<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED June 30, 1999.
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OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
AND EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM ______ TO _______.
Commission File Number 1-12793
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STARTEK, INC.
- --------------------------------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 84-1370538
- -------------------------------------------------------------- ------------------------------------
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
</TABLE>
111 HAVANA STREET
DENVER, COLORADO 80010
----------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
(ZIP CODE)
(303) 361-6000
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(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
NOT APPLICABLE
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(FORMER NAME, FORMER ADDRESS AND FORMER FISCAL YEAR, IF CHANGED
SINCE LAST REPORT)
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
--- ---
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practical date.
Common Stock, $.01 Par Value-- 13,856,421 shares as of August 12, 1999.
<PAGE> 2
STARTEK, INC.
FORM 10-Q
INDEX
<TABLE>
<CAPTION>
Page
PART I. FINANCIAL INFORMATION Number
--------------------- ------
<S> <C>
Item 1. Financial Statements (unaudited)
Condensed Consolidated Balance Sheets -
December 31, 1998 and June 30, 1999 3
Condensed Consolidated Statements of Operations Three months ended
June 30, 1998 and 1999;
Six months ended June 30, 1998 and 1999 4
Condensed Consolidated Statements of Cash Flows -
Six months ended June 30, 1998 and 1999 5
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9
Item 3. Quantitative and Qualitative Disclosure About
Market Risk 14
PART II. OTHER INFORMATION
-----------------
Item 2. Changes in Securities and Use of Proceeds 17
Item 4. Submission of Matters to a Vote of Security Holders 17
Item 6. Exhibits and Reports on Form 8-K 18
SIGNATURES 19
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</TABLE>
2
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS (UNAUDITED)
STARTEK, INC. AND SUBSIDIARIES
Condensed Consolidated Balance Sheets
(dollars in thousands)
<TABLE>
<CAPTION>
DECEMBER 31 JUNE 30
1998 1999
----------- --------
(unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 19,593 $ 14,295
Investments 16,829 27,374
Trade accounts receivable, less allowance for
doubtful accounts of $441 and $622, respectively 20,476 13,378
Inventories 2,772 1,700
Deferred tax assets 1,135 1,649
Prepaid expenses and other 165 228
-------- --------
Total current assets 60,970 58,624
Property, plant and equipment, net 19,171 20,965
Other assets 60 78
-------- --------
Total assets $ 80,201 $ 79,667
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 17,433 $ 11,074
Accrued liabilities 2,092 3,702
Income taxes payable 1,944 628
Current portion of capital lease obligations 46 32
Current portion of long-term debt 906 935
Other 213 488
-------- --------
Total current liabilities 22,634 16,859
Capital lease obligations, less current portion 77 58
Long-term debt, less current portion 3,196 2,738
Deferred income taxes 144 545
Other 17 7
Stockholders' equity:
Common stock 138 138
Additional paid-in capital 41,661 41,848
Cumulative translation adjustment 167 22
Unrealized loss on investments available for sale (606) (238)
Retained earnings 12,773 17,690
-------- --------
Total stockholders' equity 54,133 59,460
-------- --------
Total liabilities and stockholders' equity $ 80,201 $ 79,667
======== ========
</TABLE>
See notes to condensed consolidated financial statements.
3
<PAGE> 4
STARTEK, INC. AND SUBSIDIARIES
Condensed Consolidated Statements of Operations
(dollars in thousands, except per share data)
(unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30 SIX MONTHS ENDED JUNE 30
------------------------- -------------------------
1998 1999 1998 1999
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Revenues $ 24,692 $ 45,723 $ 49,013 $ 86,573
Cost of services 20,008 37,216 39,765 70,380
----------- ----------- ----------- -----------
Gross profit 4,684 8,507 9,248 16,193
Selling, general and administrative
expenses 3,285 5,202 6,017 9,631
----------- ----------- ----------- -----------
Operating profit 1,399 3,305 3,231 6,562
Net interest income and other 702 668 1,244 1,270
----------- ----------- ----------- -----------
Income before income taxes 2,101 3,973 4,475 7,832
Income tax expense 763 1,483 1,625 2,915
----------- ----------- ----------- -----------
Net income $ 1,338 $ 2,490 $ 2,850 $ 4,917
=========== =========== =========== ===========
Basic and diluted net income per share $ 0.10 $ 0.18 $ 0.21 $ 0.36
Weighted average shares outstanding 13,828,571 13,832,246 13,828,571 13,830,419
</TABLE>
See notes to condensed consolidated financial statements.
4
<PAGE> 5
STARTEK, INC. AND SUBSIDIARIES
Condensed Consolidated Statements of Cash Flows
(dollars in thousands)
(unaudited)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30
--------------------
1998 1999
-------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 2,850 $ 4,917
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation and amortization 1,180 1,892
Deferred income taxes (346) (354)
(Gain) loss on sale of assets (135) 3
Changes in operating assets and liabilities:
Accounts receivable 2,728 7,098
Inventories 1,692 1,072
Prepaid expenses and other assets (377) (81)
Accounts payable (4,055) (6,359)
Income taxes payable (106) (1,316)
Accrued and other liabilities 481 1,875
-------- --------
Net cash provided by operating activities 3,912 8,747
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of property, plant and equipment (7,478) (3,812)
Proceeds from disposition of property, plant and equipment 176 2
Purchases of investments available for sale (9,986) (13,399)
Proceeds from disposition of investments available for sale -- 5,821
Purchases of trading securities -- (14,401)
Proceeds from disposition of trading securities -- 12,251
-------- --------
Net cash used in investing activities (17,288) (13,538)
CASH FLOWS FROM FINANCING ACTIVITIES
Stock options exercised -- 187
Principal payments on borrowings -- (429)
Principal payments on capital lease obligations (51) (33)
-------- --------
Net cash used in financing activities (51) (275)
Effect of exchange rate changes on cash 13 (232)
-------- --------
Net decrease in cash and cash equivalents (13,414) (5,298)
Cash and cash equivalents at beginning of period 26,960 19,593
-------- --------
Cash and cash equivalents at end of period $ 13,546 $ 14,295
======== ========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
Cash paid for interest $ 41 $ 141
Income taxes paid $ 1,800 $ 4,550
SUPPLEMENTAL DISCLOSURE OF NON-CASH ACTIVITY
Change in unrealized loss on investments available
for sale, net of tax $ (184) $ 368
</TABLE>
See notes to condensed consolidated financial statements.
5
<PAGE> 6
STARTEK, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(dollars in thousands, except per share data)
(unaudited)
1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements
have been prepared in accordance with generally accepted accounting principles
for interim financial information and with the instructions to Form 10-Q and
Article 10 of Regulation S-X. Accordingly, they do not include all of the
information and footnotes required by generally accepted accounting principles
for complete financial statements. In the opinion of management, all adjustments
(consisting of normal recurring accruals) considered necessary for a fair
presentation have been included. Operating results for the three and six months
ended June 30, 1999 are not necessarily indicative of the results that may be
expected for the year ending December 31, 1999, or for any other interim period
of 1999.
The balance sheet as of December 31, 1998 has been derived from the
audited financial statements at that date but does not include all of the
information and footnotes required by generally accepted accounting principles
for complete financial statements. For further information, refer to the
consolidated financial statements and footnotes thereto included in StarTek,
Inc.'s annual report on Form 10-K for the year ended December 31, 1998.
2. DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES
In June 1998, the FASB issued Statement of Financial Accounting
Standards No. 133, ("SFAS No. 133") "Accounting for Derivative Instruments and
Hedging Activities". SFAS No. 133 establishes accounting and reporting standards
requiring that every derivative instrument (including certain derivative
instruments embedded in other contracts) be recorded in the balance sheet as
either an asset or liability measured at its fair value. SFAS No. 133 requires
that changes in the derivative's fair value be recognized currently in earnings
unless specific hedge accounting criteria are met. Special accounting for
qualifying hedges allow a derivative's gains and losses to offset related
results on the hedged item in the statement of operations, and requires that a
company must formally document, designate, and assess the effectiveness of
transactions that receive hedge accounting treatment. SFAS No. 133 is effective
for fiscal years beginning after June 15, 2000. The Company has not yet
quantified the impacts of adopting SFAS No. 133 on its consolidated financial
statements and has not determined the timing or method of adoption of SFAS No.
133.
3. EARNINGS PER SHARE
In the fourth quarter of 1997, the Company adopted Statement of
Financial Accounting Standards No. 128, ("SFAS 128") "Earnings per Share", which
supersedes Accounting Principles Board Opinion No. 15. Under SFAS 128, basic
earnings per common share is computed by dividing net income by the weighted
average number of shares of common stock outstanding during the period. Diluted
earnings per share reflects the potential dilution that could occur if
securities or other contracts to issue common stock were exercised or converted
into common stock or resulted in the issuance of common stock. For the periods
presented, the additional shares assuming dilution had no impact on basic
earnings per share because the average price per share of common stock was less
than the exercise price of the majority of stock options outstanding. The
dilutive effect of stock options with exercise prices less than the average
price per share of common stock during such periods did not change basic
earnings per share.
4. COMPREHENSIVE INCOME
In June 1997, the Financial Accounting Standards Board issued Statement
No. 130, Reporting Comprehensive Income, which was effective in 1998 for the
Company. The statement establishes rules for the reporting and display of
comprehensive income. Comprehensive income is defined essentially as all changes
in stockholders' equity, exclusive of transactions with owners. Comprehensive
income was $1,128 and $2,742 for the three months ended June 30, 1998 and 1999,
respectively. Comprehensive income was $2,679 and $5,140 for the six months
ended June 30, 1998 and 1999, respectively.
6
<PAGE> 7
5. INVESTMENTS
The following is a summary of investments available for sale as of
December 31, 1998:
<TABLE>
<CAPTION>
GROSS GROSS ESTIMATED
UNREALIZED UNREALIZED FAIR
COST GAINS LOSSES VALUE
------- ---------- ---------- ---------
<S> <C> <C> <C> <C>
Corporate bonds $ 8,987 $ 80 $ (239) $ 8,828
Foreign government bonds 2,915 150 (308) 2,757
Bond mutual funds 4,005 1 (132) 3,874
Other debt securities 286 -- (138) 148
Equity securities 1,598 -- (376) 1,222
------- ---- ------- -------
Total $17,791 $231 $(1,193) $16,829
======= ==== ======= =======
</TABLE>
The following is a summary of investments available for sale as of June
30, 1999:
<TABLE>
<CAPTION>
GROSS GROSS ESTIMATED
UNREALIZED UNREALIZED FAIR
COST GAINS LOSSES VALUE
------- ---------- ---------- ---------
<S> <C> <C> <C> <C>
Corporate bonds $16,546 $100 $(224) $16,422
Foreign government bonds 4,416 146 (230) 4,332
Bond mutual funds 1,513 83 -- 1,596
Equity securities 2,495 49 (303) 2,241
------- ---- ----- -------
Total $24,970 $378 $(757) $24,591
======= ==== ===== =======
</TABLE>
The amortized cost and estimated fair value of investments available
for sale as of June 30, 1999, by contractual maturity, are:
<TABLE>
<CAPTION>
ESTIMATED
COST FAIR VALUE
------- ----------
<S> <C> <C>
Corporate bonds and foreign government bonds
maturing within:
One year $ 6,570 $ 6,577
Two to five years 9,707 9,690
Due after five years 4,685 4,487
------- -------
20,962 20,754
Bond mutual funds 1,513 1,596
Equity securities 2,495 2,241
------- -------
Total $24,970 $24,591
======= =======
</TABLE>
Bond mutual funds are primarily invested in investment grade bonds of
U.S. and foreign issuers denominated in U.S. and foreign currencies, and
interests in floating or variable rate senior collateralized loans to
corporations, partnerships, and other entities in a variety of industries and
geographic regions. Equity securities consist of real estate investment trusts,
equity mutual funds, and publicly traded common stock of U.S. based companies.
Investments available for sale are reported at fair value, with the gross
unrealized gains and losses, net of tax reported in a separate component of
stockholders' equity.
As of June 30, 1999, the Company was also invested in trading
securities which, in the aggregate, had an original cost and fair market value
of approximately $2,665 and $2,783, respectively. Trading securities are
recorded on a trade date basis and are carried at fair market values. Fair
market values are determined by the most recently traded price of the security
as of the balance sheet date. Gross unrealized gains and losses are reflected in
income currently, and as part of interest income and other in the accompanying
unaudited consolidated statements of operations. During the three months ended
June 30, 1999, gross unrealized gains and losses were $202 and $84,
respectively. Trading securities consist primarily of publicly traded common
stock of U.S. based companies and international equity mutual funds, together
with certain hedging securities, and various forms of derivative securities.
7
<PAGE> 8
6. INVENTORIES
The Company frequently purchases components of its clients' products as
an integral part of its process management services. At the close of an
accounting period, packaged and assembled products (together with other
associated costs) are reflected as finished goods inventories pending shipment.
The Company generally has the right to be reimbursed from its clients for unused
inventories. Client-owned inventories are not reflected in the Company's balance
sheet. Inventories consist of:
<TABLE>
<CAPTION>
DECEMBER 31, 1998 JUNE 30, 1999
----------------- -------------
<S> <C> <C>
Purchased components and fabricated
assemblies $2,313 $1,388
Finished goods 459 312
------ ------
$2,772 $1,700
====== ======
</TABLE>
7. PRINCIPAL CLIENTS
Two clients accounted for approximately 61.6% and 17.2% of the
Company's revenues during the three months ended June 30, 1998, and two clients
accounted for approximately 61.8% and 19.1% of the Company's revenues during the
six months ended June 30, 1998. One client accounted for approximately 77.3% of
the Company's revenues during the three months ended June 30, 1999. One client
accounted for approximately 76.6% of the Company's revenues during the six
months ended June 30, 1999. The loss of a principal client could have a material
adverse effect on the Company's business, operating results, and financial
condition.
8
<PAGE> 9
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
All statements contained in this "Management's Discussion and Analysis
of Financial Condition and Results of Operations" or elsewhere in this Form 10-Q
that are not statements of historical facts are forward-looking statements (as
defined in the Private Securities Litigation Reform Act of 1995) that involve
substantial risks and uncertainties. Forward-looking statements are preceded by
terms such as "may", "will", "should", "anticipates", "expects", "believes",
"plans", "future", "estimate", "continue", and similar expressions. The
following are important factors that could cause actual results to differ
materially from those expressed or implied by such forward-looking statements;
these include, but are not limited to, general economic conditions in the
Company's markets, the loss of the Company's principal client(s), the loss or
delayed implementation of a large project which could cause quarterly variation
in the Company's revenues and earnings, difficulties of managing rapid growth,
dependence on key personnel, dependence on key industries and the trend toward
outsourcing, risks associated with the Company's contracts, risks associated
with rapidly changing technology, risks of business interruption, risks
associated with international operations and expansion, dependence on labor
force, the year 2000 issue, and highly competitive markets. These factors
include risks and uncertainties beyond the Company's ability to control; and, in
many cases, the Company and its management cannot predict the risks and
uncertainties that could cause actual results to differ materially from those
indicated by use of forward-looking statements. All forward-looking statements
herein are qualified in their entirety by the information set forth in
"Management's Discussion and Analysis of Financial Condition and Results of
Operations"--"Factors That May Affect Future Results" section of StarTek, Inc.'s
annual report on Form 10-K for the year ended December 31, 1998.
