineer's and reasonable attorneys' fees and
disbursements, in connection with any proposed or actual assignment of this
Sublease or subletting of the Premises or any part thereof.
14. Indemnification.
14.1 Sublandlord, Prime Landlord, their respective partners,
officers, directors, shareholders, employees, agents, contractors, licensees and
invitees, shall not be liable to Subtenant, its employees, agents, contractors,
licensees or invitees. Subtenant agrees, irrespective of whether Subtenant shall
be negligent, to indemnify, defend and save harmless, Sublandlord, Prime
Landlord and their respective partners, officers, directors, shareholders,
contractors, agents and employees (collectively, "Indemnified Parties") from and
against any and all liability (statutory or otherwise), claims, suits, demands,
damages, judgments, costs, fines, penalties, interest and expenses (including,
but not limited to, counsel fees and disbursements incurred in any action or
proceeding), to which any such Indemnified Party may be subject or suffer by
reason of any liability or claim for any injury to, or death of, any person or
persons or damage to property (including any loss of use thereof) or otherwise
arising from or in connection with the use and occupancy of the Premises or from
any work, installation or thing whatsoever done or omitted (other than by
Sublandlord or its contractors or the agents or employees of either) in the
Premises during the term of this Sublease and during the period of time, if any,
prior to the Commencement Date that Subtenant may have been given access to the
<PAGE> 23
20
Premises, or arising from any condition of the Premises due to or resulting any
default by Subtenant in the performance of Subtenant's obligations under this
Sublease or from any act, omission or negligence of Subtenant or any of
Subtenant's agents, contractors, servants, employees, subtenants, licensees,
guests or invitees; provided, however, that the foregoing indemnification shall
not apply to the extent any liability or claim results from the gross negligence
or willful misconduct of the Sublandlord or the Prime Landlord.
14.2 The provisions of this Article 14 shall survive the expiration
or earlier termination of this Sublease.
15. Alterations.
Subtenant shall make no alterations, installations, additions or
improvements (collectively, "Alterations') in or about the Premises without the
prior written consent of Prime Landlord and Sublandlord in each instance. Any
Alterations consented to by Prime Landlord and Sublandlord shall be performed by
Subtenant at its sole cost and expense and in compliance with all of the
provisions of the Prime Lease and also in compliance with other reasonable
requirements of Sublandlord and the requirements of Prime Landlord. Subtenant
shall be permitted to make non-structural Alterations to the Premises, subject
to the prior written consent of Prime Landlord and Sublandlord's prior written
consent, which consent as to Sublandlord shall not be unreasonably withheld or
delayed.
<PAGE> 24
21
16. Insurance.
16.1 Subtenant, at Subtenant's sole expense, shall maintain for the
benefit of Sublandlord and Prime Landlord such policies of insurance (and in
such form) as are required by the Prime Lease with respect to the Premises,
which policies shall be reasonably satisfactory to Sublandlord as to coverage
and insurer (which shall be licensed to do business in the State of New York),
provided that such insurance shall at a minimum include comprehensive general
liability insurance with a limit not less than Five Million ($5,000,000) dollars
protecting Sublandlord, Prime Landlord and Subtenant against all claims and
liabilities for injury or damage to persons or property occurring upon, in or
about the Premises, and the public portions of the Building, caused by or
resulting from or in connection with any act or omission of Subtenant,
Subtenant's employees, agents or invitees.
16.2 Nothing contained in this Sublease shall relieve Subtenant from
any liability as a result of damage from fire or other casualty, but Sublandlord
and Subtenant shall each look first to any insurance in its favor before making
any claim against the other party for recovery for loss or damage resulting from
fire or other casualty. To the extent that such insurance is in force and
collectible and to the extent permitted by law, Sublandlord and Subtenant each
hereby releases and waives all right to recovery against the other or anyone
claiming through or under the other by way of subrogation or otherwise. The
foregoing release and waiver shall be in force only if the insurance policies of
Sublandlord and Subtenant provide that such release or waiver does not
invalidate the insurance; each party agrees to use its best
<PAGE> 25
22
efforts to include such a provision in its applicable insurance policies. If the
inclusion of said provision would involve an additional expense, either party,
at its sole expense, may require such provision to be inserted in the other's
policy.
17. Destruction by Fire or Other Casualty; Condemnation.
17.1 If the Premises or the Building are partially or totally
damaged or destroyed by fire or other casualty, Subtenant shall have no right to
terminate this Sublease and this Sublease shall not be terminated by reason of
such casualty unless the Prime Lease is terminated by Sublandlord or the Prime
Landlord pursuant to the provisions of the Prime Lease. Sublandlord shall give
Subtenant prompt notice of any such termination. Any termination provided for in
this paragraph shall be effective on a date specified in such notice, which date
shall be not less than three (3) or more than thirty (30) days after such notice
is given unless otherwise provided in the Prime Lease.
17.2 If the Premises are partially or totally damaged by fire or
other casualty, Subtenant shall receive an abatement of Rent for such casualty
only to the extent that Sublandlord receives a corresponding abatement pursuant
to the terms of the Prime Lease.
17.3 If the Prime Lease is terminated as the result of a taking of
all or any portion of the Building by condemnation (or deed in lieu thereof),
this Sublease shall likewise terminate. In such event, Subtenant shall have no
claim to any share of the award, except, with the consent of Prime Landlord, to
file a claim for the value of its fixtures or for moving expenses. If the Prime
Landlord shall
<PAGE> 26
23
consent to the filing of such claim, Sublandlord agrees to and does hereby
assign to Subtenant the right to claim for all additions, improvements,
fixtures, etc. (trade fixtures) installed or paid for by Sublandlord and
Subtenant agrees to make claim for all said trade fixtures, in its name, in
addition to or as part of a claim for trade fixtures installed or paid for by
Subtenant, and Sublandlord and Subtenant agree to share in the award or
settlement in accordance with the amounts awarded or paid for items installed by
each, including interest; or, in the event the award or settlement is in a
single amount, then each shall share in the award or settlement in the
proportion that the total of each of the parties' installations bears to the
whole as determined by claimants' trade fixture appraiser in the appraisal
submitted in the condemnation proceeding. Sublandlord and Subtenant shall pay
the expenses of the litigation or settlement in proportion to their shares of
the award or payment. In the event Subtenant does not or is unable to claim for
trade fixtures, Sublandlord may make a claim in the name of Subtenant, as agent
for Subtenant, and Subtenant does hereby assign the award or payment to
Sublandlord for the purpose of collecting the award or payment to be distributed
in the same manner as described above. The foregoing shall be self-operative
without the necessity of the execution of any further instruments.
17.4 Subtenant waives the provisions of Section 227 of the New York
Real Property Law, which is superseded by the provisions of this Article 17.
<PAGE> 27
24
18. Security.
Subtenant will deposit with Sublandlord the sum of $59,793.75 (the
"Security"), such sum being equal to three (3) months Fixed Rent, when
Sublandlord delivers Prime Landlord's consent as security for the faithful
performance and observance by Subtenant of the terms, provisions and conditions
of this Sublease. Upon the written request of Subtenant, three (3) years after
the Commencement Date, the Security shall be reduced to $39,862.50, such sum
being equal to two (2) months Fixed Rent. It is agreed that in the event
Subtenant defaults in respect of any of the terms, provisions and conditions of
this Sublease, including, but not limited to, the payment of Rent, Sublandlord
may, after notice to Subtenant and the expiration of any applicable grace period
provided herein with respect to such default, use, apply or retain the whole or
any part of the security so deposited to the extent required for the payment of
any Rent or any other sum as to which Subtenant is in default or for any sum
which Sublandlord may expend or may be required to expend by reason of
Subtenant's default in respect of any of the terms, covenants and conditions of
this Sublease, including but not limited to, any damages or deficiency in the
re-letting of the Premises, whether such damages or deficiency accrued before or
after summary proceedings or other re-entry by Sublandlord. In any such event,
Subtenant shall promptly on demand deposit with Sublandlord so much of the
security as shall have been so expended so that Sublandlord shall at all times
have the full security deposit required hereunder. In the event that Subtenant
shall fully and faithfully comply with all of the terms, provisions, covenants
and conditions of this Sublease, the security shall be returned to Subtenant
after the date fixed as the end of the Sublease and after
<PAGE> 28
25
delivery of possession of the Premises to Sublandlord. Sublandlord shall deposit
the aforesaid security in a separate interest-bearing account in a bank located
within the State of New York, shall notify Subtenant of the location of such
bank, and, provided that Subtenant is not in default hereunder, shall pay the
interest earned on such account to Subtenant at least annually, less one (1 %)
per cent of the amount of such deposit as an administrative fee.
19. Broker.
Each party warrants and represents to the other party hereto that it has
not dealt with any brokers in connection with this Sublease, except that
Sublandlord has dealt with Newmark & Company Real Estate ("Newmark") and
Subtenant has dealt with The Lansco Corporation (together, Newmark and The
Lansco Corporation, the "Broker"). Sublandlord shall be responsible for the
commission due to the Broker in connection with this Sublease, pursuant to a
separate agreement. Each party hereby indemnifies and holds the other party
hereto harmless from any and all loss, damage, claim, liability, cost or expense
(including, but not limited to, reasonable attorneys' fees, expenses and court
costs) arising out of or in connection with any breach of the foregoing warranty
and representation. The provisions of this Article shall survive the expiration
or earlier termination of this Sublease.
20. Notices.
All notices, consents, approvals or other communications (collectively a
"Notice") required to be given under this Sublease or pursuant to law shall be
in writing and, unless otherwise required by law, shall be either personally
delivered
<PAGE> 29
26
(against a receipt), or sent by reputable overnight courier service, or given by
registered or certified mail, return receipt requested, postage prepaid,
addressed to the party which is to receive such Notice (attention: Edgar Dobie,
in the case of Notices to Sublandlord, and attention: President, with a copy to
Kane Kessler, P.C., 1350 Avenue of the Americas, New York, NY 10019, Attention:
Robert L. Lawrence, Esq., in the case of Notices to Subtenant) at its address
set forth on the first page hereof (provided, however, that after the
Commencement Date, Notices addressed to Subtenant shall be sent to the
Premises), or such other address as either may designate by Notice to the other.
Any Notice given pursuant hereto shall be deemed to have been received on
delivery, if personally delivered or delivered by reputable overnight courier
service, or three (3) Business Days after the mailing thereof if mailed in
accordance with the terms hereof, such mailing to be effected by depositing the
Notice in any post office, branch post office or official depository regularly
maintained by the United States Postal Service. A copy of all notices delivered
hereunder shall also be delivered to the Prime Landlord at the following
address: c/o Tishman Speyer Properties, L.P., 45 Rockefeller Plaza, New York,
New York 10111, Attention: General Counsel.
21. No Waivers.
Failure by either party in any instance to insist upon the strict
performance of any one or more of the obligations of the other party under this
Sublease, or to exercise any election herein contained, shall in no manner be or
be deemed to be a waiver by such party of any defaults or breaches hereunder or
of any
<PAGE> 30
27
of its rights and remedies by reason of such defaults or breaches, or a waiver
or relinquishment for the future of the requirement of strict performance of any
and all of the defaulting party's obligations hereunder. Further, no payment by
Subtenant or receipt by Sublandlord of a lesser amount than the correct amount
of Rent due hereunder shall be deemed to be other than a payment on account, nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment be deemed to effect or evidence an accord and satisfaction, and
Sublandlord may accept any checks or payments as made without prejudice to
Sublandlord's right to recover the balance or pursue any other remedy in this
Sublease or otherwise provided at law or in equity.
22. Consent.
22.1 Whenever in this Sublease it is provided that either party will
not unreasonably withhold its consent to any matter, such party shall also be
deemed to have agreed not to unreasonably delay such consent. Sublandlord shall
not be deemed to have unreasonably withheld or delayed its consent to any matter
if Prime Landlord's consent to the matter requested is required by the Prime
Lease and if Prime Landlord shall have withheld or delayed its consent to such
matter.
22.2 If either party shall request the other's consent and such
consent is withheld or delayed, such party shall not be entitled to any damages
by reason thereof (unless it is determined by a court of law that such consent
was delayed or withheld in bad faith), it being intended that the sole remedy
therefor shall be an action for specific performance or injunction and that such
remedy shall only be
<PAGE> 31
28
available where a party has agreed herein not to unreasonably withhold or delay
such consent or where, as a matter of law, such consent may not be unreasonably
withheld or delayed.
23. Miscellaneous.
23.1 This Sublease shall be governed by and construed in accordance
with the law of the State of New York without regard to the conflicts of law
principles thereof.
23.2 The section headings in this Sublease are inserted only as a
matter of convenience for reference and are not to be given any effect in
construing this Sublease.
23.3 If any of the provisions of this Sublease or the application
thereof to any person or circumstance shall, to any extent, held to be invalid
or unenforceable, the remainder of this Sublease shall not be affected thereby
and shall be valid and enforceable to the fullest extent permitted by law.
23.4 All of the terms and provisions of this Sublease shall be
binding upon and inure to the benefit of the parties hereto and their respective
permitted successors and assigns.
23.5 All prior negotiations and agreements relating to this Sublease
and the Premises are merged into this Sublease. This Sublease may not be
amended, modified or terminated, in whole or in part, nor may any of the
provisions be waived, except by a written instrument executed by the party
against whom
<PAGE> 32
29
enforcement of such amendment, modification, termination or waiver is sought and
unless the same is permitted under the terms and provisions of the Prime Lease.
23.6 This Sublease shall have no binding force and effect and shall
not confer any rights or impose any obligations upon either party unless and
until both parties have executed it and Sublandlord shall have obtained Prime
Landlord's written consent to this Sublease and delivered to Subtenant an
executed copy of such consent. Under no circumstances shall the submission of
this Sublease in draft form by or to either party be deemed to constitute an
offer for the subleasing of the Premises.
23.7 This Sublease and all the obligations of Subtenant to pay Rent
and perform all of its other covenants and agreements hereunder shall in no way
be affected, impaired, delayed or excused because Sublandlord is unable to
fulfill its obligations hereunder, either explicit or implicit, if Sublandlord
is prevented or delayed from so doing by reason of strikes or labor trouble or
by accident, adjustment of insurance or by any cause whatsoever reasonably
beyond Sublandlord's control.
23.8 Each and every right and remedy of Sublandlord under this
Sublease shall be cumulative and in addition to every other right and remedy
herein contained or now or hereafter existing at law or in equity, by statute or
otherwise.
23.9 At any time and from time to time each party hereto shall,
within ten (10) days after a written request by the other party, execute, .
acknowledge and deliver to the first party a written statement certifying (i)
that this
<PAGE> 33
30
Sublease has not been modified and is in full force and effect or, if modified,
that this Sublease is in full force and effect as modified, and specifying such
modifications, (ii) the dates to which the Fixed Rent and Additional Rent and
other charges have been paid, (iii) that to the best of such party's knowledge,
no default exists under this Sublease or, if any do exist, the nature of such
default and (iv) as to such other matters as the first party may reasonably
request.
23.10 Capitalized terms used but not otherwise defined
herein shall have the meaning ascribed thereto in the Prime Lease.
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as
of the day and year first above written.
THE REALLY USEFUL COMPANY, INC.
By: /s/ EDGAR DOBIE
----------------------------
Name: EDGAR DOBIE
Title: President
ABACUS DIRECT CORPORATION,
By: /s/ MARTIN A. WHITE
----------------------------
Name: Martin A. White
Title: Chairman & CEO
<PAGE> 34
EXHIBIT A
The Prime Lease
[attached hereto]
<PAGE> 35
Lease No.
ROCKEFELLER CENTER PROPERTIES,
Landlord,
TO
THE REALLY USEFUL COMPANY, INC.,
Tenant
LEASE
Dated July 15, 1992
One Rockefeller Plaza
Building
ROCKEFELLER CENTER PROPERTIES
1230 AVENUE OF THE AMERICAS
NEW YORK, N.Y. 10020
<PAGE> 36
LEASE, dated July 15, 1992 between ROCKEFELLER CENTER PROPERTIES, a
partnership, having an office at No. 1230 Avenue of the Americas, New York, N.Y.
10020 (herein called "the Landlord"), and THE REALLY USEFUL COMPANY, INC. , a
Delaware corporation, having an office at NO. 1633 Broadway, Suite 3801 New
York, N.Y. 10019
(herein called "the Tenant"),
WITNESSETH:
FIRST. DEMISE OF PREMISES, TERM AND RENT. The Landlord does hereby lease
and demise to the Tenant, and the Tenant does hereby hire and take from the
Landlord, subject and subordinate to the underlying leases and the underlying
mortgages (as defined in Article Thirteenth hereof), and upon and subject to the
covenants, agreements, terms, provisions and conditions of this Lease, for the
term hereinafter stated, the space(s) substantially as shown hatched on the
diagrams(s) attached hereto as Exhibit A and designated as "D" on the 15th Floor
of the building known as One Rockefeller Plaza (herein called "the Building"),
situated upon a plot of land (herein called "the Land"), and comprising a part
of Rockefeller Center (herein called "the Center"), in the Borough of Manhattan,
New York, N.Y., together with all fixtures, equipment, improvements,
installations and appurtenances which at the commencement of or during the term
of this Lease are thereto attached (except items not deemed to be included
therein and removable by the Tenant as provided in Article Fourth hereof); which
space(s), fixtures, equipment, improvements, installations and appurtenances are
herein sometimes called "the premises".
The term of this Lease shall commence on October 1, 1992 (subject to
Article Second hereof) or on such earlier date as the Tenant shall occupy the
space(s) above designated with the consent of the Landlord (such date for the
commencement of the term hereof being herein called "the term commencement
date") and shall end on September 30, 2002 or on such earlier date upon which
said term may expire or be terminated pursuant to any of the conditions of
limitation or other provisions of this Lease or pursuant to law.
The premises shall be used for the following, but no other, purpose,
namely: executive, administrative, general and clerical offices of a business or
businesses which are not prejudicial to the reputation of, nor reflect
unfavorably on, the Center so as to detract from it as a location for an
outstanding type of business occupancy, including activities incidental thereto.
The rent reserved under this Lease for the term hereof shall be and consist
of (a) fixed rent, at the following rate(s), namely: $111,740.00 per annum for
the period commencing on the term commencement date and ending on the day
preceding the fifth anniversary of the term commencement date; and $117,780.00
per annum thereafter, payable in equal monthly installments in advance on the
first day of each and every calendar month of the term hereof for which fixed
rent is reserved as aforesaid (except that, if the term commencement date shall
be
<PAGE> 37
2
other than the first day of a calendar month, the first monthly installment of
fixed rent, apportioned for the part month in question, shall be payable on the
term commencement date and except that the Tenant shall pay, upon the execution
of this Lease by the Tenant, $9,311.67 to be applied against the first
installment or installments of fixed rent coming due hereunder), plus (b) the
additional rent and the percentage rent (if any) hereunder payable as
hereinafter provided; all to be paid to the Landlord, at its office, or at such
other place or places as the Landlord shall designate to the Tenant, in lawful
money of the United States of America; provided, however that, notwithstanding,
the foregoing, the fixed rent payable hereunder shall be abated at the rate of
$111,740.00 per annum through the 150th day after the term commencement date.
The Tenant shall pay the fixed rent, additional rent and percentage rent
(if any) as and when the same shall become due and payable as herein
provided, without demand therefor, and without any setoff or deduction
whatsoever, and shall keep, observe and perform, and shall permit no violation
of, each and every of the covenants, agreements, terms, provisions and
conditions herein contained on the part of the Tenant to be kept, observed and
performed.
In determining the rentable area of any building in the Center or any
portion thereof pursuant to any provision of this Lease, the rentable area of
such building or such portion, as the case may be, shall be the rentable area
thereof in square feet determined in accordance with the Standard Method of
Floor Measurement for Office Buildings approved by The Real Estate Board of New
York, Inc., which became effective on April 16, 1968.
SECOND. COMPLETION AND OCCUPANCY. The Tenant has examined and shall accept
the premises in their existing condition and state of repair and understands
that no work is to be performed by the Landlord in connection therewith except
such work, if any, as the Landlord may be required to do by the terms hereof in
the layout or finish of the premises. If the Landlord shall be required by the
terms hereof to do any work in the layout or finish of the premises, the
Landlord, either through its own employees or through a contractor or
contractors to be engaged by it for such purpose, will proceed with due
dispatch, subject to delay by causes beyond its reasonable control and to the
vacating and surrendering of the premises by any present occupant thereof, to do
all of such work during regular working hours and will exercise all reasonable
efforts to complete all of such work not later than the specific date
hereinabove designated for the commencement of the term hereof. If the Landlord
is required by the terms hereof to do any such work without expense to the
Tenant and the cost of such work is increased due to any delay resulting from
any act or omission of the Tenant, its agents or employees, the Tenant shall pay
to the Landlord an amount equal to such increase in cost.
Unless otherwise specifically provided herein, if the premises shall not be
available for occupancy by the Tenant on the specific date hereinabove
designated for the commencement of the term hereof for any reason,
<PAGE> 38
3
including noncompletion by the Landlord of such work as it shall be required by
the terms hereof to do in connection with the layout or finish of the premises,
then this Lease shall not be affected thereby but, in such case, said specific
date shall be deemed to be postponed until the date when the premises shall be
available for occupancy by the Tenant, provided, however, that there shall be no
such postponement of said specific date for any period of delay in the
availability of the premises for occupancy by the Tenant which shall be due to
(a) any act or omission of the Tenant, its agents or employees, including,
without limitation, delays due to changes in or additions to any work to be done
by the Landlord as aforesaid or delays in submission of information, approving
working drawings or estimates or giving authorizations or approvals, (b) any
additional time for completion of such work which may be required because of the
inclusion in such work of any work which may hereinafter be defined as "Special
Work", or (c) the noncompletion by the Landlord of any work, whether in
connection with the layout or finish of the premises or otherwise, which the
Landlord is not required to do by the terms hereof until after the term
commencement date, it being understood that the Tenant shall have no claim
against the Landlord, and the Landlord shall have no liability to the Tenant, by
reason of any such postponement of said specific date. No part of the premises
shall be deemed unavailable for occupancy by the Tenant, nor shall any work
which the Landlord is obligated to perform in such part of the premises be
deemed incomplete for the purpose of any adjustment of fixed rent payable
hereunder, solely due to the noncompletion of details of construction,
decoration or mechanical adjustments which are minor in character and the
noncompletion of which does not materially interfere with the Tenant's use of
such part of the premises. Pursuant to Section 223-a of the Real Property Law of
the State of New York and notwithstanding any other law of like import now or
hereafter in force, the parties hereto expressly provide that, if the premises
are not available for occupancy by the Tenant on the term commencement date due
to any cause of the nature referred to in the preceding clause (a), (b) or (c)
of this paragraph, the Tenant, except with the consent of the Landlord, shall
not be entitled to possession of the premises until the same are available for
occupancy by the Tenant and there shall be no abatement of fixed rent by reason
thereof and the Tenant shall not have any claim against the Landlord nor any
right to rescind this Lease, and the Landlord shall have no liability to the
Tenant, by reason thereof.
The Tenant by entering into occupancy of any part of the premises shall be
conclusively deemed to have agreed that the Landlord, up to the time of such
occupancy, had performed all of its obligations hereunder with respect to such
part and that such part, except for latent defects and except for minor details
of construction, decoration and mechanical adjustment referred to above, was in
satisfactory condition as of the date of such occupancy, unless within 10 days
after such date the Tenant shall give notice to the Landlord specifying the
respects in which the same was not in such condition.
THIRD. USE OF PREMISES. The Tenant shall not, except with the prior consent
of the Landlord, use, or suffer or permit the use of, the premises or any part
thereof for any purpose other than the use hereinabove specifically mentioned,
provided, however, anything in this Lease to the contrary notwithstanding, that
the portions, if any, of the premises which are identified as toilets or utility
areas shall be used by the Tenant only for the purposes for which they are
designed and the portions, if any, of the premises which are identified as
storage areas shall be used only for storage purposes.