The following table sets forth, for the periods indicated, certain
unaudited condensed consolidated statement of operations data expressed as a
percentage of revenues:
<TABLE>
<CAPTION>
THREE MONTHS SIX MONTHS
ENDED JUNE 30 ENDED JUNE 30
-------------- --------------
1998 1999 1998 1999
----- ----- ----- -----
<S> <C> <C> <C> <C>
Revenues 100.0% 100.0% 100.0% 100.0%
Cost of services 81.0 81.4 81.1 81.3
----- ----- ----- -----
Gross profit 19.0 18.6 18.9 18.7
Selling, general and administrative
expenses 13.3 11.4 12.3 11.1
----- ----- ----- -----
Operating profit 5.7 7.2 6.6 7.6
Net interest income and other 2.8 1.5 2.5 1.5
----- ----- ----- -----
Income before income taxes 8.5 8.7 9.1 9.1
Income tax expense 3.1 3.2 3.3 3.4
----- ----- ----- -----
Net income 5.4% 5.5% 5.8% 5.7%
===== ===== ===== =====
</TABLE>
THREE MONTHS ENDED JUNE 30, 1999 COMPARED TO THREE MONTHS ENDED JUNE 30, 1998
Revenues. Revenues increased $21.0 million, or 85.2%, from $24.7
million during the three months ended June 30, 1998 to $45.7 million during the
three months ended June 30, 1999. This increase was primarily from existing and
new clients, partially offset by decreases in the volume of services provided to
other existing clients.
Cost of Services. Cost of services increased $17.2 million, or 86.0%,
from $20.0 million during the three months ended June 30, 1998 to $37.2 million
during the three months ended June 30, 1999. As a percentage of revenues, cost
of services was 81.0% and 81.4% during the three months ended June 30, 1998 and
1999, respectively. This percentage amount remained relatively consistent from
period to period.
Gross Profit. Due to the foregoing factors, gross profit increased $3.8
million, or 81.6%, from $4.7 million during the three months ended June 30, 1998
to $8.5 million during the three months ended June 30, 1999. As a percentage of
revenues, gross profit was 19.0% and 18.6% during the three months ended June
30, 1998 and 1999, respectively.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased $1.9 million, or 58.4%, from $3.3 million
during the three months ended June 30, 1998 to $5.2 million during the three
months ended June 30, 1999, primarily as a result of increased personnel costs
and related expansion costs incurred to service increasing business. As a
percentage of revenues, selling, general and administrative expenses decreased
from 13.3% during the three months ended June 30, 1998 to 11.4% during the three
months ended June 30, 1999, reflecting a lesser relative increase in selling,
general and administrative expenses as compared to the increase in revenues.
9
<PAGE> 10
Operating Profit. As a result of the foregoing factors, operating
profit increased from $1.4 million during the three months ended June 30, 1998
to $3.3 million during the three months ended June 30, 1999. As a percentage of
revenues, operating profit increased from 5.7% during the three months ended
June 30, 1998 to 7.2% during the three months ended June 30, 1999.
Net Interest Income and Other. Net interest income and other was
approximately $0.7 million during the three months ended June 30, 1998 and 1999.
A substantial portion of net interest income and other continues to be derived
from cash equivalents and investment balances, partially offset by interest
expense incurred as a result of the Company's various debt arrangements.
Income Before Income Taxes. As a result of the foregoing factors,
income before income taxes increased $1.9 million, or 89.1%, from $2.1 million
during the three months ended June 30, 1998 to $4.0 million during the three
months ended June 30, 1999. As a percentage of revenues, income before income
taxes increased from 8.5% during the three months ended June 30, 1998 to 8.7%
during the three months ended June 30, 1999.
Income Tax Expense. Income tax expense during the three months ended
June 30, 1998 and 1999, reflects a provision for federal, state, and foreign
income taxes at an effective rate of 36.3% and 37.3%, respectively.
Net Income. Based on the factors discussed above, net income increased
$1.2 million, or 86.1%, from $1.3 million during the three months ended June 30,
1998 to $2.5 million during the three months ended June 30, 1999.
SIX MONTHS ENDED JUNE 30, 1999 COMPARED TO SIX MONTHS ENDED JUNE 30, 1998
Revenues. Revenues increased $37.6 million, or 76.6%, from $49.0
million during the six months ended June 30, 1998 to $86.6 million during the
six months ended June 30, 1999. This increase was primarily from existing and
new clients, partially offset by decreases in the volume of services provided to
other existing clients.
Cost of Services. Cost of services increased $30.6 million, or 77.0%,
from $39.8 million during the six months ended June 30, 1998 to $70.4 million
during the six months ended June 30, 1999. As a percentage of revenues, cost of
services was 81.1% and 81.3% during the six months ended June 30, 1998 and 1999,
respectively. This percentage amount remained relatively consistent from period
to period.
Gross Profit. Due to the foregoing factors, gross profit increased $6.9
million, or 75.1%, from $9.3 million during the six months ended June 30, 1998
to $16.2 million during the six months ended June 30, 1999. As a percentage of
revenues, gross profit was 18.9% and 18.7% during the six months ended June 30,
1998 and 1999, respectively.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased $3.6 million, or 60.1%, from $6.0 million
during the six months ended June 30, 1998 to $9.6 million during the six months
ended June 30, 1999, primarily as a result of increased personnel and related
expansion costs incurred to service increasing business. As a percentage of
revenues, selling, general and administrative expenses decreased from 12.3%
during the six months ended June 30, 1998 to 11.1% during the six months ended
June 30, 1999, reflecting a lesser relative increase in selling, general and
administrative expenses as compared to the increase in revenues.
Operating Profit. As a result of the foregoing factors, operating
profit increased from $3.2 million during the six months ended June 30, 1998 to
$6.6 million during the six months ended June 30, 1999. As a percentage of
revenues, operating profit increased from 6.6% during the six months ended June
30, 1998 to 7.6% during the six months ended June 30, 1999.
Net Interest Income and Other. Net interest income and other was $1.2
million during the six months ended June 30, 1998 and $1.3 million during the
six months ended June 30, 1999. A substantial portion of net interest income and
other continues to be derived from cash equivalents and investment balances,
partially offset by interest expense incurred as a result of the Company's
various debt arrangements.
Income Before Income Taxes. As a result of the foregoing factors,
income before income taxes increased $3.3 million, or 75.0%, from $4.5 million
during the six months ended June 30, 1998 to $7.8 million during the six months
ended June 30, 1999. As a percentage of revenues, income before income taxes was
9.1% during the six months ended June 30, 1998 and 1999.
Income Tax Expense. Income tax expense during the six months ended June
30, 1998 and 1999, reflects a provision for federal, state and foreign income
taxes at an effective rate of 36.3% and 37.2%, respectively.
Net Income. Based on the factors discussed above, net income increased
$2.0 million, or 72.5%, from $2.9 million during the six months ended June 30,
1998 to $4.9 million during the six months ended June 30, 1999.
10
<PAGE> 11
LIQUIDITY AND CAPITAL RESOURCES
In June 1997, the Company completed an initial public offering of its
common stock, which yielded net proceeds to the Company of approximately $41.0
million. The Company applied such proceeds to repay substantially all of its
then outstanding debt, and for working capital and other general corporate
purposes, including capital expenditures to expand its operating capacity. Since
fully applying the net proceeds it received from the June 1997 initial public
offering, the Company has primarily financed its operations, liquidity
requirements, capital expenditures, and capacity expansion through cash flows
from operations and, to a lesser degree, through various forms of debt financing
and leasing arrangements. The Company renewed its $5.0 million line of credit
with Norwest Bank Colorado, N.A. (the "Bank"), which, pursuant to the terms of
the renewed line of credit, matures on April 30, 2001. Borrowings under the line
of credit bear interest at the Bank's prime rate. Under this line of credit, the
Company is required to maintain working capital of $17.5 million and tangible
net worth of $25.0 million. The Company may not pay dividends in an amount which
would cause a failure to meet these financial covenants. As of June 30, 1999 and
as of the date of this Form 10-Q, the Company was in compliance with these
financial covenants. Collateral for the line of credit is trade accounts
receivable of certain of the Company's wholly-owned subsidiaries. As of June 30,
1999 and as of the date of this Form 10-Q, no amount was outstanding under the
$5.0 million line of credit.
On February 16, 1999, the Company entered into a lease agreement for
building space in Grand Junction, Colorado, to be used for a call center,
general office use and other services offered by the Company (the "Grand
Junction Facility"). The revised term of the lease agreement commenced on May 1,
1999 and unless earlier terminated or extended, continues until April 30, 2009.
Pursuant to the terms of the lease agreement, the Company was granted, among
other things: (i) a right of first refusal to purchase the property, of which
the leased space is a part, during the revised lease term; and (ii) a right to
terminate the lease agreement anytime after the end of the fifth year, by giving
the landlord 180 day prior written notice to terminate. Assuming the lease
agreement is not terminated after the end of the fifth year, total minimum
rental commitments, in the aggregate, excluding certain taxes and utilities as
defined, are approximately $1.1 million and are payable on a monthly basis from
May 1999 through April 2009.
On July 16, 1999, the Company entered into a lease agreement for
building space in Hartlepool, England, to be used for the continuing operations
of StarTek Europe, Ltd. (a wholly-owned subsidiary of the Company). The term of
the lease agreement commenced on May 1, 1998 and unless earlier terminated,
extended, or otherwise revised, continues until April 30, 2013. If the Company
and the landlord do not complete a new lease agreement for additional premises,
as defined, the Company was granted the right to terminate the lease agreement
on May 1, 2003 by giving the landlord at least six months written notice to
terminate. Additionally, if a new lease agreement for additional premises, as
defined, is consummated, the Company was granted the right to terminate the
lease agreement on May 1, 2008 by giving the landlord at least six months
written notice to terminate. Pursuant to the terms of the lease agreement, the
Company was granted an option, which commences on May 1, 2008 and expires on
July 31, 2008, to purchase the leased property at market value as determined at
such time. The lease agreement provides for quarterly lease payments which, in
the aggregate for the periods described, are: 106,000 British Pounds from May 1,
1998 through April 30, 1999, all of which the Company has paid; 584,000 British
Pounds from May 1, 1999 through April 30, 2003, a portion of which the Company
has paid pursuant to the quarterly lease payment schedule provided for in the
lease agreement; and 1,095,000 British Pounds from May 1, 2003 through April 30,
2008. Quarterly lease payments from May 1, 2008 through April 30, 2013 are lease
payments as agreed to between the landlord and the Company, or by formula in the
absence of such an agreement.
As of June 30, 1999, the Company had cash, cash equivalents, and
investment balances of $41.7 million, working capital of $41.8 million and net
worth of $59.5 million. The Company's cash and cash equivalents are not
restricted. The Company's investments available for sale generally consist of
corporate bonds, foreign government bonds denominated in U.S. dollars, bond
mutual funds, real estate investment trusts, equity mutual funds, and publicly
traded common stock of U.S. based companies. As of June 30, 1999, the Company's
trading securities consist primarily of publicly traded common stock of U.S.
based companies and international equity mutual funds, together with certain
hedging securities, and various forms of derivative securities. The Company's
investments available for sale and trading securities could be materially and
adversely affected by: (i) various domestic and foreign economic conditions,
such as recessions, increasing interest rates, adverse foreign currency exchange
fluctuations, foreign and domestic inflation, and other factors; (ii) the
inability of certain corporations to repay their debts, including interest
amounts, to the Company; and (iii) changes in market prices of common stock,
international equity mutual funds, hedging securities, and other derivative
securities held by the Company due to the level of trading in such securities,
and other risks generally attributable to U.S. based publicly traded companies.
See "Quantitative and Qualitative Disclosure About Market Risk" set forth herein
for further discussions regarding the Company's cash, cash equivalents,
investments available for sale, and trading securities.
Net cash provided by operating activities increased from $3.9 million
during the six months ended June 30, 1998 to $8.8 million during the six months
ended June 30, 1999. This increase was primarily a result of increases in net
income, accrued and other liabilities, and decreases in accounts receivable and
inventories. The positive effects of the foregoing were partially offset by
decreases in accounts payable, income taxes payable, and deferred income taxes.
11
<PAGE> 12
Net cash used in investing activities was $17.3 million during the six
months ended June 30, 1998 and $13.5 million during the six months ended June
30, 1999. This decrease was primarily due to decreases in: (i) net purchases of
property, plant, and equipment; and (ii) net purchases of investments.
Net cash used in financing activities was $51,000 during the six months
ended June 30, 1998 and $0.3 million during the six months ended June 30, 1999.
This increase was primarily due to an increase in principal payments on
borrowings, partially offset by: (i) a decrease in principal payments on capital
lease obligations; and (ii) proceeds received from exercises of employee stock
options during the three months ended June 30, 1999.
The effect of currency exchange rate changes on the translation of the
Company's United Kingdom and Singapore operations was not substantial during the
six months ended June 30, 1998 and 1999. The terms of the Company's agreements
with its clients and its subcontracts are typically in U.S. dollars except for
certain of its agreements related to its United Kingdom and Singapore
operations. In the past, the Company's exposure to foreign currency exchange
risks has been minimal in connection with its day to day operations in the
United Kingdom and Singapore. However, as the international portion of the
Company's business grows, more revenues and expenses will be denominated in
foreign currencies, and this will increase the Company's exposure to
fluctuations in currency exchange rates. See "Quantitative and Qualitative
Disclosure About Market Risk" set forth herein for a further discussion of the
Company's exposure to foreign currency exchange risks in connection with certain
of its investments available for sale.
The Company believes its current cash, cash equivalents, and investment
balances, anticipated cash flows from future operations, and the $5.0 million of
currently available financing under its $5.0 million line of credit, will be
sufficient to support its operations, capital expenditures, and various
repayment obligations under its debt and lease agreements for the foreseeable
future. However, liquidity and capital requirements depend on many factors,
including, but not limited to, the Company's ability to retain or successfully
and timely replace its principal client(s) and the rate at which the Company
expands its business, whether internally or through acquisitions and strategic
alliances. To the extent the funds generated from the sources described above
are insufficient to fund the Company's activities in the short or long-term, the
Company will be required to raise additional funds through public or private
financing. No assurance can be given that additional financing will be
available, or that if available, it will be available on terms favorable to the
Company.
INFLATION AND GENERAL ECONOMIC CONDITIONS
Although the Company cannot accurately anticipate the effect of
domestic and foreign inflation on its operations, the Company does not believe
that inflation has had, or is likely in the foreseeable future to have, a
material adverse effect on its results of operations or financial condition.
RELIANCE ON PRINCIPAL CLIENT RELATIONSHIPS
A substantial portion of the Company's revenues is generated from its
principal client(s) and the loss of its principal client(s) could have a
material adverse effect on the Company's business, results of operations and
financial condition. The Company's two largest clients during the three months
ended June 30, 1998 were Microsoft Corporation ("Microsoft") and Hewlett-Packard
Company ("Hewlett-Packard"). The Company provides various outsourced services to
various divisions of Microsoft, which began its outsourcing relationship with
the Company in April 1996, and which accounted for approximately 61.6% of the
Company's revenues during the three months ended June 30, 1998. Hewlett-Packard
accounted for approximately 17.2% of the Company's revenues during the three
months ended June 30, 1998. The Company's largest client during the three months
ended June 30, 1999 was Microsoft. Microsoft accounted for approximately 77.3%
of the Company's revenues during the three months ended June 30, 1999. There can
be no assurance the Company will be able to retain its principal client(s) or,
if it were to lose its principal client(s), it would be able to timely replace
its principal client(s) with clients which generate a comparable amount of
revenues.
12
<PAGE> 13
VARIABILITY OF QUARTERLY OPERATING RESULTS
The Company's business is highly seasonal and is, at times, conducted
in support of product launches for new and existing clients. Historically, the
Company's revenues have been substantially lower in the first and second
quarters due to the timing of its clients' marketing programs and product
launches, which are typically geared toward the holiday buying season. However,
the Company's revenues and operating results for the first and second quarter of
1999 are not necessarily indicative of the results that may be expected for the
third and fourth quarter of 1999, or for the year ending December 31, 1999.
Additionally, the Company has experienced, and expects to continue to
experience, quarterly variations in operating results as a result of a variety
of factors, many of which are outside the Company's control, including: (i) the
timing of existing and future client product launches; (ii) the expiration or
termination of existing client projects; (iii) the timing and amount of costs
incurred to expand capacity in order to provide for further revenue growth from
current and future clients; (iv) the seasonal nature of certain clients'
businesses; (v) the cyclical nature of certain high technology clients'
businesses; and (vi) changes in the Company's principal client base.
Revenues for the three months ended March 31, 1999 and June 30, 1999
were approximately $40.9 million and $45.7 million, respectively. Typically, the
Company's revenues have been lower in the first and second quarters due to the
seasonal nature of its principal clients' and other clients' businesses.
However, the Company's revenues for the first and second quarter of 1999 are not
necessarily indicative of the revenues that may be expected for the third and
fourth quarter of 1999, or for the year ending December 31, 1999.
Gross profit as a percent of revenues remained relatively consistent
for each of the three month periods ended March 31, 1999 and June 30, 1999.
Selling, general and administrative expenses increased from the three
months ended March 31, 1999 to the three months ended June 30, 1999 as a result
of increases in certain operating expenses associated with increases in
revenues, and increases in personnel and related expansion costs incurred to
service increasing business. As a percentage of revenues, selling, general and
administrative expenses remained relatively consistent for the three months
ended March 31, 1999 and June 30, 1999.
YEAR 2000 COMPLIANCE
The year 2000 issue is the result of computer programs being written
using two digits rather than four digits to define the applicable year. Some of
the Company's older computer programs and technologies fall into this category.
As a result, those programs have time-sensitive applications that recognize a
date using "00" as the year 1900 rather than the year 2000. This could cause
system failures or miscalculations causing disruptions of operations, including,
among other things, a temporary inability to process transactions, send
invoices, or engage in other normal business activities.
The Company formally created a year 2000 project team (the "Y2K Team")
during the first quarter of 1998. The Y2K Team reports directly to the Company's
executive committee and periodically provides the executive committee status
updates of its year 2000 compliance efforts. To date, the Y2K Team has, among
other things, completed its initial assessment of the Company's year 2000
compliance issues, identified non year 2000 compliant computer equipment and
software, communicated with applicable third party vendors of the Company in
order to gather information on year 2000 matters beyond the Company's internal
information technologies, scheduled and partially completed year 2000 testing of
the Company's applicable information systems, and has begun to develop the
Company's year 2000 contingency plan. The Company plans for the Y2K Team to test
its year 2000 contingency plan during the third quarter of 1999. The total cost
of the Company's year 2000 compliance efforts is estimated to be approximately
$100,000.
The Company anticipates that the Y2K Team will complete its year 2000
compliance efforts during the third quarter of 1999, which is prior to any
anticipated material adverse effect the year 2000 issue may have on the
Company's business, financial condition and results of operations. Additionally,
the Company uses certain of its clients' software applications in performing its
outsourced services. Such client-owned software used by the Company, if not year
2000 compliant, could cause significant interruptions and delays in the
Company's services, revenues, and cash receipts. Management is unaware of any
specific year 2000 issues related to client-owned software used in the Company's
day to day operations. Management believes, based on its current year 2000
compliance planning, the year 2000 issue will not pose material adverse problems
to the Company's business. However, if the Company's, its third party vendors',
subcontractors', and/or clients' year 2000 compliance efforts are not
successful, or not completed in a timely manner, the year 2000 issue could have
a material adverse effect on the operations of the Company.
13
<PAGE> 14
The anticipated cost and timing to complete the year 2000 compliance
efforts mentioned above are based on estimates which have been derived using
numerous assumptions of future events, including the continued availability of
certain resources and other factors. However, there can be no assurance that
these estimates will be achieved and actual results could differ materially from
those anticipated. Specific factors that might cause such material differences
include, but are not limited to, the availability and cost of personnel trained
in this area, the ability to completely identify and correct all relevant
information systems, the ability to coordinate successfully with its third party
vendors, subcontractors, and clients in order to attempt to insure year 2000
issues beyond the Company's internal information systems are also successfully
and timely addressed, and other uncertainties.
The Company's principal client(s)' and other clients' future revenues
may be adversely and materially impacted due to slowing demand for their
products and services caused by uncertainties surrounding the year 2000 issue.
Similarly, the effect the year 2000 issue may have on the Company's revenues and
gross profits is difficult to estimate but is a risk to be considered in
evaluating the future growth of the Company.
In a recent Securities and Exchange Commission release regarding year
2000 disclosure, the Securities and Exchange Commission stated that public
companies must disclose the most reasonable likely worst case year 2000
scenario. Although it is not possible to assess the likelihood of any of the
following events, each must be included in a consideration of worst case
scenarios: widespread failure of electrical and similar supplies serving the
Company; widespread disruption of services and functions provided by the
Company's telephone, software, and hardware systems; widespread disruption of
the services provided by common communications carriers and power grids serving
the Company's domestic and international operations; similar disruption to the
means and modes of transportation for the Company and its employees, suppliers,
and customers; significant disruption to the Company's ability to gain access
to, and remain working in, office buildings and other facilities; the failure of
the Company's customers' and its suppliers' critical computer hardware and
software systems; and the failure of outside entities' systems, including
systems related to banking and finance. These and other outages would cause
major challenges and would significantly impact the Company's ability to
generate revenues during the outage.
Although the Company expects its systems to be year 2000 compliant on
or before December 31, 1999, it cannot predict the outcome or success of its
efforts to become year 2000 compliant, or that third party systems are or will
be year 2000 compliant, or that the costs required to address the year 2000
issue, or that the impact of a failure to achieve substantial year 2000
compliance, will not have a material adverse effect on the Company's business,
financial condition, or results of operations. The Company is in the process of
developing contingency plans for certain of its systems and processes in order
to attempt to insure continued operations of such systems and processes. This
contingency planning consists of preparing to implement alternative work
processes in the event of possible system or process failures for certain of the
Company's operations.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
The following discusses the Company's exposure to market risk related
to changes in interest rates and other general market risks, equity market
prices and other general market risks, and foreign currency exchange rates.
Historically, primarily all of the Company's investment decisions were directed
by its Chairman of the Board. On May 19, 1999, the Company's Board of Directors
approved the Company's current investment portfolio policy which provides for,
among other things, investment objectives, and investment portfolio allocation
guidelines. This discussion contains forward-looking statements that are subject
to risks and uncertainties. Actual results could vary materially as a result of
a number of factors, including but not limited to, changes in interest rates and
other general market risks, equity market prices and other general market risks,
foreign currency exchange rates, and those set forth in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations"--"Factors That May Affect Future Results" section of the Company's
annual report on Form 10-K for the year ended December 31, 1998.
Interest Rate Sensitivity and Other General Market Risks
Cash and Cash Equivalents. As of June 30, 1999, the Company had cash
and cash equivalents of approximately $14.3 million, none of which is
restricted, and which consisted of: (i) approximately $13.2 million invested in
various money market funds, overnight investments, and various commercial paper
securities at a combined weighted average interest rate of approximately 5.0%;
and (ii) approximately $1.1 million in various non-interest bearing accounts.
Management considers cash equivalents to be short-term, highly liquid
investments that are readily convertible to known amounts of cash, and so near
their maturity that they present insignificant risk of changes in value because
of changes in interest rates. The Company does not expect any material loss with
respect to its cash and cash equivalents as a result of interest rate changes,
and the estimated fair value of its cash and cash equivalents approximates
original cost.
14
<PAGE> 15
Investments Available for Sale. As of June 30, 1999, the Company had
investments available for sale of $24.6 million. These investments available for
sale generally consist of corporate bonds, foreign government bonds denominated
in U.S. dollars, bond mutual funds, real estate investment trusts, equity mutual
funds, and publicly traded common stock of U.S. based companies. Corporate
bonds, foreign government bonds denominated in U.S. dollars, and bond mutual
funds held in the Company's investment portfolio are subject to interest rate
risk and will fall in value if market interest rates increase.
The fair market value of, and the estimated cash flows from, the
Company's investments in corporate bonds are substantially dependent upon the
credit worthiness of certain corporations that are expected to repay their
debts, including interest, as they become due, to the Company. If such
corporations' financial condition and liquidity adversely changes, the Company's
investments in their debts can be expected to be materially and adversely
affected.
The Company's investments in foreign government bonds denominated in
U.S. dollars entail special risks of global investing, these include, but are
not limited to: (i) currency exchange fluctuations which could adversely affect
the ability of foreign governments to repay their debts in U.S. dollars; (ii)
foreign government regulations; and (iii) the potential for political and
economic instability. The fair market value of such investments in foreign
government bonds (denominated in U.S. dollars) can be expected to be more
volatile than that of U.S. government bonds. These risks are intensified for the
Company's investments in debt of foreign governments located in countries
generally considered to be emerging markets.
The table below provides information about maturity dates and
corresponding weighted average interest rates with regard to certain of the
Company's investments available for sale as of June 30, 1999.
<TABLE>
<CAPTION>
WEIGHTED EXPECTED MATURITY DATE
AVERAGE --COST--
INTEREST RATES (DOLLARS IN THOUSANDS)
------------------------------------------------------------------------------------ ----------
1 year 2 years 3 years 4 years 5 years Thereafter Total FAIR VALUE
------- ------- ------- ------- ------- ---------- ------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Corporate bonds 7.8% $ 4,590 -- -- -- -- -- $ 4,590 $ 4,586
Foreign government bonds 6.3% 1,980 -- -- -- -- -- 1,980 1,991
Corporate bonds 6.0% -- $ 4,289 -- -- -- -- 4,289 4,317
Corporate bonds 7.7% -- -- $ 3,819 -- -- -- 3,819 3,835
Corporate bonds 5.3% -- -- -- $ 781 -- -- 781 780
Corporate bonds 4.3% -- -- -- -- $ 818 -- 818 758
Corporate bonds 6.4% -- -- -- -- -- $ 2,249 2,249 2,146
Foreign government bonds 9.1% -- -- -- -- -- 2,436 2,436 2,341
------- ------- ------- ------- ------- ------- ------- -------
Total 7.0% $ 6,570 $ 4,289 $ 3,819 $ 781 $ 818 $ 4,685 $20,962 $20,754
======= ======= ======= ======= ======= ======= ======= =======
</TABLE>
Management believes the Company currently has the ability to hold these
investments until maturity, and therefore, if held to maturity, the Company
would not expect the future proceeds from these investments to be affected, to
any significant degree, by the effect of a sudden change in market interest
rates. Declines in interest rates over time will, however, reduce the Company's
interest income derived from future investments.
As of June 30, 1999 and as part of its investments available for sale
portfolio, the Company also was invested in: (i) various bond mutual funds
which, in the aggregate, had an original cost and fair market value of
approximately $1.5 million and $1.6 million, respectively; and (ii) real estate
investment trusts, equity mutual funds, and publicly traded common stock of U.S.
based companies which, in the aggregate, had an original cost and fair market
value of approximately $2.5 million and $2.2 million, respectively.
Such bond mutual funds, as of June 30, 1999: (i) had a weighted average
yield of approximately 7.9%, and a weighted average maturity of approximately 3
years; (ii) are primarily invested in investment grade bonds of U.S. and foreign
issuers denominated in U.S. and foreign currencies, and interests in floating or
variable rate senior collateralized loans to corporations, partnerships, and
other entities in a variety of industries and geographic regions; (iii) include
certain foreign currency risk hedging instruments which are intended to reduce
fair market value fluctuations; (iv) are subject to interest rate risk and will
fall in value if market interest rates increase; and (v) are subject to the
quality of the underlying securities within the mutual funds. The Company's
investments in such bond mutual funds entail special risks of global investing,
including, but not limited to: (i) currency exchange fluctuations; (ii) foreign
government regulations; and (iii) the potential for political and economic
instability. The fair market value of the Company's investments in such bond
mutual funds can be expected to be more volatile than that of a U.S.-only fund.
These risks are intensified for certain investments in debt of foreign
governments (included in bond mutual funds) which are located in countries
generally considered to be emerging markets. Additionally, certain of the bond
mutual fund investments are also subject to the effect of leverage, which in a
declining market can be expected to result in a greater decrease in fair market
value than if such investments were not leveraged.
15
<PAGE> 16
Outstanding Debt of the Company. As of June 30, 1999, the Company had
outstanding debt of approximately $3.7 million, approximately $3.1 million of
which bears interest at an annual fixed rate of 7.0%. Since substantially all of
the interest on the Company's debt is fixed, management believes that a
hypothetical 10.0% decrease in interest rates would not have a material adverse
effect on the Company. Increases in interest rates could, however, increase
interest expense associated with future borrowings by the Company, if any. For
example, the Company may from time to time effect borrowings under its $5.0
million line of credit for general corporate purposes, including working capital
requirements, capital expenditures and other purposes related to expansion of
the Company's capacity. Borrowings under the $5.0 million line of credit bear
interest at the lender's prime rate. As of June 30, 1999, the Company had no
outstanding line of credit obligations. The Company has not hedged against
interest rate changes.
Equity Price Risk and Other General Market Risks
Investments Available for Sale. As of June 30, 1999, the Company held
in its investments available for sale portfolio, certain equity securities with
original costs and fair market values, in the aggregate, of $2.5 million and
$2.2 million, respectively. The Company's investments in equity securities
consist of real investment trusts, equity mutual funds, and publicly traded
common stock of U.S. based companies. A substantial decline in the value of
equity securities and equity prices in general could have a material adverse
effect on the Company's equity investments. Also, the price of common stock held
by the Company could be materially and adversely affected by poor management,
shrinking product demand, and other risks that may affect single companies, as
well as groups of companies. The Company has partially hedged against some
equity price changes.
Trading Securities. As of June 30, 1999, the Company was also invested
in trading securities which, in the aggregate, had an original cost and fair
market value of approximately $2.7 million and $2.8 million, respectively.
Trading securities, which consist primarily of publicly traded common stock of
U.S. based companies and international equity mutual funds, together with
certain hedging securities, and various forms of derivative securities are held
to meet short-term investment objectives. The Company enters into hedging and
derivative securities in an effort to maximize its return on investments in
trading securities while managing risk. As part of trading securities and as of
June 30, 1999, the Company was invested in derivative securities which consist
of: (i) written put options for a total of 41,000 shares of common stock of
certain U.S. based publicly traded companies with a weighted average exercise
price of approximately $20.18 per share, all of which had a contractual
expiration date of July 16, 1999; and (ii) written call options for a total of
41,000 shares of common stock of certain U.S. based publicly traded companies
with a weighted average exercise price of approximately $20.18 per share, all of
which had a contractual expiration date of July 16, 1999. Management believes
the risk of loss to the Company in the event of nonperformance by any party
under these agreements is not substantial. Because of the potential limited
liquidity of some of these instruments, the recorded values of these
transactions may be different than the values that might be realized if the
Company were to sell or close out the transactions. Management believes such
differences are not substantial to the Company's results of operations,
financial condition, or liquidity. A substantial decline and/or change in the
value of equity securities, equity prices in general, international equity
mutual funds, hedging securities, and derivative securities could have a
material adverse effect on the Company's trading securities. Also, the price of
common stock, hedging securities, and other derivative securities held by the
Company as trading securities could be materially and adversely affected by poor
management, shrinking product demand, and other risks that may affect single
companies, as well as groups of companies.