The Tenant shall not use, or suffer or permit the use of, the premises or
any part thereof in any manner or for any purpose or do, bring or keep anything,
or suffer or permit anything to be done, brought or kept, therein (including,
but not limited to, the installation or operation of any electrical, electronic
or other equipment) (i) which would violate any covenant, agreement, term,
provision or condition of this Lease or is unlawful or in contravention of the
Certificate of Occupancy for the Building, or (ii) which in the reasonable
judgment of the Landlord may in any way impair or interfere with any of the
Building services or the proper and economic heating, air conditioning, cleaning
or other servicing of the Building or the premises or impair or interfere with
the use of any of the other areas of the Building by, or occasion discomfort,
inconvenience or annoyance to, any of the other tenants of the Building or the
Center or impair the appearance of the Building; nor shall the Tenant use, or
suffer or permit the use of, the premises or any part thereof in any manner, or
do, or suffer or permit the doing of, anything therein or in connection with the
Tenant's business or advertising which, in the reasonable judgment of the
Landlord, may be prejudicial to the business of the Landlord or the reputation
of the Landlord, the Building or the Center or reflect unfavorably on the
Landlord, the Building or the Center or confuse or mislead the public as to any
connection or relationship between the Landlord and the Tenant.
Unless otherwise specifically provided in this Lease, the Tenant, except in
each case with the prior consent of the Landlord, will not use, or suffer or
permit the use of, the premises or any part thereof for any of the
<PAGE> 39
Rider "A" attached to and forming a part of Lease dated July 15, 1992 between
ROCKEFELLER CENTER PROPERTIES, as the Landlord and THE REALLY USEFUL COMPANY,
INC., as the Tenant.
<PAGE> 40
4
following purposes, whether or not incidental to the Tenant's business, namely:
(a) manufacturing of any kind, (b) broadcasting or the business of broadcasting
by wire or wireless of any programs or pictures of any sort, or for the sale of
apparatus or devices connected with the business of such broadcasting, (c) the
business of a commercial bank, a savings bank, a savings and loan association, a
building and loan association, a trust company or any other business which,
under the banking laws of the United States of America or the State of New York,
may be carried on only by persons, firms or corporations authorized so to do
under the provisions of such laws, (d) the business of a dealer or broker in, or
underwriter of, stocks, bonds or other securities of any kind whatsoever, (e)
the retail sale of any item whatsoever, (f) an auction of any kind, or (g) the
preparation, dispensation or consumption of food or beverages, except, that
parts of the premises may be used as a pantry and lunchroom for employees of the
Tenant and for the installation and operation of food and beverage vending
machines upon the condition in each case that (1) no cooking or other
preparation of food (other than the preparation of beverages) shall be done in
the premises, (2) no food or beverages will be kept or served in the premises in
a manner or under any conditions which shall be the occasion for fumes or odors
being emitted from, or detectable outside of, the premises, (3) such parts of
the premises shall be at all times maintained by the Tenant in a clean and
sanitary condition and free of refuse (including use of extermination services
whenever required), and (4) the Tenant will keep the plumbing and sanitary
systems and installations serving such parts of the premises to the points they
connect with the main vertical risers and stacks of the Building in a good state
of repair and operating condition.
If any governmental license or permit shall be required for the proper and
lawful conduct of any business or other activity carried on in the premises and,
if the failure to secure such license or permit would, in any way, affect the
Landlord, the Tenant shall procure and thereafter maintain such license or
permit, submit the same to inspection by the Landlord, and comply with the terms
and conditions thereof.
Neither the Tenant nor any occupant of the premises shall use the words
"Rockefeller", "Center" or "Radio City", or any combination or simulation
thereof, for any purpose whatsoever, including (but not limited to) as or for
any corporate, firm or trade name, trademark or designation or description of
merchandise or services, except that the foregoing shall not prevent the use, in
a conventional manner and without emphasis or display, of the words "Rockefeller
Center" and/or, where applicable, "Rockefeller Plaza" as part of the Tenant's
business address. Neither the Tenant nor any occupant of the premises shall use
the name of the Building or the name of the entity for which the Building is
named or any part or abbreviation (including initials) of either such name
except that the foregoing shall not prevent the use of the name of the Building
or any part thereof, in a conventional manner and without emphasis or display,
as a part of the Tenant's or such occupant's business address or by reference in
the ordinary course of its business.
FOURTH. FIXTURES, ETC., NOT TO BE REMOVED. All fixtures, equipment,
improvements and installations attached to, or built into, the premises at the
commencement of or during the term hereof, whether or not installed at the
expense of the Tenant or by the Tenant, shall be and remain part of the premises
and be deemed the property of the Landlord and shall not be removed by the
Tenant except as otherwise expressly provided in this Lease. All electric,
plumbing, heating, sprinkling, dumbwaiter, elevator, fixtures and outlets,
venetian blinds, partitions, railings, gates, doors, vaults, stairs, paneling
(including display cases and cupboards recessed in paneling), molding, shelving,
radiator enclosures, flooring, and ventilating, silencing, air conditioning and
cooling equipment shall be deemed to be included in such fixtures, equipment,
improvements and installations, whether or not attached to or built into the
premises. Anything hereinbefore in this Article contained to the contrary
notwithstanding, any fixture, equipment, improvement or installation furnished
and installed in any part of the premises (whether or not attached thereto or
built therein) at the sole expense of the Tenant (and with respect to which no
credit or allowance shall have been granted to the Tenant by the Landlord and
which was not furnished and installed in replacement of an item which the Tenant
would not be entitled to remove in accordance with this Article) may be removed
from the Building by the Tenant prior to the expiration of the term hereof with
respect to such part and, if and to the extent requested by the Landlord (either
prior to or not more than 30 days after such expiration), shall be removed from
the Building by the Tenant not later than such expiration unless such request is
made after such expiration (or is made prior to such expiration and the Tenant
acting with reasonable promptness is not able to so remove the same prior to
such expiration), in which event the same shall be so removed by the Tenant with
reasonable promptness after the receipt of such request. The cost of repairing
any damage to the premises or the Building arising from such removal shall be
paid by the Tenant upon demand. If any fixture, equipment, improvement or
installation which as aforesaid may or is required to be removed by the Tenant
is not so removed within the time above specified therefor, then the Landlord
may at its election deem that the same has been abandoned by the Tenant to the
Landlord, but no such election shall relieve the Tenant of its obligation to pay
the cost and expense of removing the same or the cost of repairing damage
arising from such removal.
All the perimeter walls of the premises, any balconies, terraces or roofs
adjacent to the premises (including any flagpoles or other installations on said
walls, balconies, terraces or roofs), and any space in and/or adjacent to the
premises used for shafts, stairways, stacks, pipes, conduits, ducts, mail
chutes, conveyors, electric or other utilities, sinks, fan rooms or other
Building and Center facilities, and the use thereof, as well as access thereto
through the premises (at and for such times as shall not unreasonably interfere
with the Tenant's business) for the purposes of such use and the operation,
improvement, replacement, addition, repair, maintenance or decoration thereof,
are expressly reserved to the Landlord.
<PAGE> 41
5
FIFTH. ELECTRIC CURRENT AND WATER. The Landlord shall furnish, through the
existing transmission facilities installed by it in the Building, alternating
electric current to the premises in such reasonable quantity as may be required
for the Tenant's ordinary use of the premises for the purposes herein specified.
Such alternating electric current shall be measured by a meter or meters
provided and installed by the Landlord at such location or locations as the
Landlord shall select and the Tenant shall pay to the Landlord, as billed by the
Landlord, at the end of each billing period of the public utility company then
supplying such alternating electric current to the Center an amount which shall
be the sum of (i) 109% of the product obtained by multiplying the actual number
of kilowatt hours of electric current consumed by the Tenant in such billing
period by a fraction having as its numerator the amount charged the Center by
said public utility for the total number of kilowatt hours consumed by the
Center in such billing period and as its denominator said total number of
kilowatt hours so consumed by the Center in such billing period, plus (ii) any
taxes applicable to the amount determined pursuant to the foregoing clause (i).
The Landlord may, at its option, upon not less than 30 days' prior notice
to the Tenant, discontinue the furnishing of electric current to the premises or
any part thereof and, in such event, the Tenant shall contract for the supplying
of such electric current thereto with the public service company supplying
electric current to the neighborhood and the Landlord shall permit its risers,
conduits and feeders serving the premises, to the extent available, suitable and
safely capable, to be used for the purpose of supplying such electric current.
If the Tenant shall require electric current for use in the premises in
excess of such reasonable quantity to be furnished as provided in this Lease and
if, in the Landlord's judgment, such excess requirements cannot be furnished
unless additional risers, conduits, feeders, switchboards and/or appurtenances
are installed in the Building, the Landlord, upon request of the Tenant, will
proceed with reasonable diligence to install such additional risers, conduits,
feeders, switchboards and/or appurtenances provided the same and the use thereof
shall be permitted by applicable laws and insurance regulations and shall not
cause permanent damage or injury to the Building or the premises or cause or
create a dangerous or hazardous condition or entail excessive or unreasonable
alterations or repairs or interfere with or disturb other tenants or occupants
of the Building, and the Tenant shall pay all costs and expenses incurred by the
Landlord in connection with such installation and shall maintain on deposit with
the Landlord such security for the payment by the Tenant of all such costs and
expenses as the Landlord shall from time to time request. The Tenant shall
purchase and install all lamps, starters and ballasts (including replacements
thereof) used in the lighting fixtures in the premises.
Water will be furnished by the Landlord for normal use in lavatory/pantry
and toilet facilities, if any, in the premises. Where any water is otherwise
furnished or any steam is furnished by the Landlord, the Tenant shall pay (i)
the cost of supplying, installing and maintaining a meter to measure the water
or steam so furnished, (ii) the reasonable charges of the Landlord for the water
or steam so furnished and, in the case of water, for any required pumping and
heating thereof, and (iii) any taxes, sewer rent or other charges which may be
imposed by any government or agency thereof based upon the quantity of water or
steam so furnished or the charge therefor.
The Landlord shall in no way be liable for any failure, inadequacy or
defect in the character or supply of electric current, water or steam furnished
to the premises except for actual damage suffered by the Tenant by reason of any
such failure, inadequacy or defect caused by the negligence of the Landlord.
SIXTH. VARIOUS COVENANTS. The Tenant shall:
(a) take good care of the premises, keep clean the portions of the
premises which the Landlord is not required by this Lease to clean, and pay
the cost of making good any injury, damage or breakage (including, without
limitation, the cost of removing stains from floors and walls) done by the
Tenant or by the employees, licensees or invitees of the Tenant, other than
any damage with respect to which the Tenant is released from liability
pursuant to the third paragraph of Article Ninth hereof;
(b) observe and comply with the rules and regulations annexed hereto
and such other and further reasonable rules and regulations as the Landlord
hereafter at any time may make and communicate to the Tenant, and which, in
the judgment of the Landlord, shall be necessary or desirable for the
reputation, safety, care or appearance of the Center, or the preservation
of good order therein, or the operation or maintenance of the Center, or
the equipment thereof, or the comfort of tenants or others in the Center',
provided, however, that in the case of any conflict between the provisions
of this Lease and any such rule or regulation, the provisions of this Lease
shall control;
<PAGE> 42
6
(c) permit (but, except in the case of an emergency, only upon request,
which may be oral, made to the Tenant or an employee of the Tenant at the
premises) the Landlord, any landlord under any of the underlying leases, any
mortgagee under any of the underlying mortgages and any other party designated
by the Landlord, and their respective representatives, to enter the premises at
such hours as shall not unreasonably interfere with the Tenant's business, for
the purposes of inspection and permit them or any of their agents or contractors
so to enter for the purpose of complying with any law, order or requirement of
any governmental authority or insurance body, or exercising any right reserved
to the Landlord under Article Eighth hereof or elsewhere by this Lease (it
being understood that the parties specified in this subparagraph (c) are
third-party beneficiaries of the covenants specified in this subparagraph in
the event of the Landlord's breach of any obligation it may have to any such
party to exercise a right of access on such party's behalf);
(d) make no claim against the Landlord or any landlord under any of the
underlying leases for any injury or damage to the Tenant or to any other person
or for any damage to, or loss (by theft or otherwise) of, or loss of use of,
any property of the Tenant or of any other person, irrespective of the cause of
such injury, damage or loss, unless caused by the negligence of the Landlord,
its agents, servants or employees, in the operation or maintenance of the
premises or the Building, it being understood that no property other than such
as might normally be brought upon or kept in the premises as an incident to the
reasonable use of the premises for the purposes herein specified will be
brought upon or kept in the premises;
(e) make no alteration, change, addition, improvement, repair or
replacement in, to, or about, the premises, and do no work in such connection,
without in each case the prior consent of the Landlord, and then only by workmen
and contractors, in accordance with plans and specifications, in a manner, upon
terms and conditions and at times, approved by the Landlord, and make no
contract for nor employ any labor in connection with the maintenance, cleaning
or other servicing of the premises without like consent, which consents and
approvals shall not be unreasonably withheld; pay as and when the same become
due and payable all charges incurred by it in connection with any thereof (it
being understood that any such consent or approval may be conditioned upon the
Landlord being furnished with such security as it shall reasonably determine to
be adequate to insure such payment) and pay to the Landlord its reasonable
charges for making such reviews and inspections as it may deem necessary or
desirable in connection with the consideration of the granting of, and
compliance with, any such consent or approval; if any notice or claim of any
lien be given or filed by or against the Building or the Land for any work,
labor or services performed in, or for any materials, products or equipment
used, furnished or manufactured for use therein or thereon or in connection
with the performance of any thereof, promptly discharge or remove the same by
payment, bonding or otherwise; and, notwithstanding any such consent or
approval, not permit the use of any contractors, workmen, labor, material or
equipment in the performance of any thereof if the use thereof, in the
Landlord's judgment, will disturb harmony with any trade engaged in performing
any other work, labor or service in or about the Building or the Center or
contribute to any labor dispute;
(f) not violate, or permit the violation of, any condition imposed by the
standard fire insurance policy issued for office buildings in the Borough of
Manhattan, New York, N. Y., and not do, suffer or permit anything to be done,
or keep, suffer or permit anything to be kept, in the premises, which would
increase the fire or other casualty insurance rate on the Building or property
therein, or which would result in insurance companies of good standing refusing
to insure the Building or any such property in amounts and against risks as
reasonably determined by the Landlord;
(g) permit (but only upon request, which may be oral, made to the Tenant
or an employee of the Tenant at the premises) the Landlord to show the premises
at reasonable times during Business Hours (as hereinafter defined) to any
lessee, or any prospective purchaser, lessee, mortgagee or assignee of any
mortgage, of the Building and/or the Land or of the Landlord's interest
therein, and their representatives, and during the period of 12 months next
preceding the date of expiration of the term hereof with respect to any part of
the premises similarly show such part to any person contemplating the leasing
of all or a portion of the same;
(h) at the expiration or any earlier termination of the full term hereof
with respect to any part of the premises, terminate its occupancy of, and quit
and surrender to the Landlord, such part of the premises broom- clean and in as
good condition as it was at the commencement of such term, except for (1)
ordinary wear and tear, and (2) loss or damage by fire or other casualty which
shall not have been occasioned by the fault of the Tenant or with respect to
which the Tenant is released from liability pursuant to the third paragraph of
Article Ninth hereof;
(i) at any time and from time to time upon not less than 10 days' prior
notice by the Landlord execute, acknowledge and deliver to the Landlord a
statement of the Tenant (or if the Tenant is a
<PAGE> 43
7
corporation, an appropriate officer of the Tenant) certifying that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and
stating the modifications), and the dates to which the fixed rent,
percentage rent (if any) and additional rent have been paid in advance, if
any, and stating whether or not to the best knowledge of the signer of such
certificate the Landlord is in default in the keeping, observance or
performance of any covenant, agreement, term, provision or condition
contained in this Lease and, if so, specifying each such default of which
the signer may have knowledge, it being intended that any such statement
may be relied upon by any landlord under any underlying lease or any lessee
or mortgagee, or any prospective purchaser, lessee, mortgagee or assignee
of any mortgage, of the Building and/or the Land or of the Landlord's
interest therein; and
(j) indemnify, and save harmless, the Landlord, its officers,
directors, agents and employees, and any landlord under any of the
underlying leases (herein collectively called "the Indemnities") from and
against all liability (statutory or otherwise), claims, suits, demands,
damages, judgments, costs, interest and expenses (including counsel fees
and disbursements incurred in the defense thereof) to which any Indemnitee
may (except insofar as it arises solely out of the negligence of any such
Indemnitee in the operation and maintenance of the Building) be subject or
suffer whether by reason of, or by reason of any claim for, any injury to,
or death of, any person or persons or damage to property (including any
loss of use thereof) or otherwise arising from or in connection with the
use of, or from any work or thing whatsoever done in, any part of the
premises (other than by the Landlord or its contractors) during the term of
this Lease with respect to such part or during the period of time, if any,
prior to the commencement of such term that the Tenant may have been given
access thereto for the purpose of doing work or otherwise, or arising from
any condition of the premises due to or resulting from any default by the
Tenant in the keeping, observance or performance of any covenant,
agreement, term, provision or condition contained in this Lease or from any
act or negligence of the Tenant or any of its officers, directors, agents,
contractors, servants, employees, licensees or invitees.
SEVENTH. ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. Except as may be
otherwise specifically provided in this Lease, the Tenant covenants and agrees,
for the Tenant and its successors, assigns and legal representatives, that
neither this Lease nor the term and estate hereby granted, nor any part hereof
or thereof, will be assigned, mortgaged, pledged, encumbered or otherwise
transferred, and that neither the premises, nor any part thereof, will be
encumbered in any manner by reason of an act or omission on the part of the
Tenant, or will be used or occupied, or permitted to be used or occupied, or
utilized for desk space, for mailing privileges or as a concession, by anyone
other than the Tenant, or will be sublet, or offered or advertised for
subletting, without the prior consent of the Landlord in every such case
provided, however, that, if the Tenant is a corporation, (a) the assignment or
transfer of this Lease, and the term and estate hereby granted, to any
corporation into which the Tenant is merged or with which the Tenant is
consolidated (such corporation being hereinafter in this Article called "the
Assignee") without the prior consent of the Landlord shall not be deemed to be
prohibited hereby if, and upon the express condition that, the Assignee shall
have executed and delivered to the Landlord an agreement in form and substance
satisfactory to the Landlord whereby the Assignee shall agree to be personally
bound by and upon all the covenants, agreements, terms, provisions and
conditions set forth in this Lease on the part of the Tenant to be kept,
observed or performed, and whereby the Assignee shall expressly agree that the
provisions of this Article shall, notwithstanding such assignment or transfer,
continue to be binding upon it with respect to all future assignments and
transfers, and (b) the Tenant may, subject to the covenants, agreements, terms,
provisions and conditions of this Lease, permit the premises to be used and
occupied for the purposes herein specified by any subsidiary or affiliate of the
Tenant without the prior consent of the Landlord.
The Landlord will, at the request of the Tenant, maintain listings on the
Building directory of the names of the Tenant and any other person, firm or
corporation in occupancy of the premises or any part thereof as permitted
hereunder, and the names of any officers or employees of any of the foregoing,
provided, however, that the number of names so listed shall be in the same
proportion to the capacity of the Building directory as the aggregate number of
square feet of rentable area of the premises is to the aggregate number of
square feet of rentable area of the Building. The listing of any name other than
that of the Tenant, whether on the doors or windows of the premises, on the
Building directory, or otherwise, shall not operate to vest any right or
interest in this Lease or in the premises or be deemed to be the consent of the
Landlord mentioned in this Article, it being expressly understood that any such
listing (other than a listing conforming with the next preceding sentence
hereof) is a privilege extended by the Landlord revocable at will by notice to
the Tenant.
<PAGE> 44
Rider "B" attached to and forming a part of Lease dated July 15, 1992 between
ROCKEFELLER CENTER PROPERTIES, as the Landlord and THE REALLY USEFUL COMPANY,
INC., as the Tenant.
Also if the premises or a part thereof are rendered untenantable as a result of
such damage by fire or other casualty (including untenantability due to lack of
access thereto) and such damage is not repaired by the Landlord within 1 year
after the occurrence thereof, then this Lease and the term and estate hereby
granted may be terminated by the Tenant by its giving to the Landlord within 60
days after the end of such 1 year period notice specifying a date, not more than
30 days after the giving of such notice, for such termination.
<PAGE> 45
8
EIGHTH. CHANGES OR ALTERATIONS BY LANDLORD. The Landlord reserves the right
to make such changes, alterations, additions, improvements, repairs or
replacements in or to the Building (including the premises) and the fixtures and
equipment thereof, as well as in or to the street entrances, halls, passages,
elevators, escalators and stairways and other parts of the Building and the
Center, and to erect, maintain and use pipes, ducts and conduits in and through
the premises, all as it may reasonably deem necessary or desirable; provided,
however, that there be no unreasonable obstruction of the means of access to the
premises or unreasonable interference with the use of the premises. Nothing
contained in this paragraph or in Article Sixth hereof shall be deemed to
relieve the Tenant of any duty, obligation or liability of the Tenant with
respect to making any repair, replacement or improvement or complying with any
law, order or requirement of any governmental or other authority.
The Landlord reserves the right to change the name or address of the
Building at any time. Neither this Lease nor any use by the Tenant shall give
the Tenant any right or easement to the use of any door or any passage
connecting the Building with any subway or any other building or to the use of
any public conveniences, and the use of such doors, passages and conveniences
may be regulated or discontinued at any time by the Landlord.
NINTH. DAMAGE BY FIRE, ETC. If any part of the premises shall be damaged by
fire or other casualty, the Tenant shall give prompt notice thereof to the
Landlord and the Landlord shall proceed with reasonable diligence to repair such
damage, and if any part of the premises shall be rendered untenantable by reason
of such damage, the annual fixed rent payable hereunder, to the extent that such
fixed rent relates to such part of the premises and such abatement is in excess
of the annual rate of any other existing abatement of fixed rent relating
thereto under any other covenant, agreement, term, provision or condition of
this Lease, shall be abated for the period from the date of such damage to the
date when such part of the premises shall have been made tenantable or to such
earlier date upon which the full term of this Lease with respect to such part of
the premises shall expire or terminate, unless (a) the Landlord shall make
available to the Tenant, during the period of such repair, other space in the
Center reasonably suitable for the temporary carrying on of the Tenant's
business, or (b) such fire or other casualty shall have resulted from the
negligence of the Tenant or the employees, licensees or invitees of the Tenant.
The Landlord shall not be liable for any inconvenience or annoyance to the
Tenant or injury to the business of the Tenant resulting in any way from such
damage or the repair thereof. The Tenant understands that the Landlord will not
carry insurance of any kind on the Tenant's goods, furniture or furnishings or
on any fixtures, equipment, improvements, installations or appurtenances
removable by the Tenant as provided in this Lease, and that the Landlord shall
not be obligated to repair any damage thereto or replace the same.
If substantial alteration or reconstruction of the Building shall, in the
opinion of the Landlord, be reasonably required as a result of damage by fire or
other casualty (whether or not the premises shall have been damaged by such fire
or other casualty), then this Lease and the term and estate hereby granted may
be terminated by the Landlord by its giving to the Tenant within 60 days after
the date of such damage a notice specifying a date, not less than 30 days after
the giving of such notice, for such termination (See Rider B attached to this
Lease). In the event of the giving of such notice of termination, this Lease and
the term and estate hereby granted shall expire as of the date specified
therefor in such notice with the same effect as if such date were the date
hereinbefore specified for the expiration of the full term of this Lease, and
the fixed rent payable hereunder shall be apportioned as of such date of
termination, subject to abatement, if any, as and to the extent above provided.
Nothing herein contained shall relieve the Tenant from any liability to the
Landlord or to its insurers in connection with any damage to the premises or the
Building by fire or other casualty if the Tenant shall be legally liable in such
respect, except, however, that the Landlord hereby releases the Tenant with
respect to any liability which the Tenant might otherwise have to the Landlord
for any damage to the Building or the premises by fire or other casualty
occurring during the term of this Lease to the extent of the proceeds received
under a policy or policies of insurance permitting such release by the Landlord
of such liability on the part of the Tenant. Whenever the Landlord elects to
insure the Building against fire or other casualty in an amount determined by,
and under terms and conditions acceptable to, the Landlord and with an insurer
selected by the Landlord, the Landlord will cause the policy evidencing such
insurance to include a provision permitting such a release of liability if such
a provision is obtainable from such insurer at no additional expense to the
Landlord.
<PAGE> 46
Rider 'C' attached to and forming a part of Lease dated July 15, 1992 between
ROCKEFELLER CENTER PROPERTIES, as the Landlord and THE REALLY USEFUL COMPANY,
INC., as the Tenant.
Notwithstanding anything else in this paragraph, the Tenant may claim and seek
recovery from the condemning authority of a separate award for the Tenant's
moving expenses, business dislocation damages, the Tenant's personal property
and fixtures, the unamortized costs of leasehold improvements paid for by the
Tenant, and any other award that would not substantially reduce the award
payable to the Landlord.
<PAGE> 47
9
This Lease shall be considered an express agreement governing any case of
damage to or destruction of, or any part of, the Building or the premises by
fire or other casualty, and Section 227 of the Real Property Law of the State of
New York providing for such a contingency in the absence of express agreement,
and any other law of like import now or hereafter in force, shall have no
application in such case.
TENTH. CONDEMNATION. In the event that the whole of the premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use,
this Lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title in such condemnation or taking. In
the event that only a part of the premises shall be so condemned or taken, then
the term and estate hereby granted with respect to such part of the premises
shall forthwith cease and terminate as of the date of vesting of title in such
condemnation or taking and the annual fixed rent payable hereunder, to the
extent that such fixed rent relates to such part of the premises and such
abatement is in excess of the annual rate of any other existing abatement of
fixed rent relating thereto under any other covenant, agreement, term, provision
or condition of this Lease, shall be abated for the period from the date of such
vesting of title to the date specified in this Lease for the expiration of the
full term of this Lease with respect to such part of the premises. In the event
that only a part of the Building shall be so condemned or taken, then (a) if
substantial alteration or reconstruction of the Building shall, in the opinion
of the Landlord, be necessary or desirable as a result of such condemnation or
taking (whether or not the premises be affected), this Lease and the term and
estate hereby granted may be terminated by the Landlord by its giving to the
Tenant, within 60 days following the date on which the Landlord shall have
received notice of such vesting of title, notice specifying a date, not less
than 30 days after the giving by the Landlord of such notice, for such
termination, and (b) if such condemnation or taking shall be of a substantial
part of the premises or of a substantial part of the means of access thereto,
this Lease and the term and estate hereby granted may be terminated by the
Tenant by its giving to the Landlord, within 60 days following the date upon
which the Tenant shall have received notice of such vesting of title, notice
specifying a date, not less than 30 days after the giving by the Tenant of such
notice, for such termination, or (c) if neither the Landlord nor the Tenant
elects to terminate this Lease, as aforesaid, this Lease shall be and remain
unaffected by such condemnation or taking, except that this Lease and the term
and estate hereby granted with respect to the part of the premises so condemned
or taken shall expire on the date of such vesting of title to such part and
except that the fixed rent payable hereunder shall be abated to the extent, if
any, hereinabove provided in this Article. In the event that only a part of the
premises shall be so condemned or taken and this Lease and the term and estate
hereby granted with respect to the remaining portion of the premises are not
terminated as hereinbefore provided, the Landlord will proceed with reasonable
diligence to restore the remaining portion of the premises as nearly as
practicable to the same condition as it was in prior to such condemnation or
taking.
The termination of this Lease and the term and estate hereby granted in any
of the cases hereinabove provided shall be with the same effect as if the date
of such termination were the date hereinbefore specified for the expiration of
the full term of this Lease, and the fixed rent payable hereunder shall be
apportioned as of such date of termination.
In the event of any condemnation or taking hereinabove mentioned of all or
a part of the Building, the Landlord shall be entitled to receive the entire
award in the condemnation proceeding, including any award made for the value of
the estate vested by this Lease in the Tenant, and the Tenant hereby expressly
assigns to the Landlord any and all right, title and interest of the Tenant now
or hereafter arising in or to any such award or any part thereof, and the Tenant
shall be entitled to receive no part of such award; provided, however, that
nothing herein contained shall be deemed to preclude the Tenant from intervening
for the Tenant's own interest in any such condemnation proceeding to claim or
receive from the condemning authority any compensation to which the Tenant may
otherwise lawfully be entitled in such case in respect of property removable by
the Tenant under Article Fourth hereof. (See Rider 'C' attached to this Lease)
The provisions of this Article shall not be applicable to any condemnation
or taking for governmental occupancy for a limited period.
ELEVENTH. COMPLIANCE WITH LAWS. The Tenant shall comply with all laws and
ordinances, and all rules, orders and regulations of all governmental
authorities and of all insurance bodies, at any time duly issued and in force,
applicable to the premises or any part thereof, to the Tenant's use thereof or
to the Tenant's keeping, performance or observance of any covenant, agreement,
term, provision or condition of this Lease, except that the Tenant shall not be
under any obligation to comply with any law, ordinance, rule, order or
regulation
<PAGE> 48
10
requiring any structural alteration of or in connection with the premises solely
by reason of the use thereof for any of the purposes specified in Article First
hereof and not by reason of either (i) a condition which has been created by, or
at the instance of, the Tenant, or (ii) a breach of any covenant, agreement,
term, provision or condition hereof on the part of the Tenant to be kept,
observed or performed. Where any structural alteration of or in connection with
the premises is required by any such law, ordinance, rule, order or regulation,
and, by reason of the express exception hereinabove contained, the Tenant is not
under any obligation to make such alteration, then the Landlord shall make such
alteration if the expense of making the same is not in excess of 50% of the
annual rate of fixed rent then payable under this Lease or, if the expense of
making such alteration is in excess threof, the Landlord shall have the option
of making such alteration or of terminating this Lease and the term and estate
hereby granted by giving to the Tenant not less than 30 days' prior notice of
such termination; provided, however, that, if within 15 days after the giving by
the Landlord of its notice of termination as aforesaid, the Tenant shall request
the Landlord to make such alteration at the cost and expense of the Tenant, then
such notice of termination shall be ineffective and, in such case, the Landlord
shall proceed with reasonable diligence to make such alteration and the Tenant
agrees to pay to the Landlord all costs and expenses incurred by the Landlord in
making such alteration to the extent that such costs and expenses are in excess
of 50% of the annual rate of the fixed rent then payable under this Lease and to
maintain on deposit with the Landlord such security for the payment by the
Tenant of all such costs and expenses as the Landlord shall from time to time
request.
In the event that a notice of termination shall be given by the Landlord
under the provisions of this Article and such notice shall not become
ineffective as hereinabove provided, this Lease and the term and estate hereby
granted shall terminate as of the date specified therefor in such notice with
the same effect as if such date were the date hereinbefore specified for the
expiration of the full term of this Lease, and the fixed rent payable hereunder
shall be apportioned as of such date of termination.
TWELFTH. ACCIDENTS TO SANITARY AND OTHER SYSTEMS. The Tenant shall give to
the Landlord prompt notice of any damage to, or defective condition in, any part
or appurtenance of the Building's sanitary, electrical, heating, air
conditioning, ventilating or other systems serving, located in, or passing
through, the premises. Any such damage or defective condition shall be remedied
by the Landlord with reasonable diligence, but if such damage or defective
condition (other than any such damage with respect to which the Tenant is
relieved from liability pursuant to the third paragraph of Article Ninth
hereof) was caused by the negligence, or by the negligent use by, the Tenant or
by the employees, licensees or invitees of the Tenant, or is with respect to any
fixture, equipment, improvement or installation removable by the Tenant as
provided in Article Fourth hereof, the cost of the remedy thereof shall be paid
by the Tenant upon demand. The Tenant shall not be entitled to claim any damages
against the Landlord arising from any such damage or defective condition unless
the same shall have been caused by the negligence of the Landlord in the
operation or maintenance of the premises or the Building and the same shall not
have been remedied by the Landlord with reasonable diligence after notice
thereof from the Tenant to the Landlord; nor shall the Tenant be entitled to
claim any damages against any other party (including, without limitation, any
third party vendor or other supplier of services to the Landlord) arising from
any such damage or defective condition unless the same shall have been caused by
the negligence of such party in the operation or maintenance of the premises or
the Building and the same shall not have been remedied by such party with
reasonable diligence after notice thereof; nor shall the Tenant be entitled to
claim any eviction by reason of any such damage or defective condition unless
the same shall have been caused by the negligence of the Landlord in the
operation or maintenance of the premises or the Building and shall not have been
made tenantable by the Landlord within a reasonable time after notice thereof
from the Tenant to the Landlord.
THIRTEENTH. MORTGAGE SUBORDINATION, UNDERLYING LEASES AND ATTORNMENT. This
Lease and the term and estate hereby granted are and shall be subject and
subordinate to the lien of each mortgage which may now or at any time hereafter
affect the Building and/or the Land, or the Landlord's interest therein (all
such mortgages being collectively called "the underlying mortgages"). If the
Land is leased by the Landlord from RCP Associates, a partnership, as successor
in interest to The Trustees of Columbia University in the City of New York
pursuant to a lease dated October 1, 1928, as heretofore amended, this Lease and
the term and estate hereby granted are and shall be subject and subordinate to
said lease as so amended and to each agreement hereafter made modifying,
supplementing, extending or renewing said lease. If any part of the premises is
situated in the building known as 600 Fifth Avenue, this Lease and the term and
estate hereby granted are and shall be subject and subordinate to the lease
dated August 23, 1949 from The Minister, Elders and Deacons of The Reformed
Protestant Dutch Church of the City of New York to Massachusetts Mutual Life
Insurance Company and to the lease dated June 16, 1949 from the Landlord to said
Massachusetts Mutual Life Insurance Company as each of said leases has been
heretofore amended (the Landlord being the successor in interest to said
Massachusetts Mutual Life Insurance Company under each of said leases) and to
each agreement hereafter
<PAGE> 49
11
made modifying, supplementing, extending or renewing either of said leases. If
any part of the premises is situated in the building known as 75 Rockefeller
Plaza, this Lease and the term and estate hereby granted are and shall be
subject and subordinate to the lease dated October 18, 1977 from 75 Plaza
Limited, N.V. to the Landlord, as heretofore amended, and to each agreement
hereafter made modifying, supplementing, extending or renewing said lease. All
of said leases as so modified, supplemented, extended and renewed are herein
collectively called "the underlying leases". If any part of the premises is
situated in the building known as 30 Rockefeller Plaza and 1250 Avenue of the
Americas, this Lease and the term and estate hereby granted are and shall be
subject and subordinate to the Declaration Establishing a Plan for Condominium
Ownership of The Rockefeller Center Tower Condominium (and the by-laws annexed
thereto) dated as of December 1, 1988, as the same may have been or may
hereafter be amended. The foregoing provisions for the subordination of this
Lease and the term and the estate hereby granted shall be self-operative and no
further instrument shall be required to effect any such subordination; but the
Tenant shall, however, upon request by the Landlord, at any time or times
execute and deliver any and all instruments that may be necessary or proper to
effect such subordination or to confirm or evidence the same, and in the event
that the Tenant shall fail to execute and deliver any such instrument the
Landlord, in addition to any other remedies, may, as the agent or
attorney-in-fact of the Tenant, execute and deliver the same, and the Tenant
hereby irrevocably constitutes and appoints the Landlord the Tenant's agent and
attorney-in-fact for such purpose. If the Landlord's interest in the Building or
the Land shall be sold or conveyed to any person, firm or corporation upon the
exercise of any remedy provided for in any underlying mortgage or by law or
equity, such person, firm or corporation and each person, firm or corporation
thereafter succeeding to its interest in the Building or the Land (i) shall not
be liable for any act or omission of the Landlord under this Lease occurring
prior to such sale or conveyance, (ii) shall not be subject to any offset,
defense or counterclaim accruing prior to such sale or conveyance, and (iii)
shall not be bound by any payment prior to such sale or conveyance of fixed
rent, percentage rent (if any) or additional rent for more than one month in
advance (except prepayments in the nature of security for the performance by the
Tenant of its obligations hereunder).
If this Lease and the term and estate hereby granted are subject and
subordinate to any underlying lease, then the Tenant hereby agrees (a) that it
will attorn to the lessor under said underlying lease effective as of the
expiration or earlier termination of the term of said underlying lease and will
recognize said lessor as the Landlord under this Lease, and (b) that,
notwithstanding such expiration or earlier termination of the term of said
underlying lease, this Lease shall continue for the balance of the term hereof
in accordance with its covenants, agreements, terms, provisions and conditions.
FOURTEENTH. NOTICES. Any notice, consent, approval, request, communication,
bill, demand or statement provided for hereunder by either party to the other
party shall be in writing and shall be deemed to have been duly given if
delivered personally to such other party or mailed in a postpaid envelope
(registered, certified or otherwise, with or without return receipt) addressed
to such other party, which address for the Landlord shall be as above set forth
and for the Tenant shall be the premises (or the Tenant's address as above set
forth if mailed prior to the Tenant's occupancy of the premises), or if the
address of such other party for notices shall have been duly changed as
hereinafter provided, if so mailed to such other party at such changed address.
Either party may at any time change the address for such notices, consents,
approvals, requests, communications, bills, demands or statements by delivering
or mailing, as aforesaid, to the other party a notice stating the change and
setting forth the changed address. If the term "Tenant" as used in this Lease
refers to more than one person, any notice, consent, approval, request,
communication, bill, demand or statement given as aforesaid to any one of such
persons shall be deemed to have been duly given to the Tenant.
FIFTEENTH. CONDITIONS OF LIMITATION. This Lease and the term and estate
hereby granted are subject to the limitation that:
(a) in case the Tenant shall default in the payment of any fixed rent,
additional rent or percentage rent (if any) on any date upon which the same
becomes due, or shall default in furnishing to the Landlord any statement
required to be furnished by the Tenant to the Landlord for use as a basis
in computing any percentage rent payable hereunder, and any such default
shall continue for 10 days after the Landlord shall have given to the
Tenant a notice specifying such default,
(b) in case the Tenant shall default in the due keeping, observance or
performance of any covenant, agreement, term, provision or condition of
Article Third or of subparagraph (e) or (f) of Article Sixth hereof
<PAGE> 50
12
on the part of the Tenant to be kept, observed or performed and if such
default shall continue and shall not be remedied by the Tenant within three
days after the Landlord shall have given to the Tenant a notice specifying
the same,
(c) in case the Tenant shall default in the due keeping, observance or
performance of any covenant, agreement, term, provision or condition of
this Lease (other than a default of the character referred to in
subparagraph (a) or,(b) of this Article), and if such default shall
continue and shall not be remedied by the Tenant within 30 days after the
Landlord shall have given to the Tenant a notice specifying the same, or,
in the case of such a default which for causes beyond the Tenant's control
cannot with due diligence be cured within said period of 30 days, if the
Tenant (i) shall not, promptly upon the giving of such notice, give the
Landlord notice of the Tenant's intention to duly institute all steps
necessary to remedy such default, (ii) shall not duly institute and
thereafter diligently prosecute to completion all steps necessary to remedy
the same, or (iii) shall not remedy the same within a reasonable time after
the date of the giving of said notice by the Landlord,
(d) in case any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance of
the full term hereof would, by operation of law or otherwise, devolve upon
or pass to any person, firm or corporation other than the Tenant except as
permitted under Article Seventh hereof, or whenever the Tenant shall desert
or abandon the premises or the same shall become vacant (whether the keys
be surrendered or not and whether the rent be paid or not), or
(e) in case any other lease held by the Tenant from the Landlord shall
expire or terminate (whether or not the term thereof shall then have
commenced) as a result of the default of the Tenant thereunder or of the
occurrence of an event as therein provided (other than by expiration of the
full term thereof or pursuant to a cancellation or termination option
therein contained or pursuant to provisions similar to those contained in
the first sentence of Article Tenth hereof),
then in any of said cases the Landlord may give to the Tenant a notice of
intention to end the term of this Lease at the expiration of 5 days from the
date of the giving of such notice, and, in the event such notice is given, this
Lease and the term and estate hereby granted (whether or not the term shall
theretofore have commenced) shall terminate upon the expiration of said 5 days
with the same effect as if the last of said 5 days were the date hereinbefore
set for the expiration of the full term of this Lease, but the Tenant shall
remain liable for damages as provided in this Lease or pursuant to law. If this
Lease shall have been assigned, the term "Tenant", as used in subparagraphs (a)
to (e), inclusive, of this Article, shall be deemed to include the assignee and
the assignor or either of them under any such assignment unless the Landlord
shall, in connection with such assignment, release the assignor from any further
liability under this Lease, in which event the term "Tenant", as used in said
subparagraphs, shall not include the assignor so released.
SIXTEENTH. RE-ENTRY BY LANDLORD. If this Lease shall terminate as in
Article Fifteenth hereof provided, or if the Tenant shall default in the payment
of any fixed rent, additional rent or percentage rent (if any) on any date upon
which the same becomes due, and if such default shall continue for 10 days after
the Landlord shall have given to the Tenant a notice specifying such default,
the Landlord or the Landlord's agents and servants may immediately or at any
time thereafter re-enter into or upon the premises, or any part thereof in the
name of the whole, either by summary dispossess proceedings or by any suitable
action or proceeding at law or by force or otherwise, without being liable to
indictment, prosecution or damages therefor, and may repossess the same, and may
remove any persons therefrom, to the end that the Landlord may have, hold and
enjoy the premises again as and of its first estate and interest therein. The
words "re-enter", "re-entry", and "re-entering" as used in this Lease are not
restricted to their technical legal meanings.
In the event of any termination of this Lease under the provisions of
Article Fifteenth hereof or in the event of the termination of this Lease by or
under any summary dispossess or other proceeding or action or other measure
undertaken by the Landlord for the enforcement of its aforesaid right of
re-entry (any such termination of this Lease being herein called a "Default
Termination"), the Tenant shall thereupon pay to the Landlord the fixed rent,
additional rent and percentage rent (if any) up to the time of such Default
Termination and shall likewise pay to the Landlord all such damages which, by
reason of such Default Termination, shall be payable by the Tenant as provided
in this Lease or pursuant to law. Also in the event of a Default Termination the
Landlord shall be entitled to retain all moneys, if any, paid by the Tenant to
the Landlord, whether as advance rent or as security for rent, but such moneys
shall be credited by the Landlord against any
<PAGE> 51
13
fixed rent, additional rent or percentage rent (if any) due from the Tenant at
the time of such Default Termination or, at the Landlord's option, against any
damages payable by the Tenant as provided in this Lease or pursuant to law.
In the event of a breach or threatened breach on the part of the Tenant
with respect to any of the covenants, agreements, terms, provisions or
conditions on the part of or on behalf of the Tenant to be kept, observed or
performed, the Landlord shall also have the right of injunction. The specified
remedies to which the Landlord may resort hereunder are cumulative and are not
intended to be exclusive of any other remedies or means of redress to which the
Landlord may lawfully be entitled at any time, and the Landlord may invoke any
remedy allowed at law or in equity as if specific remedies were not herein
provided for.
SEVENTEENTH. DAMAGES. In the event of a Default Termination of this Lease,
the Tenant will pay to the Landlord as damages, at the election of the Landlord,
either:
(a) a sum which, at the time of such Default Termination, represents
the then value of the excess, if any, of (1) the aggregate of the fixed
rent, the additional rent under Article Twenty-fourth hereof (if any) and
the percentage rent (if any) which, had this Lease not so terminated, would
have been payable hereunder by the Tenant for the period commencing with
the day following the date of such Default Termination and ending with the
date hereinbefore set for the expiration of the full term hereby granted,
over (2) the aggregate rental value of the premises for the same period, or
(b) sums equal to the aggregate of the fixed rent, the additional rent
under Article Twenty-fourth hereof (if any) and the percentage rent (if
any) which would have been payable by the Tenant had this Lease not
terminated by such Default Termination, payable upon the due dates therefor
specified herein following such Default Termination and until the date
hereinbefore set for the expiration of the full term hereby granted;
provided, however, that if the Landlord shall relet all or any part of the
premises for all or any part of the period commencing on the day following
the date of such Default Termination and ending on the date hereinbefore
set for the expiration of the full term hereby granted, the Landlord shall
credit the Tenant with the net rents received by the Landlord from such
reletting, such net rents to be determined by first deducting from the
gross rents as and when received by the Landlord from such reletting the
expenses incurred or paid by the Landlord in terminating this Lease and of
re-entering the premises and of securing possession thereof, as well as the
expenses of reletting, including altering and preparing the premises for
new tenants, brokers' commissions, and all other expenses properly
chargeable against the premises and the rental therefrom in connection with
such reletting, it being understood that any such reletting may be for a
period equal to or shorter or longer than said period; provided, further,
that (i) in no event shall the Tenant be entitled to receive any excess of
such net rents over the sums payable by the Tenant to the Landlord
hereunder, (ii) in no event shall the Tenant be entitled, in any suit for
the collection of damages pursuant to this subparagraph (b), to a credit in
respect of any net rents from a reletting except to the extent that such
net rents are actually received by the Landlord prior to the commencement
of such suit, and (iii) if the premises or any part thereof should be relet
in combination with other space, then proper apportionment on a square foot
rentable area basis shall be made of the rent received from such reletting
and of the expenses of reletting.
For the purposes of this Article, the amount of the percentage rent (if
any) which would have been payable for the period following a Default
Termination of this Lease shall be deemed to be an amount, for each calendar
month in said period, equal to the monthly average amount of percentage rent (if
any) which became payable under this Lease during the term hereof prior to such
Default Termination. For the purposes of subparagraph (a) of this Article, the
amount of additional rent which would have been payable by the Tenant under
Article Twenty-fourth hereof shall, for each Computation Year (as hereinafter
defined) ending after such Default Termination, be deemed to be an amount equal
to the amount of such additional rent payable by the Tenant for the Computation
Year immediately preceding the Computation Year in which such Default
Termination occurs. Suit or suits for the recovery of any damages payable
hereunder by the Tenant, or any installments thereof, may be brought by the
Landlord from time to time at its election, and nothing contained herein shall
be deemed to require the Landlord to postpone suit until the date when the term
of this Lease would have expired but for such Default Termination.
Nothing herein contained shall be construed as limiting or precluding the
recovery by the Landlord against the Tenant of any sums or damages to which, in
addition to the damages particularly provided above, the Landlord may lawfully
be entitled by reason of any default hereunder on the part of the Tenant.
<PAGE> 52
Rider 'C-1' attached to and forming a part of the Lease dated July 15, 1992,
between ROCKEFELLER CENTER PROPERTIES, as the Landlord, and THE REALLY USEFUL
COMPANY, INC., as the Tenant.
<PAGE> 53
14
EIGHTEENTH. WAIVERS BY TENANT. The Tenant, for the Tenant, and on behalf of
any and all persons, firms and corporations claiming through or under the
Tenant, including creditors of all kinds, does hereby waive and surrender all
right and privilege which they or any of them might have under or by reason of
any present or future law to redeem the premises or to have a continuance of
this Lease for the full term hereby demised after the Tenant is dispossessed or
ejected therefrom by process of law or under the terms of this Lease or after
the expiration or termination of this Lease as herein provided or pursuant to
law. The Tenant also waives (a) the right of the Tenant to trial by jury in any
summary dispossess or other proceeding that may hereafter be instituted by the
Landlord against the Tenant in respect of the premises or in any action that may
be brought to recover rent, damages or other sums payable hereunder, and (b) the
provisions of any law relating to notice and/or delay in levy of execution in
case of an eviction or dispossess of a tenant for nonpayment of rent, and of any
other law of like import now or hereafter in effect. If the Landlord commences
any such summary dispossess proceeding, the Tenant will not interpose any
counterclaim of whatever nature or description in such proceeding.
NINETEENTH. TENANT'S REMOVAL. Any personal property which shall remain in
any part of the premises after the expiration or termination of the term of this
Lease with respect to such part shall be deemed to have been abandoned, and
either may be retained by the Landlord as its property or may be disposed of in
such manner as the Landlord may see fit; provided, however, that,
notwithstanding the foregoing, the Tenant will, upon request of the Landlord
made not later than 30 days after expiration or termination of the term hereof
with respect to such part of the premises, promptly remove from the Building any
such personal property.
If at any time during the last month of this term of this Lease with
respect to any part of the premises, such part of the premises shall no longer
be occupied by the Tenant in the conduct of its business, the Landlord may, and
the Tenant hereby irrevocably grants to the Landlord a license to, enter such
part of the premises and make such alterations in and redecorate such part of
the premises as the Landlord shall determine in its sole discretion and the
Tenant shall not be entitled to any abatement of fixed rent or other
compensation on account thereof.