Foreign Currency Exchange Risk
Approximately 8.3% of the Company's revenues during the six months
ended June 30, 1999 were derived from arrangements whereby the Company received
payments from its clients in currencies other than U.S. dollars. The terms of
the Company's agreements with its clients and its subcontracts are typically in
U.S. dollars except for certain of its agreements related to its United Kingdom
and Singapore operations. If an arrangement provides for the Company to receive
payments in a foreign currency, the ultimate revenues realized from such an
arrangement may be less if the value of such foreign currency declines.
Similarly, if an arrangement provides for the Company to make payments in a
foreign currency, the ultimate cost of services and operating expenses for such
an arrangement may be more if the value of such foreign currency increases. For
example, a 10% change in the relative value of such foreign currency could cause
a related 10% change in the Company's previously expected revenues, cost of
services and operating expenses. In the past, the Company's exposure to currency
exchange risks has been minimal in connection with its day to day operations in
the United Kingdom and Singapore. However, as the international portion of the
Company's business grows, more revenues and expenses will be denominated in
foreign currencies, and this will increase the Company's exposure to
fluctuations in currency exchange rates. In the past, the Company has not hedged
against foreign currency exchange rate changes related to its day to day
operations in the United Kingdom and Singapore.
16
<PAGE> 17
PART II. OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
(c) Sales of Unregistered Securities
The Company did not issue or sell any unregistered securities
during the three months ended June 30, 1999, except as
follows:
(i) On May 19, 1999 the Company granted options to
purchase 55,600 shares of common stock, in the
aggregate, to 29 employees pursuant to the Company's
Stock Option Plan. These options vest at a rate of
20% per year beginning May 19, 2000, expire on May
19, 2009, and are exercisable at $18.50 per share,
which was the market value of the Company's common
stock on the date the options were granted.
(ii) On May 19, 1999, the Company also granted an option
to purchase 3,000 shares of common stock to each of
two non-employee directors pursuant to the Company's
Director Stock Option Plan. These options are
immediately and fully vested upon the date of grant,
expire on May 19, 2009, and are exercisable at $18.50
per share, which was the market value of the
Company's common stock on the date the options were
granted.
The stock option grants in Item 2. (c) above were made in
reliance upon exemptions from registration provided by
Section 4 (2) and 3 (b) of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(a) On May 19, 1999, the Company held its 1999 annual meeting of
shareholders (the "Annual Meeting").
(b) One matter voted on at the Annual Meeting was the election of
all four directors of the Company. The four nominees who were
all existing directors of the Company, were re-elected at the
Annual Meeting as directors of the Company, receiving the
number and percentage of votes for election as set forth
below:
<TABLE>
<CAPTION>
NOMINEES FOR ELECTION WITHHELD
-------- ------------ --------
<S> <C> <C>
A. Emmet Stephenson, Jr. 11,785,164 (99.93%) 8,510 (00.07%)
--------------- ------------
Michael W. Morgan 11,785,164 (99.93%) 8,510 (00.07%)
--------------- ------------
Thomas O. Ryder 11,785,164 (99.93%) 8,510 (00.07%)
--------------- ------------
Ed Zschau 11,785,164 (99.93%) 8,510 (00.07%)
--------------- ------------
</TABLE>
(c.1) Another matter voted upon at the Annual Meeting was a proposal
to amend the Company's Certificate of Incorporation to reduce
the number of shares of common stock that the Company has the
authority to issue, from 95,000,000 shares to 18,000,000
shares, and eliminate the authorization of preferred stock.
This proposal, which was approved, received the number and
percentage of votes as set forth below:
<TABLE>
<CAPTION>
VOTES
<S> <C>
For 11,784,924 (99.93%)
------------
Against 5,870 (00.05%)
------------
Abstain 2,880 (00.02%)
------------
</TABLE>
(c.2) The only other matter voted upon at the Annual Meeting was a
proposal to ratify and approve the selection of Ernst & Young
LLP as the Company's independent auditors for 1999. This
proposal, which was approved, received the number and
percentage of votes as set forth below:
<TABLE>
<CAPTION>
VOTES
<S> <C>
For 11,787,086 (99.94%)
------------
Against 3,738 (00.03%)
------------
Abstain 2,850 (00.03%)
------------
</TABLE>
(d) Not applicable
17
<PAGE> 18
PART II. OTHER INFORMATION (CONTINUED)
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.18 Lease by and between StarTek Europe, Ltd., as Lessee,
and Spencer Holdings Plc., as Lessor, dated May 27,
1999.
27.1 Financial Data Schedule.
(b) Reports on Form 8-K
No reports on Form 8-K were filed by the Company during the
three months ended June 30, 1999.
18
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
STARTEK, INC.
----------------------------------------
(Registrant)
Date: August 16, 1999 /s/ MICHAEL W. MORGAN
----------------------- ----------------------------------------
Michael W. Morgan
President and Chief Executive Officer
Date: August 16, 1999 /s/ DENNIS M. SWENSON
----------------------- ----------------------------------------
Dennis M. Swenson
Executive Vice President and Chief
Financial Officer (Principal Financial
and Accounting Officer)
19
<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
10.18 Lease by and between StarTek Europe, Ltd., as Lessee,
and Spencer Holdings Plc., as Lessor, dated May 27,
1999.
27.1 Financial Data Schedule.
</TABLE>
<PAGE> 1
EXHIBIT 10.18
DATED 1999
================================================================================
(1) SPENCER HOLDINGS PLC
- and -
(2) STARTEK EUROPE LIMITED
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COUNTERPART/
LEASE
relating to
Units A and D Sovereign Park, Brenda Road,
Hartlepool
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Commencing 1 May 1998
Term of years 15
Expires 30 April 2013
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CONTENTS
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1. PARTICULARS................................................................................................1
2. DEFINITIONS AND INTERPRETATION.............................................................................2
2.1 Definitions...........................................................................................2
2.2 Interpretation........................................................................................5
3. DEMISE RENT AND RENT REVIEW................................................................................7
3.1 Demise and Rent.......................................................................................7
3.2 Rent Review...........................................................................................7
4. TENANT'S COVENANTS........................................................................................12
4.1 Rent.................................................................................................12
4.2 Outgoings............................................................................................12
4.3 Interest on Arrears..................................................................................13
4.4 Service Charge.......................................................................................13
4.5 Repairs..............................................................................................14
4.6 Decoration...........................................................................................15
4.7 Alterations..........................................................................................16
4.8 Entry................................................................................................17
4.9 Use..................................................................................................18
4.10 Alienation..........................................................................................19
4.11 Registration of Documents...........................................................................24
4.12 Compliance with Statutes............................................................................24
4.13 Planning/Environmental Matters......................................................................25
4.14 Easements...........................................................................................27
4.15 Notifications.......................................................................................27
4.16 Defects.............................................................................................27
4.17 Fire Fighting.......................................................................................28
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<TABLE>
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4.18 Advertisements/Aerials..............................................................................28
4.19 Notice Boards.......................................................................................28
4.20 Expenses............................................................................................29
4.21 New Guarantor.......................................................................................30
4.22 Indemnity...........................................................................................30
4.23 Yield up............................................................................................31
4.24 VAT.................................................................................................31
4.25 Observe Covenants...................................................................................32
5. LANDLORD'S COVENANT.......................................................................................32
6. INSURANCE.................................................................................................32
6.1 Landlord's Obligations...............................................................................32
6.2 Tenant's Obligations.................................................................................33
6.3 Abatement of Rent....................................................................................35
6.4 Commissions..........................................................................................35
7. PROVISOS..................................................................................................36
7.1 Forfeiture...........................................................................................36
7.2 Exclusion of Use Warranty............................................................................37
7.3 VAT..................................................................................................37
7.4 Service of Notices...................................................................................37
7.5 Development of Neighbouring Premises.................................................................37
7.6 Compensation.........................................................................................38
7.7 Implied Easements....................................................................................38
7.8 Disputes with Adjoining Occupiers....................................................................38
7.9 Tenant's Effects.....................................................................................38
7.10 Landlord's Liability................................................................................39
7.11 No Waiver...........................................................................................39
7.12 Jurisdiction........................................................................................40
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<TABLE>
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7.13 Status of Lease.....................................................................................40
7.14 Stamp Duty..........................................................................................40
8. TENANT'S OPTIONS TO DETERMINE.............................................................................40
9. SURRENDER.................................................................................................41
10. TENANT'S OPTION TO ACQUIRE REVERSIONARY LEASE............................................................42
SCHEDULE 1..................................................................................................45
Part 1...................................................................................................45
(Premises)...............................................................................................45
Part 2...................................................................................................45
(Easements and rights granted)...........................................................................45
Part 3...................................................................................................46
(Exceptions and reservations)............................................................................46
Part 4...................................................................................................47
(Matters to which the Premises are subject)..............................................................47
SCHEDULE 2...................................................................................................47
Guarantee provisions.....................................................................................47
SCHEDULE 3...................................................................................................49
Requirements of authorised guarantee agreement...........................................................49
SCHEDULE 4...................................................................................................51
Part 1...................................................................................................51
("Service Charge").......................................................................................51
Part 2...................................................................................................54
("Services").............................................................................................54
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LEASE dated and delivered 1999
BETWEEN: the Landlord and the Tenant named in the Particulars hereunder
WITNESSES as follows:-
1. PARTICULARS
LANDLORD: SPENCER HOLDINGS PLC (company
number 1204931 England) whose
registered office is at Suite 328
The Corn Exchange Building,
Fenwick Street, Liverpool L2 7RB
TENANT: STARTEK EUROPE LIMITED (company
number FC017227 England) whose
registered office is at 100
Garfield Street Fourth Floor
Denver Colorado 80206 whose
address for service in England
and Wales is Unit A Sovereign
Park Brenda Road Hartlepool
PREMISES: the premises shortly known as
Units A and D Sovereign Park
Brenda Road Hartlepool
CONTRACTUAL TERM: 15 years from and including 1 May
1998
RENT COMMENCEMENT DATE: 1 May 1998
INITIAL RENT: One hundred and six thousand
pounds ((pound)106,000) per annum
(exclusive of VAT)
REVIEW DATE: 1 May 2008
PERMITTED USE: any use within Classes B1, B2 or
B8 of the Schedule to the Town
and Country Planning (Use
Classes) Order 1987
(notwithstanding any amendment or
revocation of such Order whenever
made)
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2. DEFINITIONS AND INTERPRETATION
2.1 DEFINITIONS
In this Lease wherever the context so admits the following expressions
shall have the following meanings respectively:-
2.1.1 "1995 ACT" means the Landlord and Tenant (Covenants) Act 1995
2.1.2 "ADDITIONAL PREMISES" means the premises shown for the
purpose of identification only edged green on the Plan or any
part or parts thereof
2.1.3 "ACCESS ROAD" means the roads shown coloured yellow on the
Plan
2.1.4 "APPROVAL DATE" means in relation to an application to the
Landlord for consent hereunder the date on which such consent
is formally granted in writing
2.1.5 "CONDUITS" means all wires pipes sewers drains cables ducts
shafts gullies flues gutters watercourses soakaways and other
like conducting media of whatsoever nature (including all
meters and other apparatus used in connection with them)
which now are or may hereafter during the Perpetuity Period
be laid
2.1.6 "DECORATE" means to paint repaper or otherwise treat as the
case may be all surfaces usually or requiring to be so
treated having first prepared such surfaces by stripping off
and priming as may be necessary and to wash down all washable
surfaces and to restore point and make good all brickwork
where necessary and to grain or varnish any parts usually so
protected all decoration being carried out with good quality
materials and in a good and workmanlike manner and where
painting is involved three coats being applied to the outside
and two coats to the inside
2.1.7 "ENVIRONMENTAL PROTECTION ACT" means the Environmental
Protection Act 1990 and any Act or Acts amending replacing or
modifying such Act for the time being in force or of a
similar nature and all orders and regulations thereunder for
the time being in force
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2.1.8 "ESTATE" means the Landlord's estate shown for the purpose of
identification only edged blue on the Plan (but excluding the
area shown hatched blue on the Plan) or such greater or
lesser area as may be determined by the Landlord from time to
time
2.1.9 "GROUP COMPANY" means a company which is a member of the same
group of companies as the Tenant (as defined in Section 42 of
the Landlord and Tenant Act 1954 (as amended))
2.1.10 "GUARANTOR" means the party (if any) stated as such in the
Particulars and includes the personal representatives of the
Guarantor and any other person who may from time to time
guarantee all or any of the Tenant's obligations under this
Lease
2.1.11 "INSURED RISKS" means loss or damage by or in consequence of
fire storm tempest lightning explosion flood earthquake
aircraft and other aerial devices and things dropped
therefrom (in time of peace) impact by road vehicles riot
civil commotion malicious damage bursting and overflowing of
water tanks apparatus and pipes and such other risks as the
Landlord shall insure against from time to time (subject in
all cases to such excesses exclusions and limitations as may
be imposed by the insurers or underwriters with whom such
insurance is placed) except always such risks as cannot
reasonably be insured by the Landlord on satisfactory terms
or as the Landlord's insurers or underwriters have refused to
insure
2.1.12 "LANDLORD" means the person for the time being entitled to
the reversion immediately expectant on the determination of
the Term (being at the date hereof the party stated as such
in the Particulars)
2.1.13 "LANDLORD'S SURVEYOR" means any person appointed by or acting
for the Landlord including an employee of the Landlord to
perform the function of a surveyor for any purposes of this
Lease
2.1.14 "LEASE" means this Lease (including any Schedule hereto) and
any document which is supplemental hereto or which is
collateral herewith
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or which is entered into pursuant to or in accordance with
the terms hereof
2.1.15 "LETTING UNIT" means one of the four units comprising part of
the Premises and marked "I", or "II" or "III" or "IV" on the
Plan
2.1.16 "LOSS OF RENT" means loss of three years rent of the Premises
(including proper allowances for increases in rent pursuant
to the provisions for rent review herein contained)
2.1.17 "PARTICULARS" means the particulars in Clause 1
2.1.18 "PERMITTED USE" means the use stated as such in the
Particulars
2.1.19 "PERPETUITY PERIOD" means the period of eighty years
commencing on the date of this Lease being the perpetuity
period for the purposes of Section 1 of the Perpetuities and
Accumulations Act 1964 applicable to this Lease
2.1.20 "PLAN" means the plan or plans annexed hereto
2.1.21 "PLANNING ACTS" means the Town and Country Planning Act 1990
the Planning (Listed Buildings and Conservation Areas) Act
1990 the Planning (Hazardous Substances) Act 1990 the
Planning (Consequential Provisions) Act 1990 and the Planning