TWENTIETH. ELEVATORS, CLEANING, SERVICES, ETC. The Landlord will (i) supply
passenger elevator service during Business Hours to each floor, above the
street floor of the Building, which is served by the Building's passenger
elevators and on which the premises are, or any portion thereof is located,
with one of said elevators being subject to call for such service during hours
other than Business Hours, (ii) supply an elevator for the transmission of
freight to said floor or floors during Business Hours, (iii) subject to any
applicable policies or regulations adopted by any utility or governmental
authority, supply during Business Hours in the cold season heat for the warming
of the premises and the public portions of the Building, (iv) subject to any
applicable policies or regulations adopted by any utility or governmental
authority, supply during Business Hours air conditioning (including cooling
during the period from May 1 to September 30 as, in the Landlord's judgment,
may be necessary) and ventilation to all portions of the premises, if any,
which are served by the Building's air conditioning and ventilation systems,
and (v) clean any portion of the premises which is located on a floor above the
street floor of the Building except any such portion used for preparing,
dispensing or consumption of food or beverages or as an exhibition area or
classroom or for storage, shipping room, mail room or similar purposes or which
is a toilet (other than a toilet shown on any diagram attached hereto as
Exhibit A) or a shop or is used for the operation of computer, data processing,
reproduction, duplicating or similar equipment. The cleaning specifications
annexed hereto as Exhibit B set forth substantially to the extent and scope of
the cleaning to be performed by the Landlord in the premises as hereinabove
provided in this paragraph. In order for said air conditioning system to
function properly, the Tenant must lower and close the venetian blinds on all
windows of the premises facing the sun whenever said air conditioning system is
in operation and the Tenant will at all times comply with all regulations and
requirements which the Landlord may reasonably prescribe for the proper
functioning and protection of said air conditioning system. No representation
is made by the Landlord with respect to the adequacy or fitness of such air
conditioning or ventilation to maintain temperatures as may be required for, or
because of, the operation of any computer, data processing or other equipment
of the Tenant and where air conditioning or ventilation is required for any
such purpose and the Landlord assumes no responsibility, and shall have no
liability for any loss or damage however sustained, in connection therewith.
The air conditioning to be provided during the cooling season with respect to
said portions of the premises served by said air conditioning system shall
(provided that such system, to the extent located in the premises, is properly
designed in light of the layout and use of the premises and except to the
extent that occupancy of said portions of the premises by an average of more
than one person per 100 square feet or an electric load in excess of 4-watts
per square foot of the floor area of said portions of the premises, or any
change in the contemplated use or layout of said portions of the premises
subsequent to the installation thereof may interfere therewith) be such as to
provide during the summer season a temperature of 74 degrees Fahrenheit (plus
or minus 1 degree) inside said portions when the outside temperature is 80
degrees Fahrenheit dry bulb and/or 65 degrees Fahrenheit wet bulb or less, a
temperature of 75 degrees Fahrenheit (plus or minus 1 degree) inside said
portions when the outside temperature exceeds 80 degrees Fahrenheit dry bulb
and/or 65 degrees Fahrenheit wet bulb but is not over 85 degrees Fahrenheit dry
bulb and/or 70 degrees Fahrenheit wet bulb and when the outside temperature
exceeds 85 degrees Fahrenheit dry bulb and/or 70 degrees Fahrenheit wet bulb
but is not over 95 degrees Fahrenheit dry bulb and/or 75 degrees Fahrenheit wet
bulb, said inside temperature to be maintained at 78 degrees Fahrenheit (plus
or minus 1 degree) and furthermore, shall be such as to maintain a relative
humidity of not more than 60%. At all times other than described above, the
Building's systems shall be operated by the Landlord during the season when
heat is required to maintain an average temperature of 72 degrees Fahrenheit
(plus or minus 2 degrees) throughout the premises and shall also maintain a
reasonable amount of humidification, which humidification shall at all times be
not more than the dew point of the outside windows of said portions. The air
circulated through the ducts of the air conditioning system of the Building
serving the premises shall consist of an average amount of fresh air to meet
applicable ventilation codes. Unless otherwise provided in this Lease,
"Business Hours", as used in this Lease, means the generally customary daytime
business hours of the Tenant (but not before 8:00 A.M. or after 6:00 P.M.) of
days other than Saturdays, Sundays and holidays.
The Landlord will, when and to the extent reasonably requested by the
Tenant, furnish additional elevator, heating, air conditioning, ventilating
and/or cleaning services upon such reasonable terms and conditions as shall be
determined by the Landlord, including the payment by the Tenant to the Landlord
of the Landlord's
<PAGE> 54
15
reasonable charge therefor. The Tenant will also pay to the Landlord the
Landlord's reasonable charge for (a) any additional cleaning of the premises
required because of the carelessness or indifference of the Tenant or because of
the nature of the Tenant's business, and (b) the removal of any of the Tenant's
refuse and rubbish from the premises and the Building, except wastepaper and
similar discarded material placed by the Tenant in wastepaper baskets and left
for emptying as an incident to the Landlord's normal cleaning of the premises.
If the cost to the Landlord for cleaning the premises shall be increased due to
the use of any part of the premises during hours other than Business Hours or
due to there being installed in the premises, at the request of or by the
Tenant, any materials or finish other than those which are of the standard
adopted by the Landlord for the Building, the Tenant shall pay to the Landlord
an amount equal to such increase in cost.
At any time or times all or any of the elevators in the Building may, at
the option of the Landlord, be manual or automatic elevators, and the Landlord
shall be under no obligation to furnish an elevator operator or starter for any
automatic elevator, but if the Landlord shall at any time or times furnish any
elevator operator or starter for any automatic elevator, the Landlord may
discontinue furnishing such elevator operator or starter.
The Landlord reserves the right, without liability to the Tenant and
without constituting any claim of constructive eviction, to stop any heating,
elevator, escalator, lighting, ventilating, air conditioning, power, water,
cleaning or other service and to interrupt the use of any Building facilities,
at such times as may be necessary and for as long as may reasonably be required
by reason of accidents, strikes, the making of repairs, alterations or
improvements, inability to secure a proper supply of fuel, steam, water,
electricity, labor or supplies, or by reason of any other cause beyond the
reasonable control of the Landlord; provided, however, that any such stoppage or
interruption for the purpose of making any alteration or improvement shall be
made at such times and in such manner as shall not unreasonably interfere with
the Tenant's use of the premises.
TWENTY-FIRST. LEASE CONTAINS ALL AGREEMENTS-NO WAIVERS. This Lease contains
all of the covenants, agreements, terms, provisions, conditions and
understandings relating to the leasing of the premises hereunder and the
Landlord's obligations in connection therewith and neither the Landlord nor any
agent or representative of the Landlord has made or is making, and the Tenant in
executing and delivering this Lease is not relying upon, any warranties,
representations, promises or statements whatsoever, except to the extent
expressly set forth in this Lease. All understandings and agreements, if any,
heretofore had between the parties are merged in this Lease, which alone fully
and completely expresses the agreement of the parties.
The failure of the Landlord to insist in any instance upon the strict
keeping, observance or performance of any covenant, agreement, term, provision
or condition of this Lease or to exercise any election herein contained shall
not be construed as a waiver or relinquishment for the future of such covenant,
agreement, term, provision, condition or election, but the same shall continue
and remain in full force and effect. No waiver or modification by the Landlord
of any covenant, agreement, term, provision or condition of this Lease shall be
deemed to have been made unless expressed in writing and signed by the Landlord.
No surrender of possession of the premises or of any part thereof or of any
remainder of the term of this Lease shall release the Tenant from any of its
obligations hereunder unless accepted by the Landlord in writing. The receipt
and retention by the Landlord of fixed rent, percentage rent (if any) or
additional rent from anyone other than the Tenant shall not be deemed a waiver
of the breach by the Tenant of any covenant, agreement, term, provision or
condition herein contained, or the acceptance of such other person as a tenant,
or a release of the Tenant from the further keeping, observance or performance
by the Tenant of the covenants, agreements, terms, provisions and conditions
herein contained. The receipt and retention by the Landlord of fixed rent,
percentage rent (if any) or additional rent with knowledge of the breach of any
covenant, agreement, term, provision or condition herein contained shall not be
deemed a waiver of such breach.
TWENTY SECOND. PARTIES BOUND. The covenants, agreements, terms, provisions
and conditions of this Lease shall bind and benefit the respective successors,
assigns and legal representatives of the parties hereto with the same effect as
if mentioned in each instance where a party hereto is named or referred to,
except that no violation of the provisions of Article Seventh hereof shall
operate to vest any rights in any successor, assignee or legal representative of
the Tenant and that the provisions of this Article shall not be construed as
modifying the conditions of limitation contained in Article Fifteenth hereof.
The covenants and obligations on the part of the Landlord under this Lease shall
not, however, be binding upon the Landlord herein named (or any transferee of
its interest in the Building) with respect to the period (i) subsequent to the
transfer of its interest in the Building (a lease of the entire interest being
deemed such a transfer), or (ii) subsequent to the expiration
<PAGE> 55
16
or earlier termination of the term of any underlying lease to which this Lease
and the term and estate hereby granted may be subject and subordinate and
wherein the lessor thereunder has agreed to recognize this Lease in case the
term of said underlying lease expires or terminates prior to the expiration or
termination of the term of this Lease if the Landlord would not then be entitled
to terminate this Lease pursuant to said Article Fifteenth or to exercise any
dispossess remedy provided for herein or by law; and in any such event said
covenants and obligations shall thereafter be binding upon the transferee of
such interest in the Building or the lessor under said underlying lease, as the
case may be, until the next such transfer of such interest.
TWENTY-THIRD. CURING TENANT'S DEFAULTS-ADDITIONAL RENTS. If the Tenant
shall default in the keeping, observance or performance of any covenant,
agreement, term, provision or condition herein contained, the Landlord, without
thereby waiving such default, may perform the same for the account and at the
expense of the Tenant (a) immediately or at any time thereafter and without
notice in the case of emergency or in case such default unreasonably interferes
with the use by any other tenant of any space in the Building demised to such
other tenant or with the efficient operation of the Building or will result in
a violation of law or in a cancellation of an insurance policy maintained by
the Landlord, and (b) in any other case if such default continues after 30 days
from the date of the giving by the Landlord to the Tenant of notice of the
Landlord's intention so to perform the same. All reasonable costs and expenses
incurred by the Landlord in connection with any such performance by it for the
account of the Tenant and also all costs and expenses, including reasonable
counsel fees and disbursements incurred by the Landlord in any action or
proceeding (including any summary dispossess proceeding) brought by the
Landlord to enforce any obligation of the Tenant under this Lease and/or right
of the Landlord in or to the premises, shall be paid by the Tenant to the
Landlord upon demand. Except as aforesaid or as elsewhere provided in this
Lease, all costs and expenses which, pursuant to this Lease (including the
rules and regulations referred to herein) are incurred by the Landlord and
payable to it by the Tenant and all charges, amounts and sums payable to the
Landlord by the Tenant for any property, material, labor, utility or other
services which, pursuant to this Lease or at the request and for the account of
the Tenant, are provided, furnished or rendered by the Landlord shall become
due and payable by the Tenant to the Landlord in accordance with the terms of
bills therefor to be rendered by the Landlord to the Tenant. If any cost,
expense, charge, amount or sum referred to in this Article or elsewhere in this
Lease is not paid when due and payable as provided in this Lease, the same
shall become due and payable by the Tenant as additional rent hereunder. If any
fixed rent, additional rent, percentage rent (if any) or damages payable
hereunder by the Tenant to the Landlord is not paid when due as in this Lease
provided, the same shall bear interest at the rate of 2% per month (but in no
event at a rate in excess of that permitted by law) from the due date thereof
until paid and the amount of such interest shall be deemed additional rent
hereunder. In the event of nonpayment by the Tenant of any such additional rent
and/or any other additional rent and/or percentage rent (if any) becoming due
hereunder, the Landlord, in addition to any other right or remedy, shall have
the same rights and remedies as in the case of default by the Tenant in the
payment of the fixed rent. In the event that the Tenant is in arrears in
payment of fixed rent, percentage rent (if any) or additional rent, the Tenant
waives the Tenant's right, if any, to designate the items against which any
payments made by the Tenant are to be credited, and the Landlord may apply any
payments made by the Tenant to any items the Landlord sees fit, irrespective of
and notwithstanding any designation or request by the Tenant as to the items
against which any such payments shall be credited. The Landlord reserves the
right, without liability to the Tenant and without constituting any claim of
constructive eviction, to suspend furnishing or rendering to the Tenant any
property, material, labor, utility or other service, wherever the Landlord is
obligated to furnish or render the same at the expense of the Tenant, in the
event that (but only so long as) the Tenant is in arrears in paying the
Landlord therefor at the expiration of 5 days after the Landlord shall have
given to the Tenant notice demanding the payment of such arrears.
TWENTY-FOURTH. Adjustments for Changes in Landlord's Costs and Expenses. If
sum of the Building Square Foot Share of the Real Estate Taxes for any
Computation Year plus 110% of the Center Square Foot Share of the Cost of
Operation and Maintenance for such Communication Year shall be greater
(resulting in an excess) or shall be less (resulting in a deficiency) than
$__________ the sum of the Building Square Foot Share of the Real Estate Taxes
for the twelve month period ending on June 30, 1993 plus 110% of the Center
Square Foot Share of the Cost of Operation and Maintenance for the Computation
Year ending on December 31, 1993, then promptly after the Landlord shall furnish
the Tenant with an Escalation Statement relating to such Computation Year the
Tenant shall, in case of such an excess, pay to the Landlord, as additional rent
for the premises for such Computation Year, an amount equal to the product
obtained by multiplying such excess by the Tenant's Area or the Landlord shall,
in case of such a deficiency, pay to the Tenant an amount equal to the product
obtained by multiplying such deficiency by the Tenant's Area.
<PAGE> 56
17
In order to provide for current payments on account of the additional rent
which may be payable to the Landlord pursuant to the first paragraph of this
Article for any Computation Year, the Tenant agrees to make such payments on
account of said additional rent for and during such Computation Year in 12
monthly installments, each in an amount equal to 1/12th of the amount which
would have been payable by the Tenant to the Landlord pursuant to said first
paragraph for the period of 12 calendar months immediately preceding such
Computation Year if said 12-month period had been a Computation Year falling
entirely within the term of this Lease and if there had been no abatement of
fixed rent hereunder during such 12-month period (other than an abatement, if
any, pursuant to Article Tenth hereof) except that the installment for each such
month shall be appropriately adjusted to reflect the Real Estate Taxes actually
payable for such month and the Cost of Operation and Maintenance for such
Computation Year as reasonably estimated by the Landlord, the installment for
each calendar month to be due and payable upon the receipt from the Landlord of
a bill for the same. If, as finally determined, the amount of additional rent
payable by the Tenant to the Landlord pursuant to the first paragraph of this
Article for such Computation Year shall be greater than (resulting in an
underpayment) or be less than (resulting in an overpayment) the aggregate of all
the installments so paid on account to the Landlord by the Tenant for such
Computation Year, then, promptly after the receipt of the Escalation Statement
for such Computation Year and, in performance of its obligations under the first
paragraph of this Article, the Tenant shall, in case of such an underpayment,
pay to the Landlord an amount equal to such underpayment or the Landlord shall,
in case of such an overpayment, pay to the Tenant an amount equal to such
overpayment.
As used in this Article:
(a) "Computation Year" shall mean each calendar year in which occurs
any part of the term of this Lease and, in the case of a Default
Termination of this Lease, in which would have occurred any part of the
full term of this Lease except for such Default Termination.
(b) "Tenant's Area" shall mean the number of square feet in the
rentable area of the premises.
(c) "Building Square Foot Share" shall mean a fraction whose numerator
is one and whose denominator is the number of square feet of the rentable
area of the Building (excluding from such denominator the number of
rentable square feet in any portion of the Building (i) for which no Real
Estate Taxes are payable, or (ii) for which the Real Estate Taxes are
payable by any person, firm or corporation other than the Landlord, without
reimbursement by the Landlord).
(d) "Center Square Foot Share" shall mean a fraction whose numerator
is one and whose denominator is the number of square feet in the rentable
area of all buildings in the Center exclusive of the rentable area of any
such building or any structure on any such building operated and maintained
by and at the expense of any person, firm or corporation (other than the
Landlord) or of any theater or garage located in the Center.
(e) "Real Estate Taxes" shall mean the taxes and assessments imposed
upon the Building and the Land, or the aggregate of taxes and assessments
imposed upon all portions of the Building and the Land, if such taxes and
assessments are imposed separately, (other than any interest or penalties
imposed in connection therewith) and all expenses, including fees of
counsel and experts, reasonably incurred by, or reimbursable by, the
Landlord in connection with any application for a reduction in the assessed
valuation for the Building and/or the Land or for a judicial review
thereof. If due to a future change in the method of taxation any franchise,
income, profit or other tax shall be levied against the Landlord in
substitution in whole or in part for or in lieu of any tax which would
otherwise constitute a Real Estate Tax, such franchise, income, profit or
other tax shall be deemed to be a Real Estate Tax for the purposes hereof.
Where the Real Estate Taxes are not separately levied upon the Building and
the Land but are included in a blanket levy imposed upon or with respect to
the Building and/or the Land as well as others, the amount of Real Estate
Taxes for the purposes hereof shall be determined by allocation as follows,
namely, the amount of Real Estate Taxes for the Building shall be deemed to
be that amount which, in relation to the total amount of said taxes for all
buildings included in said blanket levy, is in the same proportion as the
total rentable area of the Building bears to the total rentable area of all
said included buildings, and the amount of Real Estate Taxes for the Land
shall be deemed to be that amount which, in relation to the total amount of
said taxes for all land included in said blanket levy, is in the same
proportion as the rentable area of the Building bears to the aggregate
rentable area of all buildings situated on said included lands. Real Estate
Taxes shall not include any portion thereof payable by a person, firm or
corporation other than the Landlord, without reimbursement by the Landlord.
<PAGE> 57
Rider 'E' attached to and forming a part of Lease dated July 15, 1992 between
ROCKEFELLER CENTER PROPERTIES, as the Landlord and THE REALLY USEFUL COMPANY,
INC., as the Tenant.
When requested by the Tenant within 6 months following the receipt by
it of any Escalation Statement, the Landlord, in substantiation of its
determination of the amounts set forth in said Escalation Statement, will
furnish to the Tenant such additional information as reasonably may be required
for such purpose, and, as may be necessary for the verification of such
information, will permit the pertinent records of the Landlord to be examined by
an officer of the Tenant or by such independent certified public accountant as
the Tenant may designate; it being expressly understood that the Landlord shall
be under no duty to preserve any such records, or any data or material related
thereto, beyond such time as shall be its customary practice with respect
thereto.
<PAGE> 58
Rider 'D' attached to and forming a part of Lease dated July 15, 1992 between
ROCKEFELLER CENTER PROPERTIES, as the Landlord and THE REALLY USEFUL COMPANY,
INC., as the Tenant.
(6) costs of alterations, improvements or additions to the premises of any
other tenant other then repair and maintenance thereof and items required by law
or insurance requirements, (7) interest and amortization of any debts, including
mortgage indebtedness, and any rents payable in respect to any underlying lease,
(8) the costs of any salary payable to, or the cost of any fringe benefits in
connection with, the Chairman of the Board, the President, or any Vice President
(other than any Vice President in the Operating Division) of the Landlord and
their respective secretaries, (9) the cost of soliciting prospective tenants
(including brokerage or other leasing commissions) and of preparing and
executing leases, (10) the cost of any repair of any damage caused by fire or
other casualty to the extent that the cost of such repair is covered by
insurance or the Landlord is entitled to be reimbursed therefor by any tenant in
addition to the rent payable by such tenant, (11) the cost of any repair
necessitated by the taking by condemnation of any part of the Center to the
extent that the Landlord is entitled to be reimbursed therefor by the condemning
authority, (12) any legal or auditing fees, or (13) any amount paid as ground
rent by the Landlord.
<PAGE> 59
(f) "Cost of Operation and Maintenance" shall mean the actual cost
incurred by the Landlord with respect to the operation, maintenance and
repair of the Center and the curbs and sidewalks adjoining the same,
including, without limitation, the cost incurred for air conditioning;
mechanical ventilation; heating; interior and exterior cleaning; rubbish
removal; window washing (interior and exterior, including inside
partitions); elevators; escalators; hand tools and other moveable
equipment; porter and matron service; electric current, steam, water and
other utilities; protection and security service; repairs; maintenance;
fire, extended coverage, boiler, sprinkler, apparatus, public liability and
property damage insurance; supplies; wages, salaries, disability benefits,
pensions, hospitalization, retirement plans and group insurance respecting
service and maintenance employees; uniforms and working clothes for such
employees and the cleaning thereof; expenses imposed pursuant to any
collective bargaining agreement with respect to such employees; payroll,
social security, unemployment and other similar taxes with respect to such
employees; Sales, use and other similar taxes; water rates; sewer rents;
charges of any independent contractor who does any work with respect to the
operation, maintenance and repair of the Center and the curbs and sidewalks
adjoining the same; and the annual depreciation or amortization over the
useful life thereof of costs, including financing costs, incurred for any
equipment, device or other capital improvement made or acquired which is
either intended as a laborsaving measure or to effect other economies in
the operation, maintenance or repair of the Center and said curbs and
sidewalks (provided that the annual benefits anticipated to be realized
therefrom are reasonably related to the annual amount to be amortized) or
which is required by any change in laws, ordinances, rules, orders or
regulations of governmental authorities or insurance bodies, provided,
however, that the term "Cost of Operation and Maintenance" shall not
include (1) Real Estate Taxes, special assessments, franchise taxes or
taxes imposed upon or measured by the income or profits of the Landlord,
(2) except for depreciation and amortization hereinabove provided for in
this subparagraph, and the depreciation and amortization of the cost of any
hand tools or other moveable equipment, the cost of any item which is, or
should in accordance with sound accounting practice be, capitalized on the
books of the Landlord, (3) the cost of any electricity furnished to the
premises or any other space in the Center demised to other tenants, (4) the
cost of any work or service performed for any tenant of space in the Center
(including the Tenant) at such tenant's cost and expense or furnished to
any other tenant of space in the Center at the Landlord's cost and expense
to the extent that such work or service is in excess of any work or service
which the Landlord is obligated to furnish hereunder to the Tenant at the
Landlord's cost and expense, (5) any costs incurred with respect to any
theater or garage located in the Center, (See Rider 'D' attached to this
Lease) If during any period for which the Cost of Operation and Maintenance
is being computed the Landlord is not for all or any part of such period
furnishing any particular work or service (the cost of which if performed
by the Landlord would constitute a Cost of Operation and Maintenance) to a
portion of the Center due to the fact that such portion is not leased to a
tenant or that the Landlord is not obligated to perform such work or
service in such portion, then the amount of the Cost of Operation and
Maintenance for such period shall be deemed, for the purposes of this
Article, to be increased by an amount equal to the additional Cost of
Operation and Maintenance which would reasonably have been incurred during
such period by the Landlord if it had at its own expense furnished such
work or service to such portion.
(g) "Escalation Statement" shall mean a statement setting forth the
amount payable by the Tenant or the Landlord, as the case may be, for a
specified Computation Year pursuant to this Article.
In the event that the term commencement date shall be a day other than a
January 1 or the date fixed for the expiration of the full term hereof shall be
a day other than a December 31, or of any abatement of the fixed rent payable
hereunder pursuant to any provision of this Lease other than the abatement
referred to in the fourth paragraph of Article First hereof, or any termination
of this Lease (other than a Default Termination) or of any increase or decrease
in the Tenant's Area, then in each such event in applying the provisions of this
Article with respect to any Computation Year in which such event occurred,
appropriate adjustments shall be made to reflect the result of such event on a
basis consistent with the principles underlying the provisions of this Article,
taking into consideration (i) the portion of such Computation Year which shall
have elapsed prior to or after such event, (ii) the rentable area of the
premises affected thereby, and (iii) the duration of such event.
(See Rider 'E' attached to this Lease)
The Tenant shall not (and hereby waives any and all rights it may now or
hereafter have to) institute, maintain, or intervene in any action, proceeding
or application in any court or other body having the power to fix or review
assessed valuations, for the purpose of reducing the Real Estate Taxes.
<PAGE> 60
In case the Real Estate Taxes for any Computation Year or part thereof
shall be reduced after a payment shall have been made in respect of such
Computation Year pursuant to the first paragraph of this Article, the Landlord
shall refund to the Tenant an amount equal to the product obtained by
multiplying the Tenant's Area by the Building Square Foot Share of the net
refund of such Real Estate Taxes received by the Landlord.