and Compensation Act 1991 and any Act or Acts amending
replacing or modifying any of such Acts for the time being in
force or of a similar nature and all orders and regulations
thereunder for the time being in force
2.1.22 "PREMISES" means the land and premises so stated in the
Particulars and as more particularly described in Part 1 of
Schedule 1 and each and every part thereof together with the
appurtenances thereto belonging and together also with any
buildings and erections and each and every part thereof now
or hereafter erected or in the course of erection thereon or
on any part thereof together with all additions alterations
and improvements thereto which may be carried out during the
Term and
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shall also include all landlord's fixtures and fittings from
time to time in and about the same
2.1.23 "RENT COMMENCEMENT DATE" means the date stated as such in the
Particulars
2.1.24 "RENT DAYS" means 25 March 24 June 29 September and 25
December in each year and "RENT DAY" shall mean any of such
days as the context requires
2.1.25 "SERVICE CHARGE" shall have the meaning ascribed thereto in
Schedule 4
2.1.26 "STIPULATED RATE" means in relation to interest the rate per
annum of four per centum above the base rate from time to
time of Barclays Bank Plc (or where such base rate is not
quoted over such other rate as would in the reasonable
opinion of the Landlord be the nearest equivalent thereto if
such base rate were quoted)
2.1.27 "TENANT" means the party stated as such in the Particulars
and shall include such party's successors in title to this
Lease
2.1.28 "TERM" means the Contractual Term together with any
continuation or extension thereof (whether statutory or by
the Tenant holding over or for any other reason)
2.1.29 "VAT" means value added tax or any tax of a similar nature
that may be substituted for it or levied in addition to it
2.2 INTERPRETATION
In this Lease unless there be something in the subject or context
inconsistent therewith:-
2.2.1 Where the expressions "the Tenant" or "the Guarantor" (if
any) include two or more persons they shall include the
plural number and obligations expressed or implied to be made
by or with any of such persons shall be deemed to be made by
or with such persons jointly and severally
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2.2.2 Any covenant by the Tenant not to do or omit to do an act or
thing shall be deemed to include an obligation not to permit
or suffer such act or thing to be done or omitted to be done
as the case may be
2.2.3 Any reference to parting with possession shall be deemed to
include sharing possession and any occupation whatsoever by a
licensee
2.2.4 Any reference in this Lease to the Landlord's consent shall
include where necessary the consent of both the Landlord and
all superior landlords (if any)
2.2.5 Any references to a right exercisable by the Landlord shall
include where necessary the exercise of such right by all
superior landlords (if any) and all persons authorised by the
Landlord or any superior landlord
2.2.6 Any reference to a statute shall include any statutory
extension or modification or re-enactment of such statute and
any order instrument plan regulation permission or direction
made or issued thereunder or deriving validity therefrom
2.2.7 Words importing the singular meaning shall include the plural
meaning and vice versa and words importing the masculine
feminine and neuter genders shall include the other or others
of such genders
2.2.8 The clause and paragraph headings and the index are for
convenience only and shall not affect the construction of
this Lease
2.2.9 For the avoidance of any doubt expressions used in the
Particulars shall have the same meanings when used elsewhere
in this Lease
2.2.10 Any reference to a clause subclause paragraph or schedule
shall be a reference to the clause subclause or paragraph of
or schedule to this Lease so numbered
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3. DEMISE RENT AND RENT REVIEW
3.1 DEMISE AND RENT
In consideration of the rents hereinafter reserved and of the covenants
and conditions hereinafter contained the Landlord hereby demises unto
the Tenant all that the Premises together with so far as the Landlord
can grant the same the rights (if any) contained or referred to in Part
2 of Schedule 1 except and reserving as provided in Part 3 thereof to
hold the same subject to and (insofar as the Landlord has the power to
grant the same) with the benefit of the matters (if any) referred to in
Part 4 of that Schedule unto the Tenant for the Contractual Term
yielding and paying therefor unto the Landlord yearly during the Term
and so in proportion for any less period than a year without any
deduction FIRST the clear yearly rent (exclusive of VAT) ascertained in
accordance with Clause 3.2 such rent (if the Landlord so requires) to
be paid by banker's standing order direct debit or other accepted means
for the transmission of money which the Landlord may from time to time
reasonably nominate by equal quarterly payments in advance on the four
Rent Days in every year the first payment (for the period beginning on
the Rent Commencement Date and ending on the day preceding the next
succeeding Rent Day and calculated by multiplying the said yearly rent
by the fraction of which the numerator is the number of days between
those dates (both included) and the denominator is 365) to be made on
the date hereof SECONDLY by way of additional rent all such monies as
shall become payable in accordance with Clause 4.3 THIRDLY by way of
additional rent all such monies as shall become payable in accordance
with Clause 4.4 FOURTHLY by way of additional rent on demand all such
monies as shall become payable in accordance with Clause 6.2.1 and
FIFTHLY by way of additional rent all other amounts (including VAT)
payable to the Landlord under this Lease
3.2 RENT REVIEW
The yearly rent referred to in Clause 3.1 shall be ascertained as
follows:-
3.2.1 Until 30 April 1999 such yearly rent shall be the Initial
Rent
3.2.2 From and including 1 May 1999 up to and including 30 April
2003 such yearly rent shall be the sum of one hundred and
forty six thousand pounds ((pound)146,000) (exclusive of VAT)
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3.2.3 From and including 1 May 2003 up to and including 30 April
2008 the yearly rent shall be the sum of two hundred and
nineteen thousand pounds ((pound)219,000) (exclusive of VAT)
3.2.4 From the Review Date such yearly rent shall be a rent equal
to the rent previously hereby reserved immediately prior to
the Review Date or such revised rent ("REVISED RENT") as may
be ascertained as hereinafter provided whichever be the
greater 3.2.5 The Revised Rent payable from the Review Date
may be agreed at any time between the Landlord and the Tenant
or (in the absence of agreement) determined not earlier than
the Review Date at the option of the Landlord either by an
arbitrator or by an independent valuer (acting as an expert
and not as an arbitrator) such arbitrator or valuer to be a
partner in a principal firm of Chartered Surveyors who is
experienced in the letting and valuation of premises
comparable with the Premises and to be nominated in the
absence of agreement by or on behalf of the President for the
time being of the Royal Institution of Chartered Surveyors on
the application of the Landlord or the Tenant made not
earlier than six months before the Review Date and so that in
the case of such arbitration or valuation the Revised Rent to
be awarded or determined by the arbitrator or valuer shall be
such as he shall decide should be the Open Market Rent at the
Review Date
3.2.6 For the purposes of this Clause 3.2 "OPEN MARKET RENT" means
the best yearly rent (exclusive of any VAT chargeable
thereon) at which the Premises might reasonably be expected
to be let on the Review Date in the open market by a willing
landlord to a willing tenant (which shall include the Tenant)
with vacant possession or with the benefit of any
sub-tenancies (whichever shall produce the greater rental
value) and without payment of a fine or premium for a term
commencing on the Review Date equal to the then unexpired
residue of the Term or ten years (whichever shall be the
longer) and in all other respects on the terms and conditions
of this Lease (other than the amount of rent but including
the
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provisions for rent review at five yearly intervals) assuming
(if not facts):-
3.2.6.1 that the Premises are ready fit and available for
immediate occupation and use fitted out to the
requirements of the willing tenant and ready for
trading and that if the Premises or any part
thereof shall have been destroyed or damaged the
same have or has been fully restored
3.2.6.2 that rent commences to be payable on the Review
Date and that at such date the willing tenant has
already enjoyed the benefit of any rent free period
or other rental concession or incentive which on a
new letting with vacant possession might be granted
to an incoming tenant in respect of the carrying
out by such incoming tenant of fitting out works to
the Premises
3.2.6.3 that the covenants herein contained on the part of
the Landlord and the Tenant have been fully
performed and observed
3.2.6.4 that no work has been carried out to the Premises
whether by the Tenant or any other person which has
reduced the lettable floor area of the Premises or
has otherwise diminished the rental value of the
Premises
3.2.6.5 that the willing tenant is a taxable person for the
purposes of the legislation relating to VAT and is
able to recover all input tax paid by it as a
credit against output tax or otherwise
there being disregarded:-
3.2.6.6 the fact that the Tenant its sub-tenants or their
respective predecessors in title have been in
occupation of the Premises
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3.2.6.7 any goodwill attached to the Premises by reason of
the carrying on thereat of the business of the
Tenant its sub-tenants or their respective
predecessors in title
3.2.6.8 any effect on the rental value of the Premises
attributable to the existence at the Review Date of
any improvement to the Premises or any part thereof
carried out with consent where required otherwise
than in pursuance of an obligation to the Landlord
or its predecessors in title by and at the sole
cost of the Tenant its sub-tenants or their
respective predecessors in title during the Term or
during any period of occupation prior thereto
arising out of an agreement to grant the Term being
an improvement which is completed not more than 10
years before the Review Date
3.2.6.9 any effect on rental value of any obligation of the
Tenant to remove alterations or to restore or
reinstate the Premises
3.2.7 In case the Revised Rent is determined by arbitration the
arbitration shall be conducted in accordance with the
Arbitration Act 1996 or any statutory modification or
re-enactment thereof for the time being in force and it is
the intention of the parties that the arbitrator appointed
shall be entitled to make an interim award and shall make a
reasoned final award
3.2.8 In case the Revised Rent is determined by a valuer as
aforesaid
3.2.8.1 the fees and expenses of the valuer including the
cost of his appointment shall be borne as the
valuer shall direct
3.2.8.2 the valuer shall afford to each of the parties
hereto an opportunity to make representations in
writing to him and
3.2.8.3 if the valuer shall die delay or become unwilling
or incapable of acting or if for any other reason
the President for the time being of the Royal
Institution of Chartered Surveyors or the person
acting on his behalf shall in his
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absolute discretion think fit he may by writing
discharge the valuer and appoint another in his
place
3.2.9 When the amount of any rent to be ascertained as hereinbefore
provided shall have been so ascertained memoranda thereof
shall thereupon be signed by or on behalf of the Landlord and
the Tenant and annexed to this Lease and the counterpart
thereof
3.2.10 If the Revised Rent payable on and from the Review Date has
not been agreed by the Review Date rent shall continue to be
payable at the rate previously payable and forthwith upon the
Revised Rent being ascertained the Tenant shall forthwith pay
to the Landlord a sum equal to the difference between rent at
the rate of the Revised Rent in respect of the period
commencing on the Review Date and ending on the day preceding
the Rent Day immediately following such ascertainment and
rent actually paid by the Tenant in respect of such period
together with interest at the Stipulated Rate on each
instalment of such difference from the date on which each
instalment would have been payable (had the rent review been
determined by the Review Date) until actual payment and for
this purpose the Revised Rent shall be deemed to have been
ascertained on the date when the same has been agreed between
the parties or as the case may be the date of the award of
the arbitrator or of the determination by the valuer
3.2.11 If at the Review Date by reason or in consequence of any
legislation for the time being in force it shall not be
possible to review the rent payable hereunder in accordance
with the terms of this Lease or there shall be some
restriction on the right of the Landlord to demand or to
accept payment of the full amount of the rent for the time
being payable under this Lease then on each occasion that
such legislation is revoked relaxed or modified the Landlord
shall be entitled to give to the Tenant written notice
calling for a review of the rent payable hereunder as from
the date of service of such notice on the Tenant (or such
later date as may be specified therein) in the manner
hereinbefore provided for and the provisions of this Clause
3.2 shall apply (mutatis mutandis) as if the date
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of service of such notice on the Tenant (or such later date
as may be specified therein) is a Review Date hereunder
3.2.12 For the avoidance of any doubt
3.2.12.1 time shall not be of the essence for the purposes
of this Clause 3.2 and
3.2.12.2 under no circumstances shall the rent payable from
and including the Review Date be less than the rent
hereby reserved immediately prior to the Review
Date there being disregarded for this purpose any
abatement of rent pursuant to Clause 6.3 and any
such legislation or restriction as is referred to
in Clause 3.2.11 in force at the Review Date
4. TENANT'S COVENANTS
The Tenant hereby covenants with the Landlord as follows:-
4.1 RENT
To pay the several rents reserved by this Lease at the times and in
manner aforesaid together with any interim rent or rents at any time
agreed or ordered without any deduction or set off
4.2 OUTGOINGS
4.2.1 To bear pay and discharge and indemnify the Landlord against
all existing and future rates taxes duties levies charges
assessments impositions and outgoings whatsoever whether
parliamentary parochial local or of any other description and
whether or not of a capital or non-recurring nature which are
now or may at any time hereafter during the Term be charged
levied assessed or imposed upon or payable in respect of the
Premises or any part thereof or upon any owner or occupier or
other person interested in respect thereof except only
taxation (other than VAT) assessed upon the Landlord in
respect of its revenue derived from its reversionary interest
in the Premises or any dealing by it therewith PROVIDED THAT
if any of such rates or taxes
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and other outgoings as set out in this Clause 4.2 are or at
any time during the Term charged assessed or imposed in
respect of the Premises in common with other premises and not
separately the Tenant will on demand pay to the Landlord a
due proportion thereof calculated on a pro rata basis on a
ratio of the floor area of the Premises to the lettable floor
area assessed to be determined by the Landlord (whose
decision shall be final and binding on the Tenant) and will
be recoverable as rent and arrears
4.2.2 If the Landlord shall suffer any loss of rating relief which
may be applicable to empty premises after the end of the Term
by reason of such relief being allowed to the Tenant in
respect of any period before the end of the Term to make good
such loss to the Landlord
4.2.3 To be solely responsible for and promptly to pay all costs
and charges for water gas electricity telephone and any other
services used or consumed in the Premises including all meter
rents and standing charges but so that the Landlord shall not
be responsible for any interruption or failure in the supply
of any such services
4.3 INTEREST ON ARREARS
If and whenever the Tenant shall fail to pay the rents or any other
monies due under this Lease on the due date (whether formally demanded
or not) or the Landlord shall with good reason refuse to accept the
same then (without prejudice to any other right or remedy of the
Landlord including the right of re-entry hereinafter contained) the
Tenant shall pay to the Landlord (whether formally demanded or not)
interest at the Stipulated Rate on such rents or other monies as the
case may be from the date when the same became due until payment
thereof (as well after as before judgment)
4.4 SERVICE CHARGE
To pay to the Landlord the Service Charge in accordance with Schedule 4
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4.5 REPAIRS
4.5.1 At all times during the Term to keep and maintain the
Premises in good and substantial repair and condition (damage
by the Insured Risks excepted save to the extent that payment
of any insurance monies is withheld by reason of or arising
out of any act omission neglect or default of the Tenant or
any sub-tenant or their respective servants agents licensees
or invitees) Provided always that the Tenant shall not be
liable to remedy any by inherent defect in the Premises
4.5.2 To keep in good and safe repair all Conduits exclusively
serving the Premises and to indemnify the Landlord against
all liability howsoever arising from any failure to repair or
the misuse or overloading of any Conduits serving the
Premises
4.5.3 To maintain in good and serviceable repair and condition the
Landlord's fixtures and fittings and all apparatus plant
machinery and equipment (including but without prejudice to
the generality of the foregoing any lifts or lift shafts and
any heating or air conditioning systems and any sprinkler
system) in or upon the Premises and to replace such of them
as may become worn out lost unfit for use or destroyed by
substituting others of a like or more modern nature and of
good quality and if the Landlord shall at any time so require
to enter into agreements upon terms first approved in writing
by the Landlord with the manufacturers thereof or with
approved maintenance contractors for the regular inspection
and servicing of the same
4.5.4 To remedy any breach of covenant and to repair and make good
all defects decays and wants of repair in respect of the
Premises of which notice in writing shall be given by the
Landlord to the Tenant and for which the Tenant may be liable
hereunder within one calendar month after the giving of such
notice provided that in the case of default by the Tenant it
shall be lawful for (but not obligatory upon) the Landlord
(but without prejudice to the right of re-entry hereinafter
contained or other rights of the Landlord with regard
thereto) to enter upon the Premises and remedy the breach
and/or make good such defects decays and wants
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of repair and the cost thereof and all expenses (including
surveyors' and other professional fees) together with
interest thereon at the Stipulated Rate from the date of
expenditure by the Landlord until payment by the Tenant as
well after as before judgment shall be a debt due from the
Tenant to the Landlord and be forthwith recoverable by action
4.5.5 To keep the Premises clean and in a neat and tidy condition
and keep all rubbish and waste in enclosed receptacles on the
Premises or where the Landlord directs and to empty the same
at least once a week
4.5.6 To clean as often as may be requisite the inside and outside
of the window panes and frames of the Premises
4.5.7 To forthwith and in any event within three months from the
date hereof upgrade all of the existing lighting to the
office areas within the Premises in a good and workmanlike
manner and according to all relevant codes of practice and to
the satisfaction of the Landlord.
4.6 DECORATION
4.6.1 As often as may be necessary and in any event not less often
than once in every third year of the Term and also in the
last three months thereof howsoever determined to Decorate in
a tint or colour to be approved by the Landlord's Surveyor
the outside of the Premises
4.6.2 As often as may be necessary and in any event not less often
than once in every fifth year of the Term and also in the
last three months thereof howsoever determined and in such
last three months in a tint or colour to be approved by the
Landlord's Surveyor to Decorate the inside of the Premises
4.6.3 So often as may be necessary but not less often than in every
tenth year of the Term and also in the last year thereof
howsoever determined to have professionally treated in
accordance with the best approved manner for cleansing
preserving and protecting the same all the external surfaces
of the Premises and all additions thereto
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4.7 ALTERATIONS
4.7.1 Not to erect any new building or structure on the Premises
nor to cut injure maim remove or alter any of the roofs
load-bearing walls columns floors timbers stanchions beams
supports girders or other structural parts of the Premises
nor to merge the Premises with any adjoining premises nor to
make any alteration or addition (whether structural or
non-structural) to the exterior of the Premises or to the
external appearance of the Premises nor to make any internal
non-structural alteration or addition whatsoever of in or to
the Premises except
4.7.1.1 with the prior written consent of the Landlord
(which shall not be unreasonably withheld or
delayed)
4.7.1.2 subject to such terms and conditions (including
provision for reinstatement at the Tenant's cost on
the expiration or sooner determination of the Term)
as the Landlord may require
4.7.1.3 in accordance with drawings and specifications
previously submitted in triplicate to and approved
in writing by or on behalf of the Landlord (such
approval not to be unreasonably withheld or
delayed) and
4.7.1.4 after having obtained and supplied to the Landlord
copies of all requisite consents licences and
permissions for the carrying out of such works from
any local public or other authority or body and
after the Landlord shall have notified the Tenant
in writing that the same are satisfactory to it
(such notification not to be unreasonably withheld
or delayed)
4.7.2 Not to make or carry out any alteration addition or extension
to any of the water gas electricity and other public utility
service systems serving the Premises except with the prior
written consent of the Landlord (which shall not be
unreasonably withheld or delayed) and in accordance with the
relevant codes of practice of the statutory undertaker
concerned and to supply to the Landlord upon request an
adequate drawing or
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drawings showing the actual position of all pipes wires
cables and other services within the Premises installed
amended or extended by the Tenant
4.7.3 In the event of the Tenant failing to observe this covenant
it shall be lawful for the Landlord and its agents or
surveyors with or without workmen and others and all persons
authorised by the Landlord with any necessary materials and
appliances to enter upon the Premises and remove any
alterations or additions and execute such works as may be
necessary to restore the Premises to their former state and
the cost thereof and all expenses (including surveyors' and
other professional fees) together with interest thereon at
the Stipulated Rate from the date of expenditure by the
Landlord until payment by the Tenant as well after as before
judgment shall be a debt due from the Tenant to the Landlord
and be forthwith recoverable by action
4.8 ENTRY
To permit the Landlord and its agents and all persons authorised by
them with or without workmen and appliances at all reasonable times to
enter the Premises
4.8.1 to examine the state of repair and condition thereof
4.8.2 to check and take inventories of the Landlord's fixtures and
fittings and the plant machinery and equipment therein
4.8.3 to repair and maintain the Premises
4.8.4 to repair and maintain or execute any work upon any adjoining
or neighbouring premises belonging to the Landlord or to
cleanse empty repair or renew any Conduits serving or
belonging to the same or to construct any building or other
erection on such adjoining or neighbouring premises or for
the provision of any of the Services referred to in Schedule
4 all physical damage occasioned thereby to the Premises
being made good as soon as reasonably possible
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4.8.5 for any other purpose (including measurement and inspection
in relation to any rent review hereunder or any renewal of
this Lease) connected with the interest of the Landlord in
the Premises or any dealing therewith or
4.8.6 to exercise the rights herein excepted and reserved
4.9 USE
4.9.1 Subject always to the following provisions of this Clause 4.9
not to use the Premises otherwise than for the Permitted Use
and in accordance with the requirements and conditions of any
planning permission authorising such use from time to time
4.9.2 Not to do on the Premises anything which may be illegal or
immoral or a nuisance or annoyance or cause danger or injury
or damage to the Landlord or any tenant or any neighbouring
owner or occupier and to pay all costs charges and expenses
incurred by the Landlord in abating a nuisance and in
executing such works as may be required to abate a nuisance
in obedience to any notice served upon the Landlord in
respect of or incidental to the Premises or the use thereof
4.9.3 Not to use the Premises for any noxious noisy or offensive
trade or business and not to hold any sale by auction or
public show nor keep any live animals or birds on the
Premises and not to allow on the Premises anything which is
or may become dangerous offensive combustible inflammable
radioactive or explosive
4.9.4 Not to trade or display goods outside the Premises nor to
cause any obstruction outside the Premises
4.9.5 Not to use on the Premises any machine (other than machinery
normally associated with the Permitted Use and which where
appropriate shall be mounted so as to minimise noise and
vibration) without the written consent of the Landlord and
not to use on the Premises any machinery or sound
reproduction or amplifying equipment which shall be noisy or
cause vibration or be a nuisance disturbance or annoyance to
the
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Landlord or the owners and/or occupiers of any adjoining or
neighbouring premises
4.9.6 Not to do anything which imposes any excessive load or strain
on the Premises or any part thereof
4.9.7 Not to suffer or permit any person to reside or sleep on the
Premises
4.9.8 Not to discharge anything into the Conduits serving the
Premises which will be corrosive or harmful or which may
cause any obstruction or deposit therein
4.9.9 Not to commit any waste upon or to the Premises
4.9.10 Not to use the Premises as an office for a government agency
or other public authority which would involve the attendance
thereat of members of the public for the purpose of seeking
employment or enrolling for or collecting any statutory
social security health insurance or other benefit payment or
applying for or collecting any licence passport certificate
or similar document or paying thereat any tax imposition or
other financial liability
4.9.11 If the Premises are continually unoccupied for more than one
month to provide security and caretaking arrangements to
afford the Premises reasonable protection against vandalism
theft or unlawful occupation
4.9.12 To keep the Premises at a temperature sufficiently high to
prevent freezing of water in any Conduits
4.9.13 Not to use any parking spaces which the Tenant is entitled to
use otherwise than for parking cars
4.10 ALIENATION
4.10.1 Not to assign or charge part only of the Premises
4.10.2 Save for an underletting in accordance with the succeeding
provisions of this Clause not to underlet the whole or any
part of the Premises or to
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part with possession of or share occupation of the whole or
any part of the Premises and not to permit any person
deriving title under the Tenant by way of permitted
underlease so to do in respect of the Premises
4.10.3 Not under any circumstances to create or permit the creation
of any interest derived out of this Lease whether mediate or
immediate and however remote or inferior
4.10.3.1 at a fine or premium or other capital sum (and so
that no such fine premium or other capital sum
shall be taken)
4.10.3.2 except at a rent which is not less than the open
market rental value of the Premises or the rent
hereby reserved at the time of such underletting
(or in the case of an underlease of part only of
the Premises a proportionate part thereof)
whichever is the higher
4.10.3.3 except on terms which prohibit the commutation of
rent
4.10.3.4 for a term which shall extend beyond a date on
which the rent payable under this Lease is to be
reviewed unless such underletting shall include
provisions approved by the Landlord for rent
reviews at the times and in accordance with the
terms of this Lease
4.10.4 Not to assign part with possession or charge the whole of the
Premises nor permit any person deriving title under the
Tenant so to do without the prior written consent of the
Landlord which shall not be unreasonably withheld but so that
for the purposes of section 19(1A) of the Landlord and Tenant
Act 1927 (as amended by the 1995 Act) it is agreed that it
shall be reasonable for the Landlord to withhold consent to
an assignment of the whole of the Premises unless:-
4.10.4.1 the assignee is not a Group Company
4.10.4.2 the assignee shall by deed enter into a direct
covenant with the Landlord to observe and perform
the covenants and
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provisions of and to pay the rents reserved by this
Lease for (subject to the provisions of the 1995
Act) the remainder of the Term and a guarantor or
guarantors acceptable to the Landlord (if more than
one jointly and severally) shall if the Landlord
reasonably so requires enter into a covenant and
guarantee with and to the Landlord in the terms set
out in Schedule 2 as if references therein to the
"Tenant" were references to the assignee and
4.10.4.3 the Tenant together with any other person in whom
the term created by this Lease shall previously
have been vested and who has not been released from
liability hereunder by virtue of section 11 of the
1995 Act shall by deed enter into an authorised
guarantee agreement in respect of the assignee
which shall satisfy the requirements set out in
Schedule 3 and
4.10.4.4 each person who is guarantor of the Tenant under
this Lease immediately prior to the assignment
shall enter into a guarantee in the same terms
(mutatis mutandis) as Schedule 2 in respect of the
liability of the Tenant under any authorised
guarantee agreement and
4.10.4.5 the Tenant permits every rent deposit or other
security held by the Landlord immediately prior to
the assignment in respect of any liability of the
Tenant under this Lease to be held as security for
the liability of the Tenant under any authorised
guarantee agreement and
4.10.4.6 at the Approval Date no rent or other monies are
due to the Landlord under this Lease and unpaid and
4.10.4.7 the Tenant and/or the assignee complies with such
other conditions as the Landlord may reasonably
impose
4.10.5 Subject as aforesaid not to underlet the whole of the
Premises or any part thereof (being a part which comprises
only a Letting Unit and in
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circumstances where the Tenant continues to occupy some other
part of the Premises which itself comprises a Letting Unit)
without the prior written consent of the Landlord (which
shall not be unreasonably withheld)
4.10.6 To procure in the case of any permitted underletting of the
Premises (whether mediate or immediate) that on or before the
grant of the relevant underlease:-
4.10.6.1 the underlessee shall covenant with the Landlord by
deed to observe and perform the Tenant's covenants
and conditions in this Lease (except the covenant
to pay rent) (so far as the same relate to the part
of the Premises comprised in the underlease) and
those of the underlessee in the relevant underlease
4.10.6.2 if the Landlord shall so require a guarantor or
guarantors acceptable to the Landlord shall
covenant (if more than one jointly and severally)
with the Landlord to guarantee the observance and
performance by the underlessee of its covenants to
be contained in such underlease such guarantee to
be given (mutatis mutandis) in the form of the
provisions contained in Schedule 2
4.10.7 To procure that any permitted immediate or mediate underlease
contains:-
4.10.7.1 covenants by the underlessee with the underlessor
prohibiting the underlessee from doing or allowing
any act or thing on or in relation to the premises
demised by such underlease inconsistent with or in
breach of the Tenant's obligations in this Lease
4.10.7.2 a condition for re-entry by the underlessor on
breach of any covenant by the underlessee
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4.10.7.3 an absolute prohibition on any further underletting
or parting with possession or sharing of occupation
of the premises demised by the underlease (save by
way of assignment of the whole thereof)
4.10.7.4 a prohibition on any assignment of the whole of the
premises demised by the underlease without the
consent of the Landlord
4.10.7.5 an agreement duly authorised by an Order of a Court
of competent jurisdiction excluding in relation to
that underlease the provisions of sections 24 to 28
of the Landlord and Tenant Act 1954 (as amended) or
any modification or re-enactment thereof
4.10.8 To enforce performance by every such underlessee of the
covenants and conditions in his underlease and not to release
or waive any such covenants or conditions
4.10.9 To operate and enforce all provisions for the review of rent
contained in any underlease but not to agree the amount of
any revised rent arising as a result of any such review of
rent without the prior written consent of the Landlord (such
consent not to be unreasonably withheld)
4.10.10 Upon every application for consent required by this Clause to
disclose to the Landlord such information as to the terms
proposed as the Landlord may require
4.10.11 Not to enter into any variation of the terms of any
underlease nor to accept a surrender of the same in respect
of part only (as opposed to the whole) of the premises
underlet
4.10.12 Notwithstanding the foregoing provisions of this Clause 4.10
the Tenant shall be entitled without the Landlord's consent
to share occupation of the Premises with any Group Company
provided that
4.10.12.1 no relationship of landlord and tenant is thereby
created
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4.10.12.2 such company vacates the Premises forthwith upon
ceasing to be a Group Company and
4.10.12.3 the Landlord is notified of the name and address of
such company within seven days of the commencement
of its occupation
4.11 REGISTRATION OF DOCUMENTS
4.11.1 Within one month after any assignment or underlease or any
transmission or other devolution relating to the Premises or
any part thereof to give notice thereof to the Landlord's
solicitor and to furnish him with a certified copy of any
document relating thereto and to pay to the Landlord's
solicitor a reasonable fee (not being less than (pound)30)
plus VAT thereon
4.11.2 To supply to the Landlord on request the names and addresses
of any tenant deriving title from the Tenant (whether
mediately or immediately) together with details of the rent
payable by any such tenant and the other terms of such
tenancy
4.11.3 To supply to the Landlord any details required by the
Landlord pursuant to Section 40 of the Landlord and Tenant
Act 1954 and to supply the Landlord with full details of any
notices given pursuant to Section 25 of the Landlord and
Tenant Act 1954 by the Tenant to any sub-tenant and full
details of any notices received by the Tenant from any
sub-tenant pursuant to Section 26 of the Landlord and Tenant
Act 1954
4.12 COMPLIANCE WITH STATUTES
To comply in all respects with and in a proper and workmanlike manner
to execute all works required under the provisions of all statutes for
the time being in force and the directions of any competent authority
relating to the Premises or any part thereof or the use thereof or
anything contained therein or the employment therein of any person or
persons and not to do or omit or suffer to be done or omitted on or
about the Premises any act or thing by reason of which the Landlord may
under any enactment incur or have imposed upon it or become liable to
pay any levy penalty
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damages compensation costs charges or expenses and to indemnify and
keep indemnified the Landlord against all claims demands costs expenses
and liability in respect of the foregoing
4.13 PLANNING/ENVIRONMENTAL MATTERS
4.13.1 Not to apply for planning permission in respect of the
Premises without the Landlord's prior written consent (which
shall not be unreasonably withheld in respect of any addition
or alteration in respect of which the Landlord's consent is
not to be unreasonably withheld under the terms of this
Lease) and if the Landlord attaches conditions to any such
consent not to apply for any planning permission except in
accordance with those conditions
4.13.2 At all times during the Term to comply with the provisions
and requirements of the Planning Acts and of any planning
permissions (and the conditions thereof) relating to or
affecting the Premises or the use thereof or any operations
works acts or things carried out executed done or omitted
thereon and to keep the Landlord indemnified in respect
thereof
4.13.3 Subject to Clause 4.13.1 as often as occasion requires during
the Term at the Tenant's expense to obtain and if appropriate
renew all planning permissions and serve all notices required
under the Planning Acts for the carrying out by the Tenant of
any operations or the institution or continuance by the
Tenant of any use of the Premises or any part thereof