TWENTY-FIFTH. MISCELLANEOUS. If the Landlord shall have heretofore
consented to or shall hereafter consent to the omission or removal of any part
of, or the insertion of any door (other than to a public corridor) or other
opening in, any wall separating the premises from other space adjoining the
premises, then (a) the Tenant shall be deemed to have assumed responsibility for
all risks (including, but not limited to, damage to, or loss or theft of,
property) incident to the use of said door or other opening or the existence
thereof, and shall indemnify and save the Landlord harmless from and against any
claim, demand or action for, or on account of, any such loss, theft or damage,
and (b) in the event of the expiration or termination of this Lease or any lease
of said adjoining space, the Landlord may enter the premises and close up such
door or other opening by erecting a wall to match the wall separating the
premises from said adjoining space, and the Tenant shall pay the reasonable cost
thereof and such work may be done during Business Hours and while the Tenant is
in occupancy of the premises and the Tenant shall not be entitled to any
abatement of fixed rent or other compensation on account thereof; provided,
however, that nothing herein contained shall be deemed to vest the Tenant with
any right or interest in, or with respect to, said adjoining space, or the use
thereof, and the Tenant hereby expressly waives any right to be made a party to,
or to be served with process or other notice under or in connection with, any
proceeding which may hereafter be instituted by the Landlord for the recovery of
the possession of said adjoining space.
Without incurring any liability to the Tenant, the Landlord may permit
access to the premises and open the same, whether or not the Tenant shall be
present, upon demand of any receiver, trustee, assignee for the benefit of
creditors, sheriff, marshal or court officer entitled to, or reasonably
purporting to be entitled to, such access for the purpose of taking possession
of, or removing, the Tenant's property or for any other purpose (but this
provision and any action by the Landlord hereunder shall not be deemed a
recognition by the Landlord that the person or official making such demand has
any right or interest in or to this Lease, or in or to the premises), or upon
demand of any representative of the fire, police, building, sanitation or other
department of the city, state or federal government.
If an excavation shall be made upon any land adjacent to the Building, or
shall be authorized to be made, the Tenant shall afford to the person causing or
authorized to cause such excavation a license to enter upon the premises for the
purpose of doing such work as said person shall deem necessary to preserve the
Building from injury or damage, all without any claim for damages or indemnity
against the Landlord or diminution or abatement of rent.
The Tenant shall not be entitled to exercise any right of termination or
other option granted to it by this Lease at any time when the Tenant is in
default in the keeping, performance or observance of any of the covenants,
agreements, terms, provisions or conditions on its part to be kept, performed or
observed under this Lease.
The headings of the Articles of this Lease are for convenience only and are
not to be considered in construing said Articles.
As used in this paragraph, the term "facility" means stores, restaurants,
cafeterias, rest rooms, and any other facility of a public nature in the
Building. The Tenant agrees that it will not discriminate by segregation or
otherwise against any person or persons because of race, creed, color, or
national origin in furnishing, or by refusing to furnish, to such person or
persons the use of any facility in the premises, including any and all services,
privileges, accommodations, and activities provided thereby. It is agreed that
the Tenant's noncompliance with the provisions of this paragraph shall
constitute a material breach of this Lease. In the event of such noncompliance,
the Landlord may take appropriate action to enforce compliance, may terminate
this Lease in accordance with the provisions of this Lease, or may pursue such
other remedies as may be provided by law. In the event of termination, the
Tenant shall be liable to the Landlord for damages in accordance with the
provisions of this Lease.
<PAGE> 61
TWENTY-SIXTH. Work by Tenant. The Tenant shall promptly submit to the
Landlord, for the Landlord's approval, which approval shall not be unreasonably
withheld, complete architectural and mechanical working drawings and
specifications showing a proposed renovation of the space designated 'D' on the
15th Floor of the Building in Article First hereof (herein called "the Work
Area") as desired by the Tenant consistent with the design, construction and
equipment of the Building and in conformity with its standards, all in such form
and in such detail as may be reasonably required by the Landlord, including
provision for the installation of a sprinkler system for the Work Area. The
working drawings and specifications to be submitted to the Landlord as aforesaid
shall be prepared by a competent architect licensed in the State of New York (in
consultation with a competent engineer where required by the nature of the
work), reasonably satisfactory to the Landlord, who shall be engaged by the
Tenant and who, at the Tenant's expense, shall furnish all architectural and
engineering services necessary for the preparation of said working drawings and
specifications and in connection with securing the aforesaid approval thereof by
the Landlord and with the securing by the Tenant of such approvals as by reason
of the nature of the work shown on said working drawings and specifications, may
be required from the Department of Buildings of the City of New York and any
other governmental authorities.
If the Landlord shall not approve any working drawing or specification as
submitted by the Tenant, the Landlord shall with reasonable promptness notify
the Tenant thereof and of the particulars of such revisions therein as are
reasonably required by the Landlord for the purpose of obtaining its said
approval and as promptly as reasonably possible after being so informed by the
Landlord, the Tenant shall submit to the Landlord, for the Landlord's approval
(which approval shall not be unreasonably withheld), a working drawing or
specification, as the case may be, incorporating such revisions or incorporating
such modifications thereto as are suggested by the Tenant and approved by the
Landlord (said working drawings and specifications, as so approved, being herein
called "the Working Drawings"). Any such approval by the Landlord shall not be
deemed to be a representation or warranty that the same is properly designed to
perform the function for which it is intended or complies with any applicable
law, ordinance, rule, order or regulation of any governmental authority or
insurance body, but only that the work required thereby will not interfere with
the systems of the Building and is compatible with the design and structure of
the Building.
<PAGE> 62
Such renovation shall be performed in accordance with, and subject to all
of the covenants, agreements, terms, provisions and conditions of this Lease
(including, but not limited to, subparagraph (e) of Article Sixth hereof).
Upon the approval by the Landlord of the Working Drawings, the Tenant shall
proceed with due dispatch to cause the work as shown on such approved Working
Drawings to be done at the Tenant's sole cost and expense.
The workmen and the contractors performing the work and the manner, terms
and conditions upon which the same is performed shall be satisfactory to and
approved by the Landlord. The work shall at all times comply with (a) all
applicable rules and regulations and orders of any and all governmental
authorities or insurance bodies having jurisdiction with respect thereto, and
(b) with the reasonable rules and regulations of the Landlord pertaining to the
performance thereof.
The Landlord agrees that upon receipt by it of evidence satisfactory to it
of the completion of such work by the Tenant in a manner satisfactory to the
Landlord, and upon the furnishing by the Tenant to the Landlord of evidence
reasonably satisfactory to the Landlord of the payment in full of all costs and
charges incurred in the performance of the work and the discharge of any lien
filed in connection with such work, the Landlord shall pay to the Tenant the
lesser of (i) the actual cost of such work, or (ii) $151,000.00.
<PAGE> 63
TWENTY SEVENTH. The Landlord will, in accordance with Article Second
hereof, do the following work (which shall be of material, quality, finish and
color of the standard adopted by the Landlord for the Building) , in connection
with the layout and finish of the space designated 'D' in Article First hereof
(herein called "the Work Area"), namely:
a) demolish existing interior partitions in the Work Area;
b) furnish and install a southerly demising wall for the purpose of
bounding off the Work Area from the adjoining space;
c) install an electric meter;
d) remove existing carpet and floor tiles in the Work Area; and
e) replace existing entrance door with comparable door selected by the
Landlord.
<PAGE> 64
TWENTY-EIGHTH Asbestos Removal Tenant. The Tenant shall cause to be
conducted, by a licensed inspector selected by the Tenant and approved by the
Landlord, an inspection for the purpose of detecting the presence of asbestos in
the space designated as 'D' on the 15th Floor of the Building in Article First
hereof (herein called "the Work Area"). Upon the completion of such inspection
and submission by the Tenant to the Landlord of copies of the inspection report,
the inspector's invoice and evidence satisfactory to the Landlord of payment by
the Tenant therefor, the Landlord shall pay to the Tenant the lesser of (a) the
actual cost to the Tenant of such inspection, or (b) $500.00.
In the event that the asbestos inspection report indicates that asbestos
removal is required, the Tenant shall submit to the Landlord, for the Landlord's
approval, complete specifications detailing the proposed asbestos removal from
the Work Area, consistent with the design, construction and equipment of the
Building and in conformity with its standards, all in such form and in such
detail as may be reasonably required by the Landlord. The specifications to be
submitted to the Landlord as aforesaid shall be prepared by a competent engineer
licensed in the State of New York, reasonably satisfactory to the Landlord, who
shall be engaged by the Tenant and who, at the Tenant's expense, shall furnish
all architectural and engineering services necessary for the preparation of said
specifications and in connection with securing the aforesaid approval thereof by
the Landlord and with the securing by the Tenant of such approvals as by reason
of the nature of the work shown on said specifications, may be required from the
Department of Buildings of the City of New York and any other governmental
authorities. The Tenant shall furnish three estimates from qualified contractors
of the proposed cost of the asbestos removal along with the specifications.
Should the Landlord not accept any estimate or specifications as submitted
by the Tenant, the Landlord shall, with reasonable promptness, notify the Tenant
thereof and of the particulars of such revisions therein as are reasonably
required by the Landlord for the purpose of obtaining its said approval and as
promptly as reasonably possible after being so informed by the Landlord the
Tenant shall submit to the Landlord, for the Landlord's approval (which approval
shall not be unreasonably withheld), a revised estimate acceptable to the
Landlord and/or a specification, as the case may be, incorporating such
revisions or incorporating such modifications thereto as are suggested by the
Tenant and approved by the Landlord (said specifications, as so approved, being
herein called "the Specifications"). Any such approval by the Landlord shall not
be deemed to be a representation or warranty that the same is properly designed
to perform the function for which it is intended or complies with any applicable
law, ordinance, rule, order or regulation of any governmental authority or
insurance body, but only that the work required thereby will not interfere with
the systems of the Building and is compatible with the design and structure of
the Building.
<PAGE> 65
Such removal shall be performed in accordance with, and subject to all of
the covenants, agreements, terms, provisions and conditions of this Lease
(including, but not limited to, Article Sixth hereof). Upon the approval by the
Landlord of the Specifications and the revised estimate, the Tenant shall
proceed with due dispatch to cause the work as shown on such approved
Specifications to be done at the Tenant's sole cost and expense.
The Landlord agrees that upon receipt by it of evidence satisfactory to it
of the completion of such work by the Tenant in a manner satisfactory to the
Landlord and upon the furnishing by the Tenant to the Landlord of (i) the
discharge of any lien filed in connection with such work, and (ii) certificates
issued by a licensed independent testing laboratory (other than the entity
performing the asbestos removal) indicating the satisfactory removal of
asbestos; the Landlord shall pay to the Tenant that amount which is the lesser
of (a) the estimate as approved by the Landlord, subject to any change orders
approved by the Landlord, or (b) the actual cost to the Tenant of such work.
<PAGE> 66
TWENTY-NINTH. Subletting. In the event the Tenant desires the Landlord's
consent to the subletting of all or any part of the premises for any part of the
term of this Lease with respect thereto, the Tenant shall notify the Landlord of
the name of the proposed subtenant, such information as to the proposed
subtenant's business, financial responsibility and standing as the Landlord may
require, and of the covenants, agreements, terms, provisions and conditions of
the proposed subletting, which notice shall (except in the case of a proposed
subletting to a subsidiary or affiliate of the Tenant) contain an offer to
vacate and surrender, as of the Special Surrender Date (as hereinafter defined),
either (i) if the Tenant proposes to sublet only a part of the premises, the
space to be demised by the proposed sublease, together with such other space, if
any, as is demised to the Tenant by this Lease as may be reasonably required for
public corridors, toilets and core facilities serving the space so proposed to
be sublet (said spaces(s) being herein collectively called a "Partial Space"),
or (ii) if the Tenant proposes to sublet the entire premises, the entire
premises. The term "Special Surrender Date" as used in this Article, shall mean
a date to be specified in such notice from the Tenant; provided, however, said
specified date shall be (a) the last day of a calendar month during the term
hereof with respect thereto, and (b) not earlier than a date occurring 120 days
after the giving of such notice and not later than the date for the commencement
of the term of the proposed subletting.
The Landlord may accept such offer by a notice given to the Tenant within
30 days after the receipt of such notice from the Tenant. If the Landlord
accepts such offer and such offer pertains to a Partial Space, then effective as
of the Special Surrender Date, this Lease shall be deemed modified so that the
term and estate granted by this Lease with respect to such Partial Space (unless
the same shall have expired sooner pursuant to any of the other conditions of
limitation or provisions of this Lease or pursuant to law) shall expire on the
Special Surrender Date with the same effect as if the Special Surrender Date
were the date specified in this Lease for the expiration of the term of this
Lease with respect to such Partial Space and the annual fixed rent payable
hereunder, to the extent that such fixed rent relates to such Partial Space and
such abatement is in excess of the annual rate of any other existing abatement
of fixed rent relating thereto under any other covenant, agreement, term,
provision or condition of this Lease, shall be abated at the Applicable Rental
Rate (as hereinafter defined) for each square foot of the rentable area of the
Partial Space from and after the Special Surrender Date. If the Landlord accepts
such offer pertaining to a Partial space, the Landlord agrees that any tenant of
the Partial Space shall have a separate entrance to the Partial Space and shall
not have to pass through the Tenant's premises.
<PAGE> 67
If the Landlord accepts such offer and such offer pertains to the entire
premises, then this Lease shall be deemed modified so that the term and estate
granted by this Lease (unless the same shall have expired sooner pursuant to any
of the conditions of limitation or other provisions of this Lease or pursuant to
law) shall expire on the Special Surrender Date with the same effect as if the
Special Surrender Date were the date specified in this Lease for the expiration
of the term hereof and the fixed rent payable hereunder shall be apportioned as
of the Special Surrender Date. The Tenant shall terminate its occupancy of such
Partial Space or the premises, as the case may be, not later than the Special
Surrender Date.
The term "Applicable Rental Rate" as used in this Article shall be deemed
to mean $37.00 per annum for the period commencing on the term commencement date
and ending on the day preceding the fifth anniversary of the term commencement
date; and $39.00 per annum thereafter.
In the event of such expiration of the term of this Lease with respect to a
Partial Space, any changes, improvements and alterations to any portion of the
premises remaining demised by this Lease after the Special Surrender Date
(including, but not limited to, the erection of a boundary wall to separate such
portion from such Partial Space) made necessary or desirable by reason of such
expiration shall be made by the Landlord at the Tenant's expense.
In the event (i) the Landlord does not accept an offer made by the Tenant
in a notice given to the Landlord pursuant to the first paragraph of this
Article, or (ii) the proposed subletting is to a subsidiary or affiliate of the
Tenant, the Landlord will not unreasonably withhold its consent to the proposed
subletting referred to in said notice on the covenants, agreements, terms,
provisions and conditions set forth in said notice; provided, however, that the
Landlord shall not in any event be obligated to consent to any such proposed
subletting unless
(a) the sublessee under any such subletting shall be such person, firm
or corporation as in the Landlord's reasonable judgment is of a character
and engaged in a business such as is in keeping with the standards in those
respects for the Building and its occupancy and shall not be a government
or a governmental authority or a subdivision or an agency of any government
or any governmental authority or a tenant of the Landlord or a subsidiary
or affiliate of the Landlord;
(b) except in the case of a subletting to a subsidiary or affiliate of
the Tenant, such
<PAGE> 68
subletting shall be at a rental rate not less than the rental rates then
being charged under leases being entered into by the Landlord for
comparable space in the Center and for a comparable term;
(c) the space so to be sublet shall be regular in shape;
(d) such consent shall be evidenced by the delivery of, and shall be
subject to the covenants, agreements, terms, provisions and conditions of,
a "Consent to Sublease" duly executed by the Landlord, the Tenant and the
sublessee and on such customary form of the Landlord as is adopted by it
for such purpose, for which the Tenant shall pay to the Landlord a
reasonable processing charge in connection therewith; and
(e) the Tenant and the sublessee shall agree that the sublessee will
not, without the prior consent of the Landlord, assign the sublease or
under-sublet the space so sublet or any part thereof.
All of the covenants, agreements, terms, provisions and conditions of any
such "Consent to Sublease" so executed by the Landlord, the Tenant and the
sublessee shall be deemed to be covenants, agreements, terms, provisions and
conditions of this Lease and the violation by the Tenant or the sublessee of any
covenant, agreement, term, provision or condition of such "Consent to Sublease"
shall entitle the Landlord to all the rights and remedies provided for in this
Lease or by law in the case of any violation of a covenant, agreement, term,
provision or condition of this Lease.
If the aggregate amount payable as rent (including as rent, without
limitation, all amounts payable on account of changes in Real Estate Taxes,
operating costs, maintenance costs, labor rates, indexes or other formula
contained in the sublease) with respect to any period of time by a subtenant
under a sublease of any part of the premises made by the Tenant shall be in
excess of the Tenant's Basic Cost (as hereinafter defined) for such period for
such part of the premises, then, promptly after the collection by the Tenant of
such amounts so payable for such period under such sublease, the Tenant will pay
to the Landlord, as additional rent hereunder, an amount equal to 75% of the
excess of such amounts so collected for such period over the Tenant's Basic
Cost for such period for such part of the premises. The term "Tenant's Basic
Cost," as used herein with respect to any period for which any part of the
premises is sublet, shall mean the sum of (i) fixed rent at the Applicable
Rental Rate for each square foot of the rentable area of such part of the
premises, and (ii) the
<PAGE> 69
amount payable by the Tenant to the Landlord for such period with respect to
such part of the premises pursuant to Article Twenty-fourth hereof, (iii) the
amount, if any, applicable to such period as a result of the amortization on a
straight line basis over the term for which such part of the premises is so
sublet for any brokerage commissions and reasonable legal fees paid by the
Tenant in connection therewith, and (iv) the amount, if any, applicable to such
period as a result of the amortization on a straight line basis over the term
for which such part of the premises is so sublet of any costs incurred by the
Tenant in making changes in the layout and finish of such part of the premises
at the request of the sublessee but only to the extent that such costs are not
reimbursed by such sublessee.
The Tenant shall deliver to the Landlord a statement within 30 days after
the end of each calendar year in which any part of the term of this Lease occurs
specifying as to such calendar year, and within 30 days after the expiration or
earlier termination the term of this Lease specifying with respect to the
elapsed portion of the calendar year in which such expiration or termination
occurs (a) each sublease in effect during the period covered by such statement
and as to each sublease, the date of its execution and delivery, the number of
square feet of the rentable area demised thereby, the term thereof, and a
computation in reasonable detail showing whether or not anything is payable by
the Tenant to the Landlord pursuant to this Article with respect to such
sublease for the period covered by such statement; and (b) whether or not
anything is payable by the Tenant to the Landlord pursuant to this Article with
respect to any payments received from a sublessee during such period but which
relate to an earlier period and showing in reasonable detail the computation of
the amount so payable.
<PAGE> 70
THIRTIETH. Brokerage Commission. The Tenant represents and warrants that
neither it nor any of its directors, officers, employees or agents has acted so
as to entitle any broker, other than Wilrock National, Inc., of No. 485 Madison
Avenue, New York, N.Y. 10022 to a commission in connection with this
transaction.
The Tenant shall indemnify and save harmless the Landlord and its officers,
directors, agents and employees from and against all liability, claims, suits,
demands, judgments, costs, interest and expenses (including counsel fees and
disbursements incurred in the defense thereof) to which the Landlord or any such
officer, director, agent or employee may be subject or suffer by reason of any
claim made by any person, firm or corporation, other than the said Wilrock
National, Inc., for any commission, expense or other compensation as a result of
the execution and delivery of this Lease or the demising of the premises by the
Landlord to the Tenant pursuant to this Lease.
<PAGE> 71
THIRTY-FIRST. Extra Space. If this Lease shall at the time be in full force
and effect and the term hereof shall not have expired or terminated, the
Landlord will not prior to the second anniversary of the term commencement date
enter into a lease with any other person, firm or corporation covering the
demise of the space substantially as shown crosshatched on the diagram attached
hereto as Exhibit A and designated space "H" on the 15th Floor of the Building
(herein called an "Extra Space") until a period of 10 business days shall have
elapsed after the Landlord shall have notified the Tenant that such Extra Space
is or will be available for leasing. The Landlord agrees that, if so requested
by the Tenant, it will negotiate in good faith with the Tenant during said
period of 10 business days for the leasing of such Extra Space to the Tenant
upon terms mutually satisfactory to the Landlord and the Tenant. If such
mutually satisfactory terms with respect to any Extra Space have not been agreed
to by the Landlord and the Tenant by the end of such period of 10 business days,
then the Landlord shall have no further obligation to the Tenant with respect to
such Extra Space.
<PAGE> 72
THIRTY-SECOND. Security. The Tenant shall at all times maintain on deposit
with the Landlord cash in the amount of $27,935.00 as security for the full and
faithful keeping, observance and performance of all of the covenants,
agreements, terms, provisions and conditions of this Lease provided to be kept,
observed or performed by the Tenant (expressly including, without being limited
to, the payment as and when due of the fixed rent, percentage rent, if any,
additional rent and any other sums or damages payable by the Tenant under this
Lease) and the payment of any and all other damages for which the Tenant shall
be liable by reason of any act or omission contrary to any of said covenants,
agreements, terms, provisions or conditions. If at any time the Tenant shall be
in default in the payment as aforesaid of any such fixed rent, percentage rent,
additional rent, and/or any other sums or damages or shall otherwise be in
default in the keeping, observance or performance of any of the covenants,
agreements, terms, provisions or conditions of this Lease, then at the
Landlord's election, the cash on deposit with it as aforesaid may be applied by
the Landlord to the payment of the fixed rent, percentage rent, additional rent,
other sums or damages in respect to which the Tenant is so in default and/or, if
the Tenant is otherwise in default in the keeping, observing or performing as
aforesaid of any of the covenants, agreements, terms, provisions or conditions
of this Lease, said cash on deposit may be applied by the Landlord to the
payment of such costs and expenses as the Landlord shall incur in curing any
such default. If at any time the Landlord is required to return or repay to the
Tenant, for any reason in connection with the bankruptcy or insolvency of the
Tenant, any fixed rent, percentage rent, additional rent, and/or any other sums
paid by the Tenant to the Landlord under the Lease, then at the Landlord's
election the cash on deposit with it as aforesaid may be applied by the Landlord
to offset such return or repayment. If as a result of any such application of
any such cash, the amount of cash so on deposit with the Landlord shall at any
time be less than that hereinabove specified, the Tenant shall forthwith deposit
with the Landlord additional cash in an amount equal to the deficiency. If, at
the expiration of the term of this Lease, all of said fixed rent, percentage
rent, if any, additional rent, other sums or damages, costs or expenses shall
have been paid by the Tenant to the Landlord and the Tenant shall not be in
default in the keeping, observance or performance of any other covenant,
agreement, term, provision or condition of this Lease, then the Landlord shall
return to the Tenant all, or such part of the cash, if any, then on deposit with
the Landlord pursuant to this Article, together with any interest earned
thereon.
In lieu of maintaining on deposit with the Landlord cash as aforesaid, the
Tenant may maintain with the Landlord an irrevocable letter of credit issued by
a New York
<PAGE> 73
clearing house bank in the amount of $27,935.00 drawable upon by the Landlord,
either in partial draws or in one full draw, at any time when cash on deposit
with it as aforesaid might and to the extent could have been applied by the
Landlord pursuant to the first paragraph of this Article upon the delivery to
said bank of the Landlord's certificate to such effect, and otherwise containing
terms and conditions satisfactory to the Landlord. The Landlord shall use any
amount so drawn in accordance with said first paragraph. If at any time the sum
of the amount drawable pursuant to said letter of credit plus any cash on
deposit with the Landlord pursuant to this Article shall be less than the amount
of $27,935.00, the Tenant agrees forthwith to deposit with the Landlord cash
equal to such deficiency.
If any letter of credit so maintained with the Landlord provides that the
amount drawable pursuant to said letter of credit shall cease to be available on
a date prior to October 31, 1992, the Tenant shall, at least 30 days prior to
the date specified in said letter of credit as being the date on which such
drawable amount will cease to be available, either furnish to the Landlord a
renewal or extension of said letter of credit, a new letter of credit complying
herewith, or deposit with the Landlord such amount of cash as shall, when added
to any cash then on deposit with the Landlord, equal the amount of $27,935.00.
Failure to comply with the provisions of the preceding sentence prior to the
commencement of said 30-day period shall be deemed to be a default under this
Lease and the Landlord may, at any time during said 30-day period, draw upon
such letter of credit and retain as security hereunder the amount so drawn.
Any cash deposit shall be kept in a federally insured interest bearing
account in New York City.
<PAGE> 74
FINALLY. QUIET ENJOYMENT. If, and so long as, the Tenant keeps, observes
and performs each and every covenant, agreement, term, provision and condition
herein contained on the part of the Tenant to be kept, observed and performed,
the Tenant shall quietly enjoy the premises without hindrance or molestation by
the Landlord or by any other person lawfully claiming the same, subject,
however, to the covenants, agreements, terms, provisions and conditions of this
Lease and to the underlying leases and the underlying mortgages to which this
Lease is subject and subordinate, as hereinbefore provided.