4.13.4 To pay and satisfy any charge imposed under the Planning Acts
in respect of the carrying out or maintenance by the Tenant
of any such operation or the institution or continuance by
the Tenant of any such use as aforesaid
4.13.5 Notwithstanding any consent which may be granted by the
Landlord under this Lease not to carry out or make any
alteration or addition to the Premises or any change of use
of the Premises (being an alteration or addition or change of
use prohibited by or for which the Landlord's consent is
required under this Lease and for which a planning permission
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is needed) before a planning permission for such alteration
addition or change of use has been produced to and
acknowledged by the Landlord as satisfactory provided that
the Landlord may refuse to express such satisfaction if the
period of such permission or anything contained in or omitted
from it will in the opinion of the Landlord's Surveyor be
likely to prejudice the Landlord's interest in the Premises
either during the Term or on or after the expiration or
earlier determination of the Term
4.13.6 Unless the Landlord otherwise directs in writing to carry out
and complete before the expiration or earlier determination
of the Term any work required to be carried out to the
Premises as a condition of any planning permission granted
during the Term whether or not the date by which the planning
permission requires such works to be carried out is during
the Term and any development begun on the Premises in respect
of which the Landlord shall or may be or become liable for
any charge or levy under the Planning Acts
4.13.7 When called upon so to do to produce to the Landlord and the
Landlord's Surveyor all plans documents and other evidence
reasonably required by the Landlord to satisfy itself that
the Tenant's obligations in this Clause have been complied
with
4.13.8 Not without the prior written consent of the Landlord to
enter into a planning obligation for the purposes of Section
106 of the Town and Country Planning Act 1990
4.13.9 Where any planning permission is granted subject to
conditions involving the carrying out of works upon or change
of use of the Premises the Landlord may as a condition of its
consent to the carrying out of such works or change of use
require the Tenant to provide security for the due compliance
with those conditions and no works shall be commenced and no
change of use shall be implemented until such security has
been provided to the Landlord's satisfaction
4.13.10 As soon as practicable to notify the Landlord of any order
direction proposal or notice under the Planning Acts served
on or received by the
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Tenant or coming to the Tenant's notice which relates to or
affects the Premises and to produce to the Landlord if
required any such order direction proposal or notice in the
Tenant's possession and not to take any action in respect of
such order direction proposal or notice without the
Landlord's approval
4.13.11 In relation to any act the commission or omission of which
requires any consent licence or other authority under the
Environmental Protection Act not to do or omit to do (as the
case may be) such act without obtaining such authority and
not to apply for such authority without the Landlord's prior
written consent
4.14 EASEMENTS
Not to obstruct any window light or way belonging to the Premises or to
any adjoining or neighbouring premises nor acknowledge that any
easement or other right for the benefit of the Premises is enjoyed by
consent of any other person nor permit any new easement right or
encroachment to be made into against or on the Premises and to give
immediate notice to the Landlord if any easement right or encroachment
against or affecting the Premises shall be made or attempted and at the
Landlord's request and the Tenant's cost to adopt such means as may be
reasonably required to prevent the same
4.15 NOTIFICATIONS
Forthwith on receipt of any permission notice order or proposal
relating to the Premises or the use or condition thereof given or
issued by any governmental local or other public or competent authority
to give full particulars thereof to the Landlord and if so required by
the Landlord to produce the same to the Landlord and to take all
necessary steps to comply therewith and also when requested by the
Landlord to make or join with the Landlord in making such objections
and representations against or in respect of the same as the Landlord
shall deem expedient
4.16 DEFECTS
Forthwith upon becoming aware of the same to give notice in writing to
the Landlord of any defect in the state or condition of the Premises
which would or might give rise
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to an obligation upon the Landlord to do or refrain from doing any act
or thing in order to comply with any duty of care imposed upon the
Landlord and to indemnify the Landlord against or in respect of any
losses claims actions costs demands or liability arising out of any
failure of the Tenant to comply with its obligations under this Lease
and at all times to give such notice and display such signs as the
Landlord having regard to such duty of care requires to have displayed
at the Premises
4.17 FIRE FIGHTING
To keep the Premises supplied and equipped with all fire fighting and
extinguishing appliances from time to time required by law or required
by the insurers of the Premises or reasonably required by the Landlord
such appliances being kept open to inspection and properly maintained
and not to obstruct or permit or suffer to be obstructed the access to
or means of working such appliances or the means of escape from the
Premises in case of fire
4.18 ADVERTISEMENTS/AERIALS
Not without the prior written consent of the Landlord to affix or
exhibit any advertisement placard notice or sign either outside the
Premises or inside the Premises so as to be seen from the outside nor
without such consent to install any flagpole mast or outside satellite
receiving dish or television or radio aerial on the Premises and if the
Landlord so requires to remove at the end or earlier determination of
the Term any item so exhibited or installed making good all damage
caused thereby
4.19 NOTICE BOARDS
To permit the Landlord or its agents to affix upon any suitable part of
the Premises a notice board or bill relating to any reletting of the
same or to any sale or other dealing with any interest in reversion to
this Lease and the Tenant will not remove or obscure the same and will
at all reasonable times and on reasonable prior notice permit those
authorised by the Landlord in connection with any such reletting sale
or other dealing to enter and view the Premises without interruption
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4.20 EXPENSES
To pay to the Landlord on demand and on an indemnity basis all costs
charges expenses damages and losses (including but without prejudice to
the generality of the foregoing legal costs bailiff's fees and
surveyor's fees) incurred by the Landlord in relation to or incidental
to or in contemplation of:-
4.20.1 the preparation and service of a notice under Section 146 of
the Law of Property Act 1925 and/or any proceedings relating
to the Premises whether under Sections 146 and/or 147 of the
Law of Property Act 1925 or otherwise (whether or not any
right of re-entry or forfeiture has been waived by the
Landlord or a notice served under the said Section 146 is
complied with by the Tenant or the Tenant has been relieved
under the provisions of the said Law of Property Act 1925 and
notwithstanding forfeiture is avoided otherwise than by
relief granted by the Court) and to keep the Landlord fully
indemnified against all costs charges expenses claims and
demands whatsoever in respect of the said proceedings and the
preparation and service of the said notices
4.20.2 (without prejudice to the generality of the foregoing) the
preparation and service of any notice or schedule relating to
the repair of the Premises whether served on the Tenant
during or after the expiration or earlier determination of
the Term and
4.20.3 procuring the remedying of any breach of covenant on the part
of the Tenant or any sub-tenant or their respective
predecessors in title contained in this Lease
4.20.4 every application made by the Tenant for a consent or licence
required by the provisions of this Lease whether such consent
or licence is granted or refused or proffered subject to any
qualification or condition or whether the application is
withdrawn
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4.21 NEW GUARANTOR
To notify the Landlord within twenty eight days if:-
4.21.1 any Guarantor being an individual (or if individuals any one
of them) shall become bankrupt or shall make any assignment
for the benefit of or enter into any arrangement with his
creditors either by composition or otherwise or have any
distress or other execution levied on his goods or have a
receiver appointed under the Mental Health Act 1983
4.21.2 any Guarantor being an individual (or if individuals any one
of them) shall die
4.21.3 any Guarantor being a body corporate (or if bodies corporate
any one of them) has a winding up order made in respect of it
other than a members' voluntary winding up of a solvent
company for the purposes of amalgamation or reconstruction
approved by the Landlord (such approval not to be
unreasonably withheld) or has a receiver administrator or an
administrative receiver appointed of it or any of its assets
or has any distress or other execution levied on its goods or
is dissolved or struck off the Register of Companies or
(being a body corporate incorporated outside the United
Kingdom) is dissolved or ceases to exist under the laws of
its country or state of incorporation
and in any such case if the Landlord so requires then at the Tenant's
expense within twenty eight days of such requirement to procure that
some other person or persons or body or bodies corporate reasonably
acceptable to the Landlord shall execute a guarantee in the terms of
Schedule 2 with such amendments as the Landlord shall reasonably
require in the circumstances
4.22 INDEMNITY
To keep the Landlord indemnified from and against all loss damage
actions proceedings claims demands costs and expenses of whatsoever
nature and whether in respect of any injury to or the death of any
person or damage to any property movable or immovable or otherwise
howsoever arising directly or indirectly from the repair or the state
of repair or condition of the Premises or from any breach of
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covenant on the part of the Tenant herein contained or from the use of
the Premises or out of any works carried out at any time during the
Term to the Premises or out of anything now or during the Term attached
to or projecting from the Premises or as a result of any act neglect or
default by the Tenant or by any sub-tenant or by their respective
servants agents licensees or invitees
4.23 YIELD UP
At the expiration or sooner determination of the Term:
4.23.1 quietly to yield up the Premises to the Landlord with vacant
possession in such state and condition as shall in all
respects be consistent with a full and due performance by the
Tenant of the covenants on its part herein contained (trade
or tenant's fixtures and fittings only excepted)
4.23.2 if so required by the Landlord to remove all fixtures and
fittings installed in the Premises during the Term
4.23.3 to make good to the reasonable satisfaction of the Landlord
all damage caused as a result of the removal by the Tenant of
any fixtures and fittings
4.23.4 to remove all signs and nameplates indicating the connection
or former connection of the Tenant with the Premises
4.24 VAT
4.24.1 To pay to the Landlord by way of additional rent such VAT as
may be or become payable in respect of the rents reserved by
and other monies payable under and the consideration for all
taxable supplies received or deemed to be received by the
Tenant under or in connection with this Lease
4.24.2 In every case where the Tenant has agreed to reimburse or
indemnify the Landlord in respect of any payment made by the
Landlord under the terms of or in connection with this Lease
to reimburse in addition any VAT paid by the Landlord on such
payment
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4.25 OBSERVE COVENANTS
To observe and perform the agreements covenants and
stipulations (if any) referred to in Part 4 of Schedule 1 so
far as any of the same are still subsisting and capable of
taking effect and relate to the Premises and to keep the
Landlord indemnified against all actions proceedings costs
claims demands and liability in any way relating thereto
5. LANDLORD'S COVENANT
The Landlord hereby covenants with the Tenant that the Tenant paying
the rents and other monies hereby reserved and performing and observing
the covenants conditions and agreements on the part of the Tenant
herein contained the Tenant may peaceably hold and enjoy the Premises
during the Term without any interruption by the Landlord or any person
lawfully claiming through under or in trust for the Landlord
6. INSURANCE
6.1 LANDLORD'S OBLIGATIONS
The Landlord (for so long as and to the extent that the
Landlord has an insurable interest in the Premises) hereby
covenants with the Tenant as follows:-
6.1.1 Save to the extent that any insurance shall be
vitiated by any act neglect default or omission of
the Tenant or any sub-tenant or their respective
servants agents licensees or invitees the Landlord
will insure or cause to be insured the Premises
against loss or damage by the Insured Risks in a
sum equal to the likely cost of completely
rebuilding reinstating and replacing the same
(taking into account estimated increases in
building costs) together with the cost of
demolition shoring hoarding and removal of debris
and a proper provision for professional fees in
respect of rebuilding and reinstating together in
each case with VAT and against Loss of Rent
6.1.2 If reasonably so required by the Tenant produce to
the Tenant from time to time reasonable evidence of
the terms of the Landlord's policy of insurance and
the fact that the policy is subsisting and in
effect
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6.1.3 In case of damage or destruction to the Premises by
any of the Insured Risks to expend when lawful so
to do all monies received by the Landlord (other
than in respect of rent and fees) under the
Landlord's insurance in or towards reinstating such
damage or destruction so far as practicable but if
reinstatement as aforesaid shall not be permitted
or possible or shall be frustrated the insurance
monies shall belong to the Landlord absolutely
provided always that in such circumstances the
Landlord may at its option replace the building or
buildings originally comprised within the Premises
by a building or buildings generally similar in
concept thereto and (having regard to the then
principles of good estate planning) of a similar
order and size and being in or about the same
position or positions as its or their predecessor
or predecessors
6.2 TENANT'S OBLIGATIONS
The Tenant hereby covenants with the Landlord as follows:-
6.2.1 To pay to the Landlord on demand:-
6.2.1.1 all premiums from time to time payable by
the Landlord for insuring the Premises
against loss or damage by the Insured
Risks in accordance with Clause 6.1 and
6.2.1.2 all premiums from time to time payable by
the Landlord for insuring Loss of Rent and
6.2.1.3 any excess deducted by insurers in respect
of any claim relating to the Premises and
6.2.2 Save as required by Clause 6.2.7 not to effect any
separate insurance of the Premises against loss or
damage by any of the Insured Risks but if the Tenant
shall become entitled to the benefit of any
insurance on the Premises then the Tenant shall
apply all monies received by virtue of such
insurance in making good the loss or damage in
respect of which the same shall have been received
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6.2.3 Not to carry on upon the Premises any trade business
or occupation in any manner or do any other thing
which in the reasonable opinion of the Landlord may
make void or voidable any policy for the insurance
of the Premises or any adjoining or neighbouring
property against any risk for the time being
required by the Landlord to be covered or render any
increased or extra premium payable for such
insurance (without in the latter event first having
paid every such increased or extra premium) and to
pay to the Landlord on demand any increased premiums
payable in respect of the Premises or any adjoining
or neighbouring premises arising by reason of the
Premises being unoccupied
6.2.4 To carry out in accordance with the directions of
the Landlord all such works as may be required by it
for the better protection of the Premises and to
comply with the requirements of the Landlord's
insurers in respect of the Premises
6.2.5 In the event of the Premises or any part thereof
being destroyed or damaged by any peril whatsoever
to give notice thereof to the Landlord as soon as
such destruction or damage shall come to the notice
of the Tenant stating whether and to what extent
such destruction or damage was brought about
directly or indirectly by any of the Insured Risks
6.2.6 In the event of the Premises or any adjoining or
neighbouring premises of the Landlord or any part
thereof being destroyed or damaged by any of the
Insured Risks and the insurance money under any
insurance against the same effected thereon by the
Landlord being wholly or partly irrecoverable by
reason solely or in part of any act or default of
the Tenant or any sub-tenant or their respective
servants agents licensees or invitees then and in
every such case the Tenant will forthwith pay to the
Landlord the whole or (as the case may be) the
irrecoverable portion of the cost (including
professional and other fees and VAT) of completely
rebuilding and reinstating the same
6.2.7 To insure and keep insured in the joint names of the
Landlord and the Tenant all the plate glass (if any)
forming part of the Premises against breakage or
damage for a sum not less than the full
reinstatement value
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thereof for the time being in such insurance company