IN WITNESS WHEREOF, the Landlord and the Tenant have duly executed this
Lease as of the day and year first above written.
ROCKEFELLER CENTER PROPERTIES,
BY ROCKEFELLER CENTER MANAGEMENT
CORPORATION, ITS AGENT
By /s/ [ILLEGIBLE]
----------------------------------------
President
Attest:
/s/ [ILLEGIBLE]
- ----------------------------------
Assistant Secretary
THE REALLY USEFUL COMPANY, INC.,
By /s/ [ILLEGIBLE]
------------------------------------(L.S.)
Vice President
Attest:
/s/ MARY TOMARUP
- ----------------------------------
Secretary
<PAGE> 75
RULES AND REGULATIONS
1. The rights of the Tenant in the sidewalks, entrances, corridors,
elevators and escalators of the Building are limited to ingress to and egress
from the premises for the Tenant and its employees, licensees and invitees, and
the Tenant shall not invite to the premises, nor permit the visit thereto by,
persons in such numbers or under such conditions as to interfere with the use
and enjoyment by others of the sidewalks, entrances, corridors, elevators,
escalators or any other facilities of the Building. Fire exits and stairways are
for emergency use only, and they shall not be used for any other purpose by the
Tenant, its employees, licensees or invitees. The Landlord shall have the right
to regulate the use of and operate the public portions of the Building, as well
as portions furnished for the common use of the tenants, in such manner as it
deems best for the benefit of the tenants generally.
2. The Landlord may refuse admission to the Building outside of ordinary
business hours to any person not having a pass issued by the Landlord or not
properly identified, and may require all persons admitted to or leaving the
Building outside of ordinary business hours to register. Any person whose
presence in the Building at any time shall, in the judgment of the Landlord, be
prejudicial to the safety, character, reputation and interests of the Building
or of its tenants may be denied access to the Building or may be ejected
therefrom. In case of invasion, riot, public excitement or other commotion the
Landlord may prohibit all access to the Building during the continuance of the
same, by closing doors or otherwise, for the safety of the tenants or protection
of property in the Building. The Landlord shall, in no way, be liable to the
Tenant for damages or loss arising from the admission, exclusion or ejection of
any person to or from the premises or the Building under the provisions of this
rule. The Landlord may require any person leaving the Building with any package
or other object to exhibit a pass from the tenant from whose premises the
package or object is being removed, but the establishment or enforcement of such
requirement shall not impose any responsibility on the Landlord for the
protection of the Tenant against the removal of property from the premises of
the Tenant.
3. The Tenant shall not obtain or accept for use in the premises ice,
drinking water, food, beverage, towel, linen, uniform, barbering, bootblacking
or similar or related services from any persons not authorized by the Landlord
to furnish such services. Such services shall be furnished only at such hours,
in such places within the premises and under such regulations as may be fixed by
the Landlord.
4. Where any damage to the public portions of the Building or to any
portions used in common with other tenants is caused by the Tenant or its
employees, licensees or invitees, the cost of repairing the same shall be paid
by the Tenant upon demand.
5. Except in the case of a shop, no lettering, sign, advertisement,
trademark, emblem, notice or object shall be displayed in or on the windows or
doors, or on the outside of the premises, or at any point inside the premises
where the same might be visible outside the premises, except that the name of
the Tenant may be displayed on the entrance door of the premises, subject to the
approval of the Landlord as to the location, size, color and style of such
display. The inscription of the name of the Tenant on the door of the premises
shall be done by the Landlord and the expense thereof shall be paid by the
Tenant to the Landlord.
6. No awnings or other projections of any kind over or around the windows
or entrances of the premises shall be installed by the Tenant, and only such
window blinds and shades as are approved or supplied by the Landlord shall be
used in the premises. Linoleum, tile or other floor covering shall be laid in
the premises only in a manner approved by the Landlord.
7. The Landlord shall have the right to prescribe the weight and position
of safes and other objects of excessive weight, and no safe or other object
whose weight exceeds the lawful load for the area upon which it would stand
shall be brought into or kept upon the premises. If, in the judgment of the
Landlord, it is necessary to distribute the concentrated weight of any safe or
heavy object, the work involved in such distribution shall be done in such
manner as the Landlord shall determine and the expense thereof shall be paid by
the Tenant. The moving of safes and other heavy objects shall take place only
upon previous notice to, and at times and in a manner approved by, the Landlord,
and the persons employed to move the same in and out of the Building shall be
acceptable to the Landlord. No machines, machinery or electrical or electronic
equipment or appliances of any kind shall be placed or operated so as to disturb
other tenants. Freight, furniture, business equipment, merchandise and packages
of any description shall be delivered to and removed from the premises only in
the freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by the Landlord.
8. No noise, including the playing of any musical instrument, radio or
television, which,in the judgment of the Landlord, might disturb other tenants
in the Building, shall be made or permitted by the Tenant. No animal shall be
brought into or kept in the Building or the premises. No dangerous, inflammable,
combustible or explosive object or material shall be brought into or kept in the
Building by the Tenant or with the permission of the Tenant, except as permitted
by law and the insurance companies insuring the Building or the property
therein. Any cuspidors or containers or receptacles used as such in the
premises, or for garbage or similar refuse, shall be emptied, cared for and
cleaned by the Tenant.
9. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows in the premises and no lock on any door shall be changed or
altered in any respect. Duplicate keys for the premises and toilet rooms shall
be procured only from the Landlord, and the Tenant shall pay to the Landlord the
Landlord's reasonable charge therefor. Upon the expiration or termination of the
Lease, all keys of the premises and toilet rooms shall be delivered to the
Landlord.
10. All entrance doors in the premises shall be left locked by the Tenant
when the premises are not in use. No door (other than a door in an interior
partition of the premises) shall be left open at any time.
11. The Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed by the Landlord when, in its judgment, it
deems it necessary, desirable or proper for its best interest or for the best
interests of the tenants, and no recision, alteration or waiver of any rule or
regulation in favor of one tenant shall operate as an alteration or waiver in
favor of another tenant. The Landlord shall not be responsible to the Tenant for
the nonobservance or violation by any other tenant of any of the rules or
regulations at any time prescribed by the Landlord.
<PAGE> 76
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THE REALLY USEFUL COMPANY, INC.
[FLOORPLAN]
- --------------------------------------------------------------------------------
ROCKEFELLER CENTER
1 ROCKFELLER PLAZA
<PAGE> 77
EXHIBIT B
CLEANING SPECIFICATIONS
GENERAL
All hard surface flooring to be dust mopped nightly. All other
floor maintenance shall be done at Tenant's expense.
All carpeting and rugs to be carpet swept nightly and vacuumed
twice monthly.
Hand dust nightly all furniture tops and exposed surfaces of
shelves, ledges and bookcases within reach.
Empty and wipe clean all waste baskets nightly and remove the
contents thereof from the premises.
Empty and wipe clean all ash trays and screen all sand urns
nightly.
Wash clean all water fountains and coolers nightly.
Dust all door and other ventilating louvers within reach, as
necessary.
Dust all telephones as necessary.
Sweep all private stairway structures nightly.
All windows are to be washed approximately five times per year.
Do all high dusting approximately once every three months,
namely:
Dust all pictures, frames, charts, graphs and
similar wall hangings not reached in nightly
cleaning.
Dust clean all vertical surfaces, such as
walls, partitions, doors and bucks and other
surfaces not reached in nightly cleaning.
Dust clean all pipes, ventilating and
conditioning louvers, ducts, diffusers, high
mouldings and other high areas not reached in
nightly cleaning.
Dust all lighting fixtures, including
exterior surfaces of diffusers and
enclosures.
Dust all venetian blinds.
CORE LAVATORIES
Sweep and wash all lavatory floors nightly, using
disinfectants.
Wash and disinfect all basins, bowls and urinals nightly.
Wash and disinfect all toilet seats nightly.
Hand dust and clean, washing where necessary, all partitions,
tile walls, dispensers and receptacles in all lavatories and
restrooms nightly.
Empty paper towel receptacles and transport wastepaper from
the premises nightly.
Fill toilet tissue holders nightly (tissue to be furnished by
Landlord).
Empty sanitary disposal receptacles nightly.
Wash interior of wastecans and receptacles at least once a
week.
If core lavatory is within Tenant's space, the soap and towel
dispenser will be filled at Tenant's direction at Tenant's
expense. If core lavatory is on a public corridor, the soap
and towel dispenser will be maintained by Landlord.
<PAGE> 78
PUBLIC AND CORE AREAS AND ELEVATORS
Dust mop all floors nightly and wash once a week. Spray buff
resilient tile flooring on a semi-monthly schedule.
Inspect, maintain and keep clean firehoses, extinguishers and
similar equipment as necessary.
Spot wash wall of corridors and public stairways as necessary.
Empty and screen all cigarette urns daily.
Mop floor in public stairwells once per week.
Dust elevator doors and frames, and Building directories as
required.
* * * * * * * *
"Nightly", as used herein, shall be exclusive of Saturdays, Sundays and
holidays. "Holidays", as used herein, shall mean any day which is specified as
a holiday for all union members in the applicable building service union
agreement (as distinguished from days which are specified as holidays in such
union agreement on an individual basis such as a member's birthday or a death
of a relative).
<PAGE> 79
2
improvements, installations and appurtenances are herein sometimes called "the
additional space".
The term of the Lease for which the additional space is hereby leased
and demised shall commence on September 1, 1993 (subject to Article Second of
the Lease) or on such earlier date as the Tenant shall occupy the additional
space with the consent of the Landlord (such date for the commencement of the
term with respect to the additional space being herein called "the additional
space term commencement date") and shall end on September 30, 2002 or on such
earlier date upon which said term may expire or be terminated pursuant to any
of the conditions of limitation or other provisions of the Lease or pursuant to
law.
For the portion of the term of the Lease for which the additional
space is hereby leased and demised, the fixed rent reserved under the Original
Lease shall be increased by the following amount: $35,150.00 per annum and the
Tenant does hereby covenant and agree to pay said fixed rent as so increased
and the additional rent and percentage rent (if any) payable under the Lease,
at the times and in the manner specified in the Lease for the payment of fixed
rent, additional rent and percentage rent (if any). Notwithstanding the
foregoing, the fixed rent payable hereunder shall be abated at the rate of
$35,150.00 per annum during the period commencing on the additional space term
commencement date and ending one-hundred fifty (150) days thereafter, which
said abatement shall not be deemed to be an "abatement of the fixed rent"
within the meaning of the fourth paragraph of Article Twenty-fourth of the
Lease.
The term "the premises" as used in the Lease shall be deemed to
include the additional space except with respect to the provisions of Article
Twenty-fourth of the Lease and except that, in applying the provisions of
Article Second of the Lease to the additional space, (a) "the premises" shall
be deemed to refer to the additional space only, (b) "the term commencement
date" referred to in said Article shall be deemed to mean the additional space
term commencement date, and (c) "the specific date hereinabove designated for
the commencement of the term" with respect to the additional space shall be
deemed the date which in said Article is referred to as "the specific date
hereinabove designated for the commencement of the term hereof" and except
that, unless herein in this Supplemental Indenture otherwise expressly
provided, nothing herein contained shall give to the Tenant any option for the
renewal or extension of the term hereby granted with respect to the additional
space.
<PAGE> 80
3
(2) In applying the provisions of Article First of the Original
Lease to the additional space, the sixth paragraph such Article shall be deemed
to read as follows:
"In determining the rentable area and, where applicable, the useable
area of any budding in the Center or any portion thereof pursuant to
any provision of this Lease, the rentable area or useable area of such
building or such portion, as the case may be, shall be the rentable
area or useable area thereof in square feet determined in accordance
with the Standard Method of Floor Measurement for Office Buildings
approved by The Real Estate Board of New York, Inc., which became
effective on January 1, 1987, assuming a 20% loss factor from rentable
to useable.
(3) Effective on and after execution and delivery of this
Supplemental Indenture, the first paragraph of Article Fourth of the Original
Lease shall be amended by adding the following after the third sentence of said
paragraph:
"The Tenant shall (i) close up any slab penetration in the premises
and (ii) remove any safes, vault areas, lead-lined rooms, conveyors,
pneumatic tubes, internal elevators, and mechanical and electrical
room and telephone switchrooms and the equipment therein installed in
the premises by the Tenant."
(4) Effective on and after execution and delivery of this
Supplemental Indenture, Article Sixth of the Original Lease shall be amended by
deleting in its entirety subparagraph (j) thereof and the word "and" which
precedes it, and substituting therefor the following two subparagraphs to read
as follows:
"(j) indemnify, and save harmless, the Landlord, and its
agents and partners and its and their respective contractors,
licensees, invitees, servants, officers, directors, agents and
employees, any mortgagee under any underlying mortgage and any
landlord under any of the underlying leases (the "Indemnitees") from
and against all liability (statutory or otherwise), claims, suits,
demands, damages, judgments, costs, interest and expenses (including
reasonable counsel fees and disbursements incurred in the defense
thereof) to which any Indemnitee may (except insofar as it arises
solely out of the negligence of any such Indemnitee in the operation
and maintenance of the Building) be subject or suffer whether by
reason of, or by reason of any claim for, any injury to, or death of,
any person or persons or damage to property (including any loss of use
thereof) or otherwise arising from or in connection with the use of,
or from any work or thing whatsoever done in, any part of the premises
or the Center
<PAGE> 81
4
(other than by such Indemnitee) during the term of this Lease or
during the period of time, if any, prior to the commencement of such
term that the Tenant may have been given access to such part for the
purpose of doing work or otherwise, or as a result of the Tenant, any
other occupant of the premises (other than the Landlord), any
affiliate thereof, or any of their respective employees, officers,
directors, partners, contractors, agents, licensees or invitees (each,
a "Tenant Party") performing any such work or otherwise that subjects
any Indemnitee to any Requirement (as hereinafter defined) to which
such Indemnitee would not otherwise be subject, or arising from any
condition of the premises due to or resulting from any default by the
Tenant in the keeping, observance or performance of any provision
contained in this Lease or from any act or negligence of any Tenant
Party; and
(k) maintain, at all times during the term of this Lease
and during any other times the Tenant is granted access to the
premises, a policy or policies of commercial general liability
insurance (including, without limitation, insurance of the Tenant's
contractual liability under this Lease) with the premiums fully paid
on or before the due date, issued by a reputable insurance company
licensed to do business in the State of New York, having a minimum
rating A- by A.M. Best & Company or such other financial rating as the
Landlord may at any time consider appropriate, and reasonably
acceptable to the Landlord. Such insurance shall afford minimum limits
as the Landlord may reasonably designate from time to time, but in no
event less than $3,000,000 per occurrence with a $5,000,000 aggregate
in respect of injury or death to any number of persons and not less
than $3,000,000 for damage to or loss of use of property in any one
occurrence. Each such policy shall provide that it cannot be canceled
except upon thirty (30) days' prior notice to the Landlord and shall
name the Indemnitees and such other designees as the Landlord may from
time to time designate as additional insureds thereunder. The Tenant
shall furnish original certificates of such insurance to the Landlord
prior to the term commencement date (or any date on which the Tenant
is granted earlier access) and thereafter not less than thirty (30)
days prior to the expiration of each such policy and any renewals or
replacements thereof."
(5) Effective on and after execution and delivery of this
Supplemental Indenture, the first paragraph of Article Eleventh of the Original
Lease shall be amended in the following respects, namely:
<PAGE> 82
5
(a) by deleting the words, "either" where it appears just
prior to the beginning of subdivision (i) and "or" where it appears at
the end of subdivision (i), of the first sentence of said paragraph;
(b) by adding subdivision (iii) to the end of the first
sentence in said paragraph, to read as follows:
"or (iii) all laws, ordinances, rules, orders and regulations
of all governmental and quasi-governmental authorities and of
all insurance bodies, at any time duly issued and in force
(herein called "Requirements") having as a primary purpose the
benefit of disabled persons." and
(c) by adding the following sentence to the end of said
paragraph:
'For the purpose of this Article, providing and installing of
sprinklers shall be deemed to be a non-structural alteration."
(6) It is expressly agreed and understood that in applying the
provisions of Article Twenty-fourth of the Original Lease to any part of the
additional space, the first paragraph of said Article shall be amended to read
as follows:
"If the sum of the Building Square Foot Share of the Real
Estate Taxes for any Computation Year plus 110% of the Center Square
Foot Share of the Cost of Operation and Maintenance for such
Computation Year shall be greater (resulting in an excess) or shall be
less (resulting in a deficiency) than the sum of the Building Square
Foot Share of the Real Estate Taxes for the twelve month period ending
on June 30, 1994, plus 110% of the Center Square Foot Share of the Cost
of Operation and Maintenance for the Computation Year ending on
December 31, 1993, then promptly after the Landlord shall furnish the
Tenant with an Escalation Statement relating to such Computation Year
the Tenant shall, in case of such an excess, pay to the Landlord, as
additional rent for the premises for such Computation Year, an amount
equal to the product obtained by multiplying such excess by the
Tenant's Area and the Landlord shall, in case of such a deficiency, pay
to the Tenant an amount equal to the product obtained by multiplying
such deficiency by the Tenant's Area."
(7) Effective upon execution and delivery of this Supplemental
Indenture, Article Twenty-fifth of the Original Lease shall be amended by
adding the following paragraphs to the end of said Article:
<PAGE> 83
6
"If the Tenant holds-over in the premises after the expiration
or termination of this Lease without the consent of the Landlord, the
Tenant shall:
(a) pay as hold-over rental for each month of the
hold-over tenancy an amount equal to the greater of (i) one
and one-half times the fair market rental value of the
premises for such month (as reasonably determined by Landlord)
or (ii) one and one-half times the fixed rent which Tenant was
obligated to pay for the month immediately preceding the
expiration or termination of this Lease;
(b) be liable to the Landlord for (i) any payment
or rent concession which Landlord may be required to make to
any tenant obtained by the Landlord for all or any part of the
premises (a "New Tenant") in order to induce such New Tenant
not to terminate its lease by reason of the holding-over by
the Tenant and (ii) the loss of the benefit of the bargain if
any New Tenant shall terminate its lease by reason of the
holding-over by the Tenant; and
(c) indemnify the Landlord against all claims for
damages by any New Tenant.
No holding-over by the Tenant, nor the payment to the Landlord of the
amounts specified above, shall operate to extend the term of this
Lease.
Any obligation of the Landlord or the Tenant which by its
nature or under the circumstances can only be, or by the provisions of
this Lease may be, performed after the expiration or earlier
termination of this Lease, and any liability for a payment which shall
have accrued to or with respect to any period ending at the time of
such expiration or termination, unless expressly otherwise provided in
this Lease, shall survive the expiration or earlier termination of
this Lease. If there is any payment required to be made by the Tenant
under this Lease for which no time period is stated within which the
payment must be made, such payment shall be made within thirty (30)
days after demand by the Landlord."
(8) In applying the provisions of Article Twenty-ninth of the
Original Lease to any part of the additional space, the third paragraph of said
Article shall be amended to read as follows:
"The term "Applicable Rental Rate" as used in this Article shall be
deemed to mean $37.00 per annum.
<PAGE> 84
7
(9) Effective upon execution and delivery of this Supplemental
Indenture, a new Article to be numbered Thirty-third shall be added to the
Original Lease immediately after Article Thirty-second thereof reading as
follows:
"HAZARDOUS SUBSTANCES. The Tenant shall not (i) cause or
permit to be brought to the Building, the Land or the Center any
hazardous substances, (ii) cause or permit the storage or use of
hazardous substances in any manner not permitted by any Requirements
applicable to the Land, the Building or the premises or any part
thereof, to the Tenant's use thereof or to the Tenant's observance of
any provision of this Lease, or (iii) cause or permit the escape,
disposal or release of any hazardous substances on or in the vicinity
of the Building, Land or Center; provided, that nothing herein shall
prevent the Tenant's use of any hazardous substances customarily used
in the ordinary course of office work if such use is for such ordinary
course of office work and is in accordance with all Requirements
applicable to the Land, the Building or the premises or any part
thereof, to the Tenant's use thereof or to the Tenant's observance of
any provision of this Lease.
'Hazardous substances' are (i) any 'hazardous wastes' as
defined by the Resource, Conservation and Recovery Act of 1976 (42
U.S.C. Section 6901 et seq.), as amended, and regulations promulgated
thereunder; (ii) any hazardous, toxic or dangerous waste, substance or
material' specifically defined as such in (or for purposes of) the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980 (42 U.S.C. Section 9601 et seq.), as amended, and regulations
promulgated thereunder; and (iii) any hazardous, toxic or dangerous
chemical, biological or other waste, substance or material as defined
in any so-called 'superfund' or 'superlien' law or any other federal,
state or local statute, law, ordinance, code, rule, regulation, order
or decree regulating, relating to or imposing liability or standards
of conduct concerning such waste, substance or material; including,
without limiting the generality of the foregoing, asbestos, radon,
urea formaldehyde, polychlorinated biphenyls, and petroleum products
including gasoline, fuel oil, crude oil and various constituents of
such products. Without limiting the generality of subparagraph (j) of
Article Sixth hereof, the Tenant agrees that the covenants and
warranties contained in this Article are included within the matters
as to which the Indemnitees shall be indemnified pursuant to said
subparagraph (j) of Article Sixth hereof.
The covenants contained in this Article shall survive the
expiration or earlier termination of this Lease."
<PAGE> 85
8
(10) Work by Tenant. The Tenant shall promptly submit to the
Landlord, for the Landlord's approval, complete architectural and mechanical
working drawings and specifications showing a proposed renovation of that
portion of the additional space reserved for the Tenant's use (herein called
"the Work, Area") as desired by the Tenant consistent with the, design,
construction and equipment of the Building and in conformity with its
standards, all in such form and in such detail as may be reasonably required by
the Landlord including the installation of a sprinkler system. The working
drawings and specifications to be submitted to the Landlord as aforesaid shall
be prepared by a competent architect licensed in the State of New York (in
consultation with a competent engineer where required by the nature of the
work), reasonably satisfactory to the Landlord, who shall be engaged by the
Tenant and who, at the Tenant's expense, shall furnish all architectural and
engineering services necessary for the preparation of said working drawings and
specifications and in connection with securing the aforesaid approval thereof
by the Landlord and with the securing by the Tenant of such approvals as by
reason of the nature of the work shown on said working drawings and
specifications, may be required from the Department of Buildings of the City of
New York and any other governmental authorities.
If the Landlord shall not approve any working drawing or specification
as submitted by the Tenant, the Landlord shall with reasonable promptness
notify the Tenant thereof and of the particulars of such revisions therein as
are reasonably required by the Landlord for the purpose of obtaining its said
approval and as promptly as reasonably possible after being so informed by the
Landlord, the Tenant shall submit to the Landlord, for the Landlord's approval
(which approval shall not be unreasonably withheld), a working drawing or
specification, as the case may be, incorporating such revisions or
incorporating such modifications thereto as are suggested by the Tenant and
approved by the Landlord (said working drawings and specifications, as so
approved, being herein called "the Working Drawings"). Any such approval by the
Landlord shall not be deemed to be a representation or warranty that the same
is properly designed to perform the function for which it is intended or
complies with any applicable laws, ordinances, rules orders and regulations of
all governmental and quasi-governmental authorities and of all insurance
bodies, at any time duly issued and in force, but only that the work required
thereby will not interfere with the systems of the Building and is compatible
with the design and structure of the Building.
Such renovation shall be performed in accordance with, and subject to
all of the terms and conditions of the Lease (including, but not limited to,
subparagraph (e) of
<PAGE> 86
9
Article Sixth thereof). Upon the approval by the Landlord of the Working
Drawings, the Tenant shall proceed with due dispatch to cause the work as shown
on such approved Working Drawings to be done at the Tenant's sole cost and
expense (subject to reimbursement as hereinafter provided).
The workmen and the contractors performing the work and the manner,
terms and conditions upon which the same is performed shall be satisfactory to
and approved by the Landlord. The work shall at all times comply with (a) all
applicable laws, ordinances, rules orders and regulations of all governmental
and quasi-governmental authorities and of all insurance bodies, at any time
duly issued and in force having jurisdiction with respect thereto, and (b) with
the reasonable rules and regulations of the Landlord pertaining to the
performance thereof.
Upon the completion of the work, the Tenant shall deliver to the
Landlord (i) general releases and waivers of lien from all contractors,
subcontractors and materialmen involved in the performance of the work and the
materials furnished in connection therewith, (ii) a certificate from the
Tenant's architect certifying that the work has been completed in accordance
with this Lease, all applicable rules and regulations of the Landlord, all
Requirements and the Working Drawings, and (iii) a certificate signed by the
Tenant's general contractor stating that all contractors, subcontractors and
materialmen have been paid for all work and materials furnished through such
date. Notwithstanding the foregoing, but in all events subject to the Tenant's
obligation to keep the Premises and the Building free of liens, the Tenant
shall not be required to deliver to the Landlord any general release or waiver
of lien, as required by the preceding sentence, if the Tenant shall be
disputing in good faith the payment which would otherwise entitle the Tenant to
such release or waiver, provided that the Tenant shall keep the Landlord
advised in a timely fashion of the status of any such dispute and the basis
therefor and the Tenant shall deliver to the Landlord the general release or
waiver of lien when any such dispute is settled.
The Landlord agrees that upon receipt by it of evidence satisfactory
to it (as provided in the immediately preceding paragraph hereof) of the
completion of such work in a manner reasonably satisfactory to the Landlord,
and upon the furnishing by the Tenant to the Landlord of the evidence (as
provided in such immediately preceding paragraph) of the payment therefor by
the Tenant, the Landlord shall reimburse to the Tenant the lesser of (i) the
actual cost of such work, or (ii) $42,750.00.
<PAGE> 87
10
(11) BROKERAGE COMMISSION. The Tenant represents and warrants that
neither it nor any of its directors, officers, employees or agents has acted so
as to entitle any brokers, other than Wilrock National, Inc., 485 Madison
Avenue, New York, N.Y. 10022 and Rockefeller Center Management Corporation, to a
commission in connection with this transaction.
The Tenant represents and warrants that neither it nor any of its
directors, officers, employees or agents has acted so as to entitle any broker
to a commission, reimbursement or other compensation arising from or in
connection with this transaction. The Tenant shall indemnify and save harmless
the Landlord and its officers, directors, agents and employees from and against
all liability, claims, suits, demands, judgments, costs, interest and expenses
(including counsel fees and disbursements incurred in the defense thereof) to
which the Landlord or any such officer, director, agent or employee may be
subject or suffer by reason of any claim made by any person, firm or
corporation for any commission, reimbursement or other compensation arising
from or as a result of the execution and delivery of this Supplemental
Indenture or the demising of the premises by the Landlord to the Tenant
pursuant to this Supplemental Indenture.
(12) EXTRA SPACE. If the Lease shall at the time be in full force
and effect and the term hereof shall not have expired or terminated, the
Landlord will not enter at any time prior to August 31, 1996, into a lease with
any other person, firm or corporation covering the demise of space 'B' on the
15th Floor of the Building as shown hatched on the diagram attached hereto as
Exhibit B (herein called an "Extra Space"), until a period of ten (10) days
shall have elapsed after the Landlord shall have notified the Tenant that such
Extra Space is or will be available for leasing. The Landlord agrees that, if
so requested by the Tenant, it will negotiate in good faith with the Tenant
during said period of ten (10) days for the leasing of such Extra Space to the
Tenant upon terms mutually satisfactory to the Landlord and the Tenant, which
shall, with the exception of the financial terms, be substantially the terms
and conditions of the Lease. If such mutually satisfactory terms with respect
to any Extra Space have not been agreed to by the Landlord and the Tenant in a
written agreement, fully executed and unconditionally delivered by both parties
by the end of such period of ten (10) days, then the Landlord shall have no
further obligation to the Tenant with respect to such Extra Space.
Notwithstanding anything hereinbefore contained to the contrary, the
Extra Space shall not be deemed to be available for leasing to the Tenant if
(i) the Landlord renews or
<PAGE> 88
11
extends, in whole or in part, the then existing lease covering the Extra Space
or leases all or any part of the Extra Space to the present lessee of the Extra
Space, or (ii) the Extra Space has been previously offered to the Tenant and
the Tenant has not exercised such option or the Landlord and the Tenant failed
to achieve mutually satisfactory terms with respect to a prior offer of the
Extra Space.
(13) THE ORIGINAL LEASE, as hereby amended, shall remain in full
force and effect according to its terms and conditions.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Supplemental Indenture as of the day and year first above written.
ROCKEFELLER CENTER PROPERTIES,
By ROCKEFELLER CENTER MANAGEMENT
CORPORATION, its Agent
By /s/ [ILLEGIBLE]
-----------------------------------
Vice President
Attest:
/s/ [ILLEGIBLE]
- -----------------------------------
Assistant Secretary
THE REALLY USEFUL COMPANY, INC.
By /s/ [ILLEGIBLE]
-----------------------------------
Vice President
Attest:
/s/ [ILLEGIBLE]
- -----------------------------------
Assistant Secretary
<PAGE> 89
EXHIBIT A
[ROCKEFELLER PLAZA DIAGRAM]
THE REALLY USEFUL COMPANY, INC.
ALL AREAS AND DIMENSIONS
ARE APPROXIMATE
7-27-93
LP#47OML
ROCKEFELLER CENTER
I ROCKEFELLER PLAZA
<PAGE> 90
EXHIBIT B
[ROCKEFELLER CENTER DIAGRAM]
THE REALLY USEFUL COMPANY, INC.
ALL AREAS AND DIMENSIONS
ARE APPROXIMATE
LP#478ML
ROCKEFELLER CENTER
OPTION SPACE
<PAGE> 91
[LOGO]
SUPPLEMENTAL INDENTURE, dated June 10, 1994, between ROCKEFELLER CENTER
PROPERTIES, a partnership, having an office at No. 1230 Avenue of the Americas,
New York, N.Y. 10020 (herein called "the Landlord"), and THE REALLY USEFUL
COMPANY, INC., a Delaware corporation, having an office at No. One Rockefeller
Plaza, New York, N.Y. 10020 (herein called "the Tenant").
By Lease dated July 15, 1992, as the same heretofore may have been
amended (herein called "the Original Lease"), certain premises, as therein
described, in the building known as One Rockefeller Plaza (herein called "the
Building") in Rockefeller Center (herein called "the Center"), in the Borough
of Manhattan, New York, N.Y., are now leased and demised by the Landlord to the
Tenant.
The parties hereto mutually desire to amend the Original Lease as
herein set forth, and are executing and delivering this Supplemental Indenture
for such purpose (the Original Lease as amended by this Supplemental Indenture
is herein called "the Lease").
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, that the
parties hereto, in consideration of the terms and conditions herein contained,
hereby amend the Original Lease in the following respects, and only in the
following respects:
(1) DEMISE OF ADDITIONAL SPACE, TERM AND RENT. The Landlord does
hereby lease and demise to the Tenant, and the Tenant does hereby hire and take
from the Landlord, subject and subordinate to the underlying leases and the
underlying mortgages (as defined in the Original Lease), and upon and subject
to the terms and conditions of the for the term hereinafter stated, the
space(s) substantially as shown hatched on the diagram(s) attached hereto as
Exhibit A and designated as 'G' on the 15th Floor of the Building, together
with all fixtures, equipment, improvements, installations and appurtenances
which at the commencement of or during the term of the Lease with respect to
said space(s) are thereto attached (except items not deemed to be included
therein and removable by the Tenant as provided in Article Fourth of the
Lease); which space(s), fixtures, equipment,
<PAGE> 92
improvements, installations and appurtenances are herein sometimes called "the
additional space".
The term of the Lease for which the additional space is hereby leased
and demised shall commence on July 1, 1994 (subject to Article Second of the
Lease) or on such earlier date as the Tenant shall occupy the additional space
with the consent of the Landlord (such date for the commencement of the term
with respect to the additional space being herein called "the additional space
term commencement date") and shall end on September 30, 2002 or an such earlier
date upon which said term may expire or be terminated pursuant to any of the
conditions of limitation or other provisions of the Lease or pursuant to law.
For the portion of the term of the Lease for which the additional
space is hereby leased and demised, the fixed rent reserved under the Original
Lease shall be increased by the following amount(s): $8,025.00 per annum and
the Tenant does hereby covenant and agree to pay said fixed rent as so
increased and the additional rent and percentage rent (if any) payable under
the Lease, at the times and in the manner specified in the Lease for the
payment of fixed rent, additional rent and percentage rent (if any), except
that, if the additional space term commencement date shall be other than the
first day of a calendar month, the amount by which the first monthly
installment of said fixed rent is so increased, apportioned for the part month
in question, shall be payable on the additional space term commencement date.
The term "the premises" as used in the Lease shall be deemed to
include the additional space except that, in applying the provisions of Article
Second of the Lease to the additional space, (a) "the premises" shall be deemed
to refer to the additional space only, (b) "the term commencement date"
referred to in said Article shall be deemed to mean the additional space term
commencement date, and (c) "the specific date hereinabove designated for the
commencement of the term" with respect to the additional space shall be deemed
the date which in said Article is referred to as "the specific date hereinabove
designated for the commencement of the term hereof" and except that, unless
herein in this Supplemental Indenture otherwise expressly provided, nothing
herein contained shall give to the Tenant any option for the renewal or
extension of the term hereby granted with respect to the additional space.
<PAGE> 93
(2) TERMINATION BY LANDLORD. The Landlord may elect to terminate
the Lease with respect to the additional space only, as of the last day of any
calendar month, by giving to the Tenant not less than thirty (30) days prior
notice (as to which time is of the essence) of such termination date (the
"Landlord Termination Date").
In the event of the timely giving of such notice, the lease, with
respect to the additional space only (unless the same shall have expired sooner
pursuant to any of the other conditions of limitation or provisions or this
Lease or pursuant to law), shall terminate on the Landlord Termination Date
with the same effect as if (the Landlord Termination Date were the date
hereinbefore specified for the expiration of the full term granted by the
Lease. The Tenant agrees to terminate its occupancy of the additional space not
later than the Landlord Termination Date and the fixed rent hereunder shall be
apportioned as of such date.
(3) TERMINATION BY TENANT. The Tenant may elect to terminate the
Lease with respect to the additional space only, as of the last day of any
calendar month, by giving to the Landlord not less than thirty (30) days prior
notice (as to which time is of the essence) of such termination date (the
"Tenant Termination Date").
In the event of the timely giving of such notice, the Lease, with
respect to the additional space only (unless the same shall have expired sooner
pursuant to any of the other conditions of limitation or provisions of this
Lease or pursuant to Law), shall terminate on the Tenant Termination Date with
the same effect as if the Tenant Termination Date were the date hereinbefore
specified for the expiration of the full term granted by the Lease. The Tenant
shall terminate its occupancy of the additional space not later than the Tenant
Termination Date and the fixed rent hereunder shall be apportioned as of such
date.
With respect to a termination under Articles (2) or (3) of this
Supplemental Indenture, the Tenant shall complete and timely submit all returns
and questionnaires relating to New York City and State real property transfer
tax laws and any other applicable real property transfer or gains tax laws, if
required (the taxes which are (the subject or such laws are hereinafter
collectively called "Transfer Taxes"). The Tenant shall timely pay all Transfer
Taxes, if any, and shall deliver evidence, reasonably acceptable to the
Landlord, of such payment simultaneously to the Landlord. The Tenant shall
indemnify and hold harmless the Landlord from all losses, liabilities,
interest, judgments,
<PAGE> 94
suits, demands, damages, costs and expenses (including attorneys' fees and
disbursements incurred in the defense thereof) which the Landlord may incur by
reason of the Tenant's failure to complete and timely submit any and all
Transfer Tax returns and question and/or the Tenant's failure to timely pay any
and all Transfer Taxes. The provisions of this paragraph shall survive the
expiration of the Lease.
(4) In applying the provisions of Article Twenty-fourth of the
Original Lease to the additional space, the dates "June 30, 1993" and "December
31, 1993" where they appear in the first paragraph of said Article shall be
deemed to be "June 30, 1995" and "December 31, 1994", respectively.
(5) It is expressly understood and agreed that the provisions of
Article Twenty-Ninth and Rider C-1 of the Original Lease shall not be deemed to
apply to the additional space.
(6) BROKERAGE INDEMNIFICATION. The Tenant represents and warrants
that neither it nor any of its directors, officers, employees or agents has
acted so as to entitle any broker to a commission, reimbursement or other
compensation arising from or in connection with this transaction. The Tenant
shall indemnify and save harmless the Landlord and its officers, directors,
agents and employees from and against all liability, claims, suits, demands,
judgments, costs, interest and expenses (including counsel fees and
disbursements incurred in the defense thereof to which the Landlord or any such
officer, director, agent or employee may be subject or suffer by reason of any
claim made by any person, firm or corporation for any commission, reimbursement
or other compensation arising from or as a result of the execution and delivery
of this Supplemental Indenture or the demising of the premises by the Landlord
to the Tenant pursuant to this Supplemental Indenture.
(Continued on next page)
<PAGE> 95
(7) THE ORIGINAL LEASE, as hereby amended, shall remain in full
force and effect according to its terms and conditions.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Supplemental Indenture as of the day and year first above written.
ROCKEFELLER CENTER PROPERTIES,
By ROCKEFELLER CENTER MANAGEMENT
CORPORATION, ITS AGENT
By /s/ [ILLEGIBLE]
-----------------------------------
Vice President
Attest:
/s/ [ILLEGIBLE]
- -----------------------------------
Assistant Secretary
THE REALLY USEFUL COMPANY, INC.
By /s/ [ILLEGIBLE]
-----------------------------------
Vice President
Attest:
/s/ [ILLEGIBLE]
- -----------------------------------
Secretary
<PAGE> 96
EXHIBIT A
[ROCKEFELLER PLAZA DIAGRAM]
THE REALLY USEFUL COMPANY, INC.
ALL AREAS AND DIMENSIONS
ARE APPROXIMATE
ROCKEFELLER CENTER
1 ROCKEFELLER PLAZA
<PAGE> 97
[LOGO]
SUPPLEMENTAL INDENTURE, dated as of April 1, 1996, between ROCKEFELLER
CENTER PROPERTIES, a partnership, having an office at 123O Avenue of the
Americas, New York, N.Y. 10020 (the "Landlord"), and THE REALLY USEFUL COMPANY,
INC., a Delaware corporation, having an office at One Rockefeller Plaza, New
York, New York 10020, (the "Tenant").
By Lease dated July 15, 1992, as the same heretofore may have been
amended (the "Original Lease"), certain premises, as therein described, in the
building known as One Rockefeller Plaza (the "Building") in Rockefeller Center
(the "Center"), in the Borough of Manhattan, New York, N.Y., are now leased and
demised by the Landlord to the Tenant.
The parties hereto mutually desire to amend the Original Lease as
herein set forth, and are executing and delivering this Supplemental Indenture
for such purpose (the Original Lease as amended by this Supplemental Indenture,
the "Lease").
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, that the
parties hereto, in consideration of the terms and conditions herein contained,
hereby amend the Original Lease in the following respects, and only in the
following respects:
(1) DEMISE OF ADDITIONAL SPACE, TERM AND RENT. The Landlord does
hereby lease and demise to the Tenant, and the Tenant does hereby hire and take
from the Landlord, subject and subordinate to the (as defined in the Original
Lease), and upon and subject to the terms and conditions of the Lease for the
term hereinafter stated, the space substantially as shown hatched on the
diagram attached hereto as Exhibit A and designated as 'F' on the 15th Floor of
the Building, together with all fixtures, equipment, improvements,
installations and appurtenances which at the commencement of or during the term
of the Lease with respect to said space are thereto attached (except items not
deemed to be included therein and removable by the Tenant as provided in
Article Fourth); which space, fixtures, equipment, improvements, installations
and appurtenances are sometimes called the "Additional Space".
<PAGE> 98
2
The term of the Lease for which the Additional Space is hereby ]eased
and demised shall commence on April 1, 1996 (subject to Article Second of the
Lease) or on such earlier date as the Landlord shall deliver to the Tenant
possession of the Additional Space (the "Additional Space Term Commencement
Date") and shall end on March 31, 2001 or on such earlier date upon which said
term may expire or be terminated pursuant to any of the conditions of
limitation or other provisions of the Lease or pursuant to law.
For the period of the term of the Lease for which the Additional Space
is hereby leased and demised, the fixed rent reserved under the Original Lease
shall be increased by the following amount: $77,296.80 per annum. The Tenant
does hereby covenant and agree to pay said fixed rent as so increased and the
additional rent payable under the Lease, at the times and in the manner
specified in the Lease for the payment of fixed rent and additional rent,
except that, the Tenant shall pay, upon the execution of this Supplemental
Indenture by the Tenant, $6,441.40 to be applied against the first installment
or installments of fixed rent coming due hereunder. Notwithstanding the
foregoing, the fixed rent payable with respect to the Additional Space shall be
abated at the rate of $77,296.80 per annum during the period commencing on the
(i) Additional Space Term Commencement Date and ending on the date which is
sixty (60) days thereafter, (i) first anniversary of the Additional Space Term
Commencement Date and ending on the date which is sixty (60) days thereafter,
(iii) second anniversary of the Additional Space Term Commencement Date and
ending on the date which is sixty (60) days thereafter and (iv) the third
anniversary of the Additional Space Term Commencement Date and ending on the
date which is thirty (30) days thereafter, which said abatements shall not be
deemed an "abatement of the fixed rent" within the meaning of the fourth
paragraph of Article Twenty-fourth of the Lease.
The term the "Premises" as used in the Lease shall be deemed to
include the Additional Space except that, (I) in applying the provisions of
Article Second of the Lease to the Additional Space, (a) the "Premises" shall
be deemed to mean the Additional Space only, (b) the "term commencement date"
shall be deemed to mean the Additional Space Term Commencement Date, and (c)
the "specific date hereinabove designated for the commencement of the term"
with respect to the Additional Space shall mean the Additional Space Term
Commencement Date and (II) Articles Twenty-sixth, Twenty- seventh,
Twenty-eighth and Rider C-1 shall not apply to the Additional Space. Except as
otherwise expressly provided, nothing herein contained shall give to the Tenant
any option for the renewal or extension of the term hereby granted with respect
to the Additional Space.
<PAGE> 99
3
(2) In applying the provisions of Article First of the Original
Lease to the Additional Space only, the sixth paragraph of such Article shall
be deemed to read as follows:
"In determining the rentable area and, where applicable, the
useable area of any building in the Center or any portion thereof
pursuant to any provision of this Lease, the rentable area or useable
area of such building or such portion, as the case may be, shall be
the rentable area or useable area thereof in square feet determined in
accordance with the Standard Method of Floor Measurement for Office
Buildings approved by The Real Estate Board of New York, Inc., which
became effective on January 1, 1987, assuming a 20% loss factor from
rentable to useable. The parties agree that as of the date hereof the
Additional Space contains 2,408 rentable square feet."
(3) Article Twenty-fourth of the Original Lease, as it applies to
the Additional Space only, shall be amended to read as follows:
"Adjustments for Changes in Landlord's Costs and Expenses.
24.1. If for any Computation Year, the R.E. Tax Share of
the Real Estate Taxes shall be greater than Base Real Estate Taxes, or
110% of the O.E. Share of the Cost of Operation and Maintenance shall
be greater than 110% of the Base COM, then the Tenant shall pay to the
Landlord, as additional rent, an amount equal to the product obtained
by multiplying such excess or excesses by the Tenant's Area.
24.2. In order to provide for current payments on account
of the additional rent which may be payable to the Landlord pursuant
to Section 24.1 of this Article for any Computation Year, the Tenant
agrees to make such payments on account of said additional rent for
and during such Computation Year, as the case may be, as follows:
(a) With respect to Real Estate Taxes, the Tenant
shall pay its share thereof in two semiannual installments in
advance on the first day of June and December, each equal to
the product of the Tenant's Area multiplied by one-half of the
excess of the R.E. Tax Share of the Real Estate Taxes for the
Tax Year in which the Landlord's corresponding tax payment
falls over the Base Real Estate Taxes, it being understood
that if the tax bill for the following Tax Year is not
received in time to bill the June 1 payment, the Landlord may
estimate the payment due on June 1 based on the Landlord's
estimate of the Real Estate Taxes for such following Tax Year.
If, upon issuance of the tax bill for such following Tax Year,
such estimated amount results in an underpayment, the Tenant
shall pay to
<PAGE> 100
4
the Landlord the amount of the underpayment. If, upon issuance
of the tax bill for such following Tax Year, such estimated
amount results in an overpayment, the Landlord shall either
pay to the Tenant an amount equal to the overpayment or permit
the Tenant a credit for such amount against future rent
payments. If there shall be any increase in Real Estate Taxes
for any Tax Year, whether during or after such Tax Year, or if
there shall be any decrease in the Real Estate Taxes for any
Tax Year, whether during or after such Tax Year, the Tenant
shall pay its share of any increase, or, to the extent the
decrease does not reduce the R.E. Tax Share of Real Estate
Taxes below the Base Real Estate Taxes, receive its share of
any decrease, substantially in the same manner as provided in
the preceding two sentences. If during the term of the Lease,
Real Estate Taxes are required to be paid (either to the
appropriate taxing authorities or as a tax escrow to the
holder of an underlying lease or an underlying mortgage), on
any other date or dates than as presently required, then the
Tenant's payments toward Real Estate Taxes shall be
correspondingly accelerated or revised so that such payments
are due at least thirty (30) days prior to the date payments
are due to the taxing authorities or to the holder of an
underlying lease or underlying mortgage.
(b) With respect to Cost of Operation and
Maintenance, the Tenant shall pay an amount each month equal
to the product of the Tenant's Area multiplied by 1/12th of
the excess of 110% of the O.E. Share of the Cost of Operation
and Maintenance for such Computation Year as reasonably
estimated by the Landlord over 110% of the Base COM, the
installment for each calendar month to be due and payable upon
the receipt from the Landlord of a bill for the same. If, as
finally determined, the amount of additional rent payable by
the Tenant to the Landlord pursuant to this subsection for
such Computation Year shall be greater than (resulting in an
underpayment) or be less than (resulting in an overpayment)
the aggregate of all the installments so paid on account to
the Landlord by the Tenant for such Computation Year, then,
promptly after the receipt of the bill for such Computation
Year and, in performance of its obligations under Section
24.1, the Tenant shall, in case of such an underpayment, pay
to the Landlord an amount equal to such underpayment or the
Landlord shall, in case of such an overpayment, either pay to
the Tenant an amount equal to such overpayment or permit the
Tenant a credit for such amount against future rent payments.
<PAGE> 101
5
24.3. As used in this Article:
(a) "Computation Year" shall mean each calendar
year in which occurs any part of the term of this Lease and,
in the case of a Default Termination of this Lease, in which
would have occurred any part of the full term of this Lease
except for such Default Termination.
(b) "Tax Year" shall mean the twelve (12) month
period commencing July 1 of each year, or such other twelve
(12) month period as may be duly adopted as the fiscal year
for real estate tax purposes in The City of New York.
(c) "Tenant's Area" shall mean the number of
square feet in the rentable area of the premises.
(d) "R.E. Tax Share" shall mean a fraction whose
numerator is one and whose denominator is the number of square
feet of the rentable area of the Center (excluding from such
denominator the number of rentable square feet in any portion
of the Center (i) not leased to the Tenant and for which Real
Estate Taxes are not payable in full, or (ii) for which the
Real Estate Taxes are payable directly in whole or in part by
any person, firm or corporation other than the Landlord,
without reimbursement by the Landlord or (iii) at the
Landlord's election, constituting a condominium unit not
wholly or partially ]eased to the Tenant); provided that the
Landlord may elect to limit the denominator to only the number
of square feet in the rentable area of the Building if the
Landlord makes a similar election for all buildings it owns in
the Center.
(e) "O. E. Share" shall mean a fraction whose
numerator is one and whose denominator is the number of square
feet in the rentable area of all buildings in the Center
exclusive of the rentable area of any such building or any
structure on any such building operated and maintained by and
at the expense of any person, firm or corporation (other than
the Landlord or, at Landlord's election, any affiliate of
Landlord) or of any theater or garage located in the Center;
provided that the Landlord may elect to limit the denominator
to only the number of square feet in the rentable area of the
Building if the Landlord makes a similar election for all
buildings it owns in the Center.
(f) "Real Estate Taxes" shall mean the taxes and
assessments imposed upon the Center (to the extent the
<PAGE> 102
6
Landlord does not make the election in the proviso of
subsection (d) above), including without limitation
assessments made as a result of the Center or part thereof
being within a business improvement district (other than any
interest or penalties imposed in connection therewith), and
all expenses, including fees and disbursements of counsel and
experts, reasonably incurred by, or reimbursable by, the
Landlord in connection with any application for a reduction in
the assessed valuation for the Center or for a judicial review
thereof (but in no event shall expenses be included in Base
Real Estate Taxes). If due to a future change in the method of
taxation any franchise, income, profit or other tax shall be
levied against the Landlord in substitution in whole or in
part for or in lieu of any tax which would otherwise
constitute a Real Estate Tax, such franchise, income, profit
or other tax shall be deemed to be a Real Estate Tax for the
purposes of this Lease. Real Estate Taxes shall not include
any portion thereof (i) allocable to an area not leased to the
Tenant and for which what would otherwise be Real Estate Taxes
are not payable in full (ii) payable directly, in whole or in
part, by a person, firm, entity or corporation other than the
Landlord, without reimbursement by the Landlord, or (iii)
allocable to a condominium unit that the Landlord elects
pursuant to clause (d) above to exclude from the calculation
of R.E. Tax Share.
(g) "Cost of Operation and Maintenance" shall
mean the actual cost incurred by the Landlord or its
affiliates with respect to the ownership, operation,
maintenance and repair of the Center (to the extent the Center
is included in the calculation of O.E. Share, it being
understood that if less than the entire Center is included in
such calculation, then Cost of Operation and Maintenance shall
include a portion of the common area expenses of the Center in
the same proportion as the rentable area of the building or
buildings included in the calculation of O.E. Share bears to
the aggregate rentable area in all buildings in the Center)
and the curbs and sidewalks adjoining the same, including,
without limitation, the cost incurred for air conditioning;
mechanical ventilation; heating; interior and exterior
cleaning; rubbish removal; window washing (interior and
exterior, including inside partitions); elevators; escalators;
hand tools and other moveable equipment to the extent same are
not required to be capitalized in accordance with good
accounting practice; porter and matron service; electric
current, steam, water and other utilities; association fees
and dues; protection and security service; repairs;
maintenance; compliance with any
<PAGE> 103
7
preservation or similar easement, declaration or agreement
containing covenants, restrictions or agreements in respect of
maintenance of the Building and/or the Land as a landmark site
to the extent same are not required to be capitalized in
accordance with good accounting practice; fire, extended
coverage, boiler, sprinkler, apparatus, rental income, public
liability and property damage insurance; supplies; wages,
salaries, disability benefits, pensions, hospitalization,
retirement plans and group insurance respecting service and
maintenance employees, building superintendents, concierges,
managers, their assistants and clerical staffs, and persons
engaged in supervision of the foregoing; uniforms and working
clothes for such employees and the cleaning thereof; expenses
imposed pursuant to any collective bargaining agreement with
respect to such employees; payroll, social security,
unemployment and other similar taxes with respect to such
employees; sales, use and other similar taxes; vault charges;
franchise fees payable in connection with the concourse levels
of the Center; water rates; sewer rents; charges of any
independent contractor who does any work with respect to the
operation, maintenance and repair of the Center and the curbs
and sidewalks adjoining the same; legal, accounting and other
professional fees; decorations; and the annual depreciation or
amortization over the useful life thereof of costs, including
financing costs, incurred for any equipment, device or other
capital improvement made or acquired which is either intended
as a laborsaving measure or to effect other economies in the
operation, maintenance or repair of the Center and said curbs
and sidewalks (but only to the extent that the annual benefits
anticipated to be realized therefrom are reasonably related to
the annual amount to be amortized) or which is required by any
Requirement; provided, that the term "Cost of Operation and
Maintenance" shall not include (1) Real Estate Taxes, special
assessments, franchise taxes or taxes imposed upon or measured
by the income or profits of the Landlord, (2) except for
depreciation and amortization specifically provided for in
this subsection, the cost of any item which is, or should in
accordance with good accounting practice be, capitalized on
the books of the Landlord, (3) the cost of any electricity
furnished to the premises or an other space in the Center
demised to other tenants, (4) the cost of any work or service
performed for any tenant of space in the Center (including the
Tenant) at such tenant's cost and expense, (5) any costs
incurred with respect to any theater or garage located in the
Center, (6) costs of alterations, improvements or additions to
the premises of any
<PAGE> 104
8
other tenant other then repair and maintenance thereof and
items required by law or insurance requirements, (7) interest
and amortization of any debts, including mortgage
indebtedness, and any rents payable in respect to any
underlying lease, (8) the costs of any salary payable to, or
the cost of any fringe benefits in connection with, the
Chairman of the Board, the President, or any Vice President
(other than any Vice President in the Operating Division) of
the Landlord and their respective secretaries, (9) the cost of
soliciting prospective tenants (including brokerage or other
leasing commissions) and of preparing and executing leases,
(10) the cost of any repair of any damage caused by fire or
other casualty to the extent that the cost of such repair is
covered by insurance or the Landlord is entitled to be
reimbursed therefor by any tenant in addition to the rent
payable by such tenant, (11) the cost of any repair
necessitated by the taking by condemnation of any part of the
Center to the extent that the Landlord is entitled to be
reimbursed therefor by the condemning authority, (12) any
legal or auditing fees, or (13) any amount paid as ground rent
by the Landlord. If during any period for which the Cost of
Operation and Maintenance is being computed the Landlord is
not for all or any part of such period furnishing any
particular work or service (the cost of which if performed by
the Landlord would constitute a Cost of Operation and
Maintenance) to a portion of the Center due to the fact that
such portion is not ]eased to a tenant or that the Landlord is
not obligated to perform such work or service in such portion,
then the amount of the Cost of Operation and Maintenance for
such period shall be deemed, for the purposes of this Article,
to be increased by an amount equal to the additional Cost of
Operation and Maintenance which would reasonably have been
incurred during such period by the Landlord if it had
furnished such work or service.
(h) "Base Real Estate Taxes" shall mean the R.E.
Tax Share of the Real Estate Taxes for the Tax Year beginning
on July 1, 1996 and ending on June 30, 1997.
(i) "Base COM" shall mean the O.E. Share of the
Cost of Operation and Maintenance for the Computation Year
beginning on January 1, 1996 and ending on December 31, 1996.
24.4. If the term commencement date shall be a day other than
a January 1 or the date fixed for the expiration of the full term of
this
<PAGE> 105
9
Lease shall be a day other than December 31, or if there is any
abatement of the fixed rent payable under this Lease (other than a
rent abatement pursuant to Article First) or any termination of this
Lease (other than a Default Termination), or if there is any increase
or decrease in the Tenant's Area, then in each such event in applying
the provisions of this Article with respect to any Tax Year or
Computation Year in which such event occurred, appropriate adjustments
shall be made to reflect the result of such event on a basis
consistent with the principles underlying the provisions of this
Article, taking into consideration (i) the portion of such Tax Year or
Computation Year, as the case may be, which shall have elapsed prior
to or after such event, (ii) the rentable area of the premises
affected thereby, and (iii) the duration of such event.
24.5. The Tenant shall not (and hereby waives any and all
rights it may now or hereafter have to) institute or maintain any
action, proceeding or application in any court or other body having
the power to fix or review assessed valuations, for the purpose of
reducing the Real Estate Taxes.
24.6. In the event the Landlord fails to bill the Tenant
for Tenant's share of Real Estate Taxes or Cost of Operation and
Maintenance by the time such amounts would otherwise be due and
payable hereunder, the Tenant shall pay the amount most recently
billed for the item in question, subject to subsequent adjustment to
reflect the correct amount due."
24.7. When requested by the Tenant within six (6) months
following the receipt by it of any Escalation Statement, the Landlord,
in substantiation of its determination of the amounts set forth in
said Escalation Statement, will furnish to the Tenant such additional
information as reasonably may be required for such purpose, and, as
may be necessary for the verification of such information, will permit
the pertinent records of the Landlord to be examined by an officer of
the Tenant or by such independent certified public accountant as the
Tenant may designate; it being expressly understood that the Landlord
shall be under no duty to preserve any such records, or any data or
material related thereto, beyond such time as shall be its customary
practice with respect thereto.
(3) In applying the provisions of Article Twenty-ninth of the Original
Lease to the Additional Space only, the term "Applicable Rental Rate" shall
mean $32.10 per annum.
<PAGE> 106
10
(4) Effective on and after April 1, 1996, Article Thirty-second of
the Original Lease shall be amended by deleting the figure "$27,935.00" where
it appears in the first, second and third paragraphs thereof and substituting
therefore the figure "$40,817.80".
(5) INITIAL ALTERATION BY TENANT. (a) The Tenant shall promptly
submit to the Landlord, for the Landlord's review and consent, architectural,
electrical and mechanical working drawings and specifications showing the
proposed Alteration (as defined in the Original Lease) of the Additional Space
as desired by the Tenant and in keeping with the landmark status of, and
consistent with the design, construction and equipment of, the Building and the
Center and in conformity with its standards, all in such form and in such
detail as may be reasonably required by the Landlord. The working drawings and
specifications to be submitted to the Landlord as aforesaid shall be prepared
by a competent architect licensed in the State of New York (in consultation
with a competent engineer licensed in the State of New York where required by
the nature of the Alteration), reasonably satisfactory to the Landlord, who
shall be engaged by the Tenant and who, at the Tenant's expense, shall furnish
all architectural and engineering services necessary, including, without
limitation, hydraulic calculations, for the preparation of said working
drawings and specifications and in connection with securing the aforesaid
consent thereof by the Landlord and with the securing by the Tenant of such
consents as, by reason of the nature of the Alteration shown on said working
drawings and specifications may be required from the Department of Buildings
of the City of New York and any other governmental or quasi-governmental
authorities, including, without limitation, Landmarks Preservation Commission
of the City of New York. The Tenant shall submit the working drawings and
specifications for review by the Landlord at eighty percent (80%) of
completion.
(b) If the Landlord shall not consent to any working drawing or
specification as submitted by the Tenant, the Landlord shall notify the Tenant
thereof and of the particulars of such revisions therein as are reasonably
required by the Landlord for the purpose of obtaining its said consent. As
promptly as reasonably possible after being so informed by the Landlord, the
Tenant shall submit to the Landlord for the Landlord's consent, a working
drawing or specification, as the case may be, incorporating such revisions or
incorporating such modifications thereto as are suggested by the Tenant and
consented to by the Landlord (said working drawings and specifications, as so
consented to, the "Working Drawings"). Any such consent by the Landlord shall
not be deemed to be a representation or warranty that the same is properly
designed to perform the function for
<PAGE> 107
11
which it is intended or complies with any applicable Requirement (as defined in
the Original Lease), but only that the Alteration is compatible with the design
and structure of the Building.
(c) Such Working Drawings, the Landlord's review and consent
thereto, the Alteration and the performance thereof shall all be in accordance
with, and subject to all of the terms and conditions of the Lease (including,
but not limited to, Section 6.1 (e)(i) - (vi) of the Original Lease), and shall
at all times comply with (a) all applicable Requirements, and (b) with the
reasonable rules, regulations and guidelines of the Landlord. Upon the consent
by the Landlord of the Working Drawings, the Tenant shall proceed with due
dispatch to cause the Alteration as shown on such Working Drawings to be
completed at the Tenant's sole cost and expense, which Alteration shall
include, but not be limited to: (i) provide and install a demising wall in the
Additional Space to separate the Additional Space from the space adjacent
thereto, (ii) provide and install a new electrical meter in the Additional
Space in accordance with the terms and provisions of Section 5.1. of the
Original Lease and (iii) installation of a sprinkler system and fire alarm
system for the Additional Space.
(d) Notwithstanding anything to the contrary contained herein, the
Tenant shall leave open the area of the ceiling surrounding the demising
wall(s) to be installed by the Tenant pursuant to this Article (11) until such
time as the Landlord has inspected the installation of such demising wall(s).
The Landlord agrees to conduct such inspection within two (2) business days
following notice to the Landlord from the Tenant that such demising wall(s)
have been installed by the Tenant.
(e) Within thirty (30) days after substantial completion of the
Alteration, the Tenant shall deliver to the Landlord (i) copies of paid
receipts certified by an officer of the Tenant, (ii) general releases and
waivers of lien from all consultants, contractors, subcontractors and
materialmen involved in the performance of the Alteration and the materials
furnished in connection therewith and (iii) a certificate from the Tenant's
architect certifying that the Alteration has been completed in accordance with
the Lease, the reasonable rules, regulations and guidelines of the Landlord
and the Working Drawings, and (iv) record drawings and specifications of the
Additional Space reflecting the Alteration as each is provided for in Section
6.1. (e)(vi) of the Original Lease. Notwithstanding the foregoing, but in all
events subject to the Tenant's obligation to keep the Additional Space and the
Building free of liens, the Tenant shall not be required to
<PAGE> 108
12
deliver to the Landlord any general release or waiver of lien, as required by
the preceding sentence, if the Tenant shall be disputing in good faith the
payment which would otherwise entitle the Tenant to such release or waiver,
provided that the Tenant shall (a) keep the Landlord advised in a timely
fashion of the status of any such dispute and the basis therefor, (b) maintain
on deposit with the Landlord such security as the Landlord may reasonably
request in connection with such disputed payment, and (c) deliver to the
Landlord the general release or waiver of lien when any such dispute is
settled.
(f) The Landlord agrees that (i) if the Tenant is not then in
default under the Lease, (ii) upon receipt by it of evidence satisfactory to it
(as provided in subsection (e) above) of the completion of such work in a
manner reasonably satisfactory to the Landlord, and (iii) upon the furnishing
by the Tenant to the Landlord, to the attention of its Director of Billing &
Cash Applications, of the evidence (as provided in subsection (e) above) of the
payment therefor by the Tenant, the Landlord shall reimburse to the Tenant the
lesser of (a) the payment of the actual cost of such work, or (ii) $12,040.00.
(6) BROKERAGE INDEMNIFICATION. The Tenant represents that the only
broker with which it has dealt in connection with this Supplemental Indenture
is Rockefeller Center Management Corporation, having an office at 1230 Avenue
of the Americas, New York, N.Y. 10020. The Tenant shall indemnify, defend (with
legal counsel reasonably acceptable to the Landlord) and save harmless the
Landlord and its officers, directors, agents and employees (the "Indemnitees")
from and against all liability, claims, suits, demands, judgments, costs,
interest and expenses (including counsel fees and disbursements incurred in the
defense thereof) to which the Indemnitees may be subject or suffer by reason of
any claim made by any person, firm or corporation other than the aforementioned
broker for any commission, reimbursement or other compensation arising from or
as a result of the execution and delivery of this Supplemental Indenture or the
demising of the premises by the Landlord to the Tenant pursuant to this
Supplemental Indenture.
(continued on the next page)
<PAGE> 109
13
(7) THE ORIGINAL LEASE, as hereby amended, shall remain in full
force and effect according to its terms and conditions.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Supplemental Indenture as of the day and year first above written.
ROCKEFELLER CENTER PROPERTIES,
BY ROCKEFELLER CENTER MANAGEMENT
CORPORATION, ITS AGENT
By /s/ [ILLEGIBLE]
-----------------------------------
President
Attest:
/s/ [ILLEGIBLE]
- -----------------------------------
Assistant Secretary
THE REALLY USEFUL COMPANY, INC.
By /s/ [ILLEGIBLE]
-----------------------------------
President
Attest:
/s/ [ILLEGIBLE]
- -----------------------------------
Assistant Secretary
<PAGE> 110
[ROCKEFELLER PLAZA DIAGRAM]
REALLY USEFUL COMPANY, INC.
ALL AREAS AND DIMENSIONS
ARE APPROXIMATE
ROCKEFELLER CENTER
1 ROCKEFELLER PLAZA
<PAGE> 111
FIRST AMENDMENT TO LEASE
This FIRST AMENDMENT TO LEASE, dated May 16, 1997 (this "Amendment"),
between RCPI TRUST, having an office c/o Tishman Speyer Properties, L.P., 45
Rockefeller Plaza, New York, New York 10111 ("Landlord") and THE REALLY USEFUL
COMPANY, INC. having an office at One Rockefeller Plaza, New York, New York
10020 ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord's predecessor-in-interest, Rockefeller Center
Properties, and Tenant executed and exchanged that certain Lease, dated July
15, 1992, as modified and amended by Supplemental Indenture, dated August 16,
1993 (the "First Supplemental Indenture"), the Supplemental Indenture, dated
June 10, 1994 (the "Second Supplemental Indenture"), and Supplemental
Indenture, dated as of April 1, 1996 (the "Third Supplemental Indenture"), (as
so modified and amended, the "Original Lease"), covering Spaces 'D', 'G', and
'H' (collectively, the "Original Premises") and Space 'F' (the "Space F
Premises") on the 15th floor of the building located at One Rockefeller Plaza,
New York, New York (the "Building"); as more particularly described in the
Original Lease;
WHEREAS, Landlord and Tenant desire to extend the term of the Original
Lease with respect to the Space F Premises so that the term of the Original
Lease shall be co-terminus with respect to the Original Premises and the Space
F Premises, and to otherwise modify the terms and conditions of the Original
Lease, as hereinafter provided (the Original Lease, as modified by this
Amendment, the "Lease").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Landlord and Tenant agree as
follows:
1. Capitalized Terms; Recitals. All capitalized terms used herein
and not otherwise defined in this Amendment shall have the meanings ascribed to
them in the Original Lease. The recital clauses set forth above are
incorporated herein by this reference.
2. Extension of Term. The term of the Original Lease with respect
to the Space F Premises is hereby extended by extending the date for the
expiration of the term set forth therein from March 31, 2001 (the "Original
Expiration Date") to September 30, 2002 (the "Extended Expiration Date") (or
such earlier date upon which the term of the Lease may expire or terminate
pursuant to the terms of the Lease), with the same force and effect as if the
term as so extended was the term granted by the Original Lease.
<PAGE> 112
-2-
3. Rent. For the period commencing on the Original Expiration
Date and ending on the Extended Expiration Date, the fixed rent payable with
respect to the Space F Premises shall be $84,280.00 per annum ($7,023.33 per
month) which amount shall be payable, together with all other fixed and
additional rent payable under the Lease, at the times and in the manner
specified in the Original Lease.
4. Subletting. Notwithstanding Article Twenty-Ninth of the
Original Lease, Landlord shall not in any event be obligated to consent to any
proposed subletting unless there shall be no more than three subtenants of the
Premises.
5. Broadcast Restrictions. Tenant hereby agrees that neither
Tenant, nor any other occupant of the Premises, any affiliates thereof, nor any
of its respective employees, officers, directors, partners, contractors,
agents, licensees or invitees (each, a "Tenant Party"), shall (i) conduct or
permit to be conducted any Broadcast activities or video production activities
from any area of the Center, (ii) install or display any signs, symbols or
logos within the Center which are commonly identified with any Broadcast or
cable network or any Broadcast or video production activities or (iii) use or
permit the use of Protected Zone Images in any Broadcast. "Broadcast" means the
transmission of video programming, including news footage clips, by any means,
including over-the-air television broadcasting, cable television distribution
and the like, and including successor distribution technologies which are
comparable to the foregoing (but "Broadcast" shall not be deemed to include
teleconferencing, private video telephone communications or other similar means
of video transmission which are not intended for public distribution).
"Protected Zone Images" means visual images of the area (or any portion
thereof) consisting of the Plaza, the Plaza Street, the Channel Gardens, the
Center skating rink and areas adjacent thereto, as shown on the diagram of the
Protected Zone attached as Exhibit A hereto.
6. Brokerage.
(a) Each of Landlord and Tenant represents and warrants to the
other that it has not dealt with any broker in connection with this Amendment
other than Tishman Speyer Properties, L.P. ("Broker") and that, to the best of
its knowledge, no other broker negotiated this Amendment or is entitled to any
fee or commission in connection herewith. Landlord will be solely responsible
for any commission that may be payable to Broker in connection with this
Amendment. The execution and delivery of this Amendment by each party shall be
conclusive evidence that each party has relied upon the foregoing
representations and warranties.
(b) Each of Landlord and Tenant shall indemnify, defend, protect
and hold the other party harmless from and against any and all losses,
liabilities, damages, claims, judgments, fines, suits, demands, costs, interest
and expenses of any kind or nature (including reasonable attorneys' fees and
disbursements) incurred in connection with any claim, proceeding or judgment
and the defense thereof which the indemnified party may incur by reason of any
claim of or liability to any broker, finder or like agent (other than Broker)
arising out of any dealings claimed to have
<PAGE> 113
-3-
occurred between the indemnifying party and the claimant in connection with
this Amendment, or the above representation being false. The provisions of this
Paragraph 6 shall survive the expiration or earlier termination of the term of
this Amendment.
7. No Modification. Except as set forth herein, nothing contained
in this Amendment shall be deemed to amend or modify in any respect the terms,
provisions, or conditions of the Original Lease and such terms, provisions, and
conditions shall remain in full force and effect as modified hereby.
8. Representations. Landlord and Tenant each represents and
warrants to the other that as of the date hereof, (i) the Lease is in full
force and effect and (ii) no written notices of default have been delivered by
Landlord or Tenant to the other party and remain outstanding. Tenant hereby
represents and warrants to Landlord that this Amendment has been duly
authorized, executed and delivered by Tenant and constitutes the legal, valid
and binding obligation of Tenant.
9. Miscellaneous.
(a) This Amendment contains the entire understanding of the
parties with respect to the subject matter hereof.
(b) This Amendment shall be governed by the laws of the State of
New York without giving effect to conflict of laws principles thereof.
(c) This Amendment shall be binding upon and inure to the benefit
of Landlord and Tenant and their successors and permitted assigns.
(d) The captions, headings, and titles in this Amendment are
solely for convenience of reference and shall not affect its interpretation.
(e) This Amendment shall not be binding upon Landlord or Tenant
unless and until Landlord shall have delivered a fully executed counterpart of
this Amendment to Tenant.
(continued on next page)
<PAGE> 114
-4-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment
as of the day and year first above written.
LANDLORD:
RCPI TRUST
By: Tishman Speyer Properties, L.P., its Agent
By: /s/ PHILIP M. WATERMAN III
----------------------------------- AS
Philip M. Waterman III
TENANT:
THE REALLY USEFUL COMPANY, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------
Name: President
Title: [ILLEGIBLE]
<PAGE> 115
THE REALLY USEFUL COMPANY, INC.
FURNITURE INCLUDED IN SUBLEASE OF
1 ROCKEFELLER PLAZA, SUITE 1528
<TABLE>
<CAPTION>
Finance Mgmt
<S> <C>
work stations: 7 work stations: 10
mobile files cabinets: 7 mobile files cabinets: 8
burgundy chairs: 10 burgundy chairs w/castors 6
blue chair 1 black chair w/castors 1
Desks: 2 (Beth and Nel's) all wall shelves
Nel's Credenza 2 burgundy sled chairs (Susan & Dana's Offices)
Edgar's desk Green work station table
credenza 2 black bookcase (Susan & Dana's Offices)
audio cabinet 5 black desks
wood phone table 1 brown wood desk
Edgar's black & gray phone table
Robert's desk
3 blue chairs (Robert's office)
1 desk (Adrienne's office)
1 chair (Adrienne's office)
1 white book shelf (Adrienne's office)
gray filing cabinet (Adrienne's Office)
2 standing lamps (Nel's office & reception)
2 plants (reception)
6 black wood chairs (reception)
1 plant stand & plant (small conference room)
Mosaic phone table (small conference room)
wall unit (small conference room)
1 brown round table (conference room)
4 stack chairs
mgmt 3 pushed together table (large conference room)
all wall shelves
fax & printer wall shelves
1 gray half filing cabinet
1 brown wood armchair
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (No. 333-41043) of Abacus Direct Corporation of our report
dated January 26, 1998 appearing on page F-1 of this Annual Report on Form 10-K.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Boulder, Colorado
March 31, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> DEC-31-1997
<CASH> 10,490
<SECURITIES> 0
<RECEIVABLES> 8,907
<ALLOWANCES> 787
<INVENTORY> 0
<CURRENT-ASSETS> 19,527
<PP&E> 5,841
<DEPRECIATION> 2,776
<TOTAL-ASSETS> 22,592
<CURRENT-LIABILITIES> 3,400
<BONDS> 0
0
0
<COMMON> 10
<OTHER-SE> 19,167
<TOTAL-LIABILITY-AND-EQUITY> 22,592
<SALES> 0
<TOTAL-REVENUES> 30,971
<CGS> 5,942
<TOTAL-COSTS> 13,418
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 412
<INTEREST-EXPENSE> 5
<INCOME-PRETAX> 11,806
<INCOME-TAX> 4,309
<INCOME-CONTINUING> 11,611
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 7,497
<EPS-PRIMARY> .78
<EPS-DILUTED> .74
</TABLE>