of repute and through such agency as shall from time
to time be nominated by the Landlord and whenever
reasonably required by the Landlord to produce the
said policy of insurance or a copy thereof (and if
requested to leave a copy thereof with the Landlord)
and the receipt for the current year's premiums and
forthwith to lay out all monies received under such
insurance and such other money as may be necessary
in reinstating the glass with glass of the same
quality and thickness
6.2.8 To make up out of its own money any deduction in any
insurance monies paid by the Landlord's insurers
made as a result of the faulty repair or maintenance
of the Premises
6.3 ABATEMENT OF RENT
If the Premises or any part thereof shall be destroyed or
damaged by any Insured Risk so as to be unfit for occupation
or use then save to the extent that the insurance of the
Premises shall have been vitiated by any act neglect default
or omission of the Tenant or any sub-tenant or their
respective servants agents licensees or invitees the rent
first hereinbefore reserved or a fair and just proportion
thereof according to the nature and extent of the damage
sustained (the amount of such proportion if it cannot be
agreed to be determined by a single arbitrator to be appointed
on the application of either party by the President for the
time being (or other next senior officer available) of the
Royal Institution of Chartered Surveyors whose decision shall
be final and binding) shall be suspended until the Premises or
the damaged portion thereof shall have been reinstated or made
fit for occupation and use or (if earlier) until the insurance
effected or caused to be effected by the Landlord in respect
of Loss of Rent shall be exhausted
6.4 COMMISSIONS
All monies payable by the Tenant under Clause 6.2 shall be
paid without deduction of any agency or other commission paid
or allowed to the Landlord in respect thereof or otherwise
which the Landlord shall be entitled to retain for the
Landlord's own benefit free of any obligation to bring the
same into account under this Lease
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7. PROVISOS
Provided always and it is hereby agreed and declared as follows:-
7.1 FORFEITURE
If and whenever:-
7.1.1 the rents hereby reserved or any part thereof shall
be in arrear or unpaid for the space of fourteen
days after the same shall have become due (whether
formally demanded or not); or
7.1.2 there shall be any other breach non-performance or
non-observance of any of the covenants and
conditions herein contained and on the part of the
Tenant or the Guarantor to be observed or performed;
or
7.1.3 the Tenant or the Guarantor enters into an
arrangement or composition for the benefit of its
creditors; or
7.1.4 the Tenant or the Guarantor has any distress or
other execution levied on its goods; or
7.1.5 the Tenant or the Guarantor (being in either case an
individual) commits an act of bankruptcy or has an
administration order made in respect of it or
appears unable to pay its debts within the meaning
of Section 268 of the Insolvency Act 1986; or
7.1.6 the Tenant or the Guarantor (being in either case a
body corporate) has a winding up order made in
respect of it other than a members' voluntary
winding up of a solvent company for the purposes of
amalgamation or reconstruction approved by the
Landlord (such approval not to be unreasonably
withheld) or has a receiver administrator or an
administrative receiver appointed of it or any of
its assets or is dissolved or struck off the
Register of Companies or (being a body corporate
incorporated outside the United Kingdom) is
dissolved or ceases to exist under the laws of its
country or state of incorporation or appears unable
to pay its debts within the meaning of Section 123
of the Insolvency Act 1986
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then and in any such case it shall be lawful for the Landlord
or any person authorised by the Landlord at any time
thereafter to re-enter upon the Premises or any part thereof
in the name of the whole and thereupon the Term shall
absolutely determine without prejudice to any right or remedy
of the Landlord in respect of any breach of the Tenant's or
the Guarantor's covenants contained in this Lease
7.2 EXCLUSION OF USE WARRANTY
Nothing in this Lease or in any consent granted by the
Landlord under this Lease shall imply or warrant that the
Premises may be used for any purpose whatsoever under the
Planning Acts now or from time to time in force (including the
Permitted Use) or that the Premises are or will remain
otherwise fit for any such use
7.3 VAT
Except where otherwise expressly stated in this Lease all rent
money or other consideration in respect of supplies for VAT
purposes received or deemed to be received by the Tenant under
or in connection with this Lease is exclusive of VAT
7.4 SERVICE OF NOTICES
Any notice required to be served under this Lease shall be in
writing and shall be properly served if it complies with the
provisions of Section 196 of the Law of Property Act 1925 as
amended by the Recorded Delivery Service Act 1962 or Section
23 of the Landlord and Tenant Act 1927 and in addition any
notice shall be sufficiently served if sent by facsimile
transmission to the party to be served and service shall be
deemed to be made on the date of transmission if transmitted
before 4.00 p.m. on the date of transmission but otherwise on
the next day
7.5 DEVELOPMENT OF NEIGHBOURING PREMISES
The Landlord shall be entitled to carry out or permit the
development of any adjoining or neighbouring premises and to
build on or into any boundary wall of the Premises or to
re-route any services in the Premises without payment of
compensation to the Tenant for any damage or otherwise
notwithstanding that the access of light or air to the
Premises may thereby be diminished or otherwise
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interfered with provided that nothing shall adversely affect
the Tenant's use and occupation of the Premises for the
Permitted Use.
7.6 COMPENSATION
Any statutory right of the Tenant or any sub-tenant to claim
compensation from the Landlord on vacating the Premises shall
be excluded as far as the law allows
7.7 IMPLIED EASEMENTS
The operation of Section 62 of the Law of Property Act 1925
shall be excluded from this Lease and the only rights granted
to the Tenant are those expressly set out in this Lease and
the Tenant shall not by virtue of this Lease be deemed to have
acquired or be entitled to and the Tenant shall not during the
Term acquire or become entitled by any means whatsoever to any
easement from or over or affecting any other land or premises
now or at any time hereafter belonging to the Landlord and not
comprised in this Lease
7.8 DISPUTES WITH ADJOINING OCCUPIERS
Any dispute arising as between the Tenant and the lessees
tenants or occupiers of adjoining or neighbouring premises
belonging to the Landlord relating to any easement right or
privilege in connection with the Premises or relating to the
party or other walls of the Premises or as to the amount of
any contribution towards the expenses of works to services or
matters used in common shall in the first instance be referred
to the Landlord without excluding the right of the Tenant to
resolve the dispute in any way which shall be legally
available to them,
7.9 TENANT'S EFFECTS
The Tenant hereby irrevocably appoints the Landlord to be its
agent to store or dispose of any effects left by the Tenant
provided always that the Landlord shall allow the Tenant
access at reasonable times to remove any such effects on the
Premises for more than seven days after the termination of
this Lease (whether by effluxion of time or otherwise) on any
terms that the Landlord thinks fit and without the Landlord
being liable to the Tenant save to account for the net
proceeds of sale less the cost of storage (if any) and any
other expenses reasonably incurred by the
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Landlord and hereby agrees to indemnify the Landlord against
any liability incurred by the Landlord to any third party
whose property shall have been sold by the Landlord in the
mistaken belief held in good faith (which shall be presumed
unless the contrary be proved) that such property belonged to
the Tenant
7.10 LANDLORD'S LIABILITY
7.10.1 The Landlord shall not be liable to the Tenant in
respect of any failure of the Landlord to perform
any of the Landlord's obligations to the Tenant
under this Lease whether express or implied unless
and until the Tenant has notified the Landlord or
the Landlord otherwise has knowledge of the facts
giving rise to the failure and the Landlord has
failed within a reasonable time to remedy the same
7.10.2 Any person undertaking an obligation under or by
virtue of this Lease which is a landlord covenant
for the purposes of the 1995 Act does so only in
respect of the period of time during which the
reversion immediately expectant upon the
determination of the Term is vested in such person
and not further or otherwise
7.11 NO WAIVER
7.11.1 No demand for or receipt or acceptance of any part
of the rents hereby reserved or any payment on
account thereof shall operate as a waiver by the
Landlord of any right which the Landlord may have to
forfeit this Lease by reason of any breach of
covenant by the Tenant and the Tenant shall not in
any proceedings for forfeiture be entitled to rely
on any such demand receipt or acceptance as
aforesaid as a defence
7.11.2 The return to the Tenant of any rents or other
monies paid by banker's standing order or direct
debit as soon as reasonably practicable after
receipt shall be treated as a refusal by the
Landlord to accept the same and the Tenant shall not
in any proceedings for forfeiture be entitled to
rely on any such receipt as a defence
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7.12 JURISDICTION
7.12.1 This Lease is and shall be governed by and construed
in all respects in accordance with the laws of
England
7.12.2 The Tenant hereby submits to the non exclusive
jurisdiction of the High Court of Justice of England
in relation to any claim dispute or difference which
may arise hereunder and in relation to the
enforcement of any judgment rendered pursuant to any
such claim dispute or difference and for the purpose
of Order 10 Rule 3 of the Rules of the Supreme Court
of England (or any modification or re-enactment
thereof) the Tenant hereby irrevocably agrees that
any process or proceedings hereunder (whether of a
judicial or quasi judicial nature) may be served on
it by leaving a copy thereof either at the address
of any person registered with the Registrar of
Companies pursuant to Part XXIII of the Companies
Act 1985 (or any modification or re-enactment
thereof) as being resident in Great Britain and
authorised to accept on behalf of the Tenant service
of process and proceedings and any notices required
to be served on the Tenant or at the Premises
7.13 STATUS OF LEASE
For the purposes of the 1995 Act this Lease is a new tenancy
7.14 STAMP DUTY
It is hereby certified that there is no agreement for lease to
which this Lease gives effect
8. TENANT'S OPTIONS TO DETERMINE
8.1 If the Tenant shall not have exchanged and completed a lease
of the Additional Premises upon substantially the same terms
and conditions as contained in this Lease the Tenant shall be
entitled on giving not less than six months notice in writing
to the Landlord to terminate this Lease on [ ] 2003 ("First
Termination Date") and provided that up to the First
Termination Date the Tenant shall have paid the rents hereby
reserved this Lease shall absolutely cease and determine on
the First
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Termination Date without prejudice to any right or remedy of
the Landlord in respect of any antecedent breach by the Tenant
of the provisions of this Lease
8.2 The Tenant shall be entitled by giving not less than six
months notice in writing to the Landlord to terminate this
Lease on [ ] 2008 ("Second Termination Date") and provided
that up to the Second Termination Date the Tenant shall have
paid the rents hereby reserved this Lease shall absolutely
cease and determine on the Second Termination Date but without
prejudice to any right or remedy of the Landlord in respect of
any antecedent breach by the Tenant of the provisions of this
Lease
9. SURRENDER
9.1 If the Tenant shall have exchanged and completed a lease of
the Additional Premises on or before the third anniversary of
the date hereof upon substantially the same terms and
conditions as contained in this Lease the Tenant shall
(subject to the provisions of this Clause 9) be entitled by
giving not less than 6 months notice in writing to the
Landlord to surrender its interest in that part of the
Property shown hatched red on the Plan ("SURRENDERED
PREMISES") on the date specified in the said notice
("SURRENDER DATE").
9.2 The Tenant shall on the Surrender Date surrender all its
estate interest and rights in the Surrendered Premises by
executing and delivering to the Landlord a deed of surrender
(such deed to be in the form of the draft deed annexed hereto)
to the intent that the residue of the term granted by this
Lease shall in so far as it relates to the Surrendered
Premises merge and be extinguished in the reversion
immediately expectant on the term granted by this Lease.
9.3 The Landlord agrees that they will immediately accept the
surrender by executing and delivering to the Tenant a
counterpart of a deed in the form of the draft deed annexed
hereto.
9.4 With effect from the Surrender Date paragraph 3 of Part 2 of
Schedule 1 of this Lease shall be varied by the deletion of
the words "... the car parking spaces immediately to the front
of the Premises ..." and the substitution therefor of the
words "... 56 car parking spaces on the Estate from time to
time allocated to the
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Tenant ..." and save as thereby varied the Lease shall
continue in full force and effect
10. TENANT'S OPTION TO ACQUIRE REVERSIONARY LEASE
10.1 In this Clause 10 the following expressions (where the context
so admits) shall have the following meanings:-
10.1.1 "OPTION" means the option created by this Clause 10
10.1.2 "OPTION NOTICE" means a notice exercising the Option
duly served in accordance with Clause 10.3
10.1.3 "OPTION PERIOD" means the period commencing on 2008
and expiring on 2008
10.1.4 "GENERAL CONDITIONS" means the Law Society's General
Conditions of Sale (1984 Revisions)
10.1.5 "PURCHASE PRICE" means the price of the Premises to
be agreed or determined in accordance with Clause
10.4
10.1.6 "REVERSIONARY LEASE" means a lease of the Premises
in such form as the Landlord may require and which
shall contain such provisions and covenants binding
on the Tenant and their respective successors in
title as the Landlord shall properly require to
reflect:-
10.1.6.1 an ongoing service charge commitment
equivalent to that contained in this
Lease; and
10.1.6.2 such covenants easements rights exceptions
and reservations which the Landlord
considers are proper and necessary and/or
so as to reflect the rights exceptions and
reservations contained in this Lease
10.2 The Landlord hereby grants to the Tenant the Option to
purchase the Reversionary Lease of the Premises from the
Landlord for the Purchase Price
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10.3 The Option shall be exercisable by the Tenant serving on the
Landlord written notice to that effect at any time during the
Option Period (time to be of the essence)
10.4
10.4.1 The Purchase Price may be agreed by the Landlord and
the Tenant and both parties must use their
reasonable endeavours to reach such agreement
10.4.2 If agreement has not been reached within one month
from the service of the Option Notice then an
independent Surveyor may be appointed to determine
the value of the Reversionary Lease of the Premises
at the date of service of the Option Notice assuming
vacant possession or with the benefit of any
sub-tenancies (whichever shall produce the greater
value) the appointment to be made by agreement
between the parties or in the absence of agreement
by the President for the time being of the Royal
Institution of Chartered Surveyors or any other
person authorised by him to make appointments on his
behalf at the request of either the Landlord or the
Tenant
10.4.3 The determination of the independent Surveyor who
must act as an expert and not as an arbitrator is
both final and binding on the Landlord and the
Tenant and his fees and expenses including the cost
of his appointment must be borne equally by them.
10.5 Forthwith upon the service of the Option Notice there shall be
deemed to subsist an agreement for grant of the Reversionary
Lease of the Premises by the Landlord to the Tenant at the
Purchase Price on the terms and conditions hereinafter
contained
10.5.1 Completion of the grant of the Reversionary Lease by
the Landlord to the Tenant is to take place 30 days
after the ascertainment of the Purchase Price in
accordance with Clause 10.4
10.5.2 On completion the Tenant must pay to the Landlord
the Purchase Price plus VAT (if applicable at the
rate then in force) together with all rents and
other sums due and payable under this Lease up to
the date of completion
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10.5.3 The Landlord's title to the Premises is registered
(together with other land) with title absolute under
Title Number CE 115944 and CE 101581 and such title
shall be deduced in accordance with Section 110 of
the Land Registry Act 1925
10.5.4 The Reversionary Lease shall be granted subject to
and with the benefit of this Lease to the intent
that the same shall merge and be extinguished in the
reversion
10.5.5 The General Conditions shall be deemed to be
incorporated into the agreement so constituted so
far as they relate to a sale by private treaty and
are varied by and are not inconsistent with the
other provisions hereof and for the purposes of:-
10.5.5.1 GENERAL CONDITION 1(b)
The contract rate is 4% per annum above
the base lending rate from time to time of
Barclays Bank Plc
10.5.5.2 GENERAL CONDITION 21
The contractual completion date is the
completion date specified in Clause 10.5.1
10.5.5.3 GENERAL CONDITION 21(5)(a)
The latest time for payment of the money
due on the completion date is 1.00 p.m.
10.5.5.4 Completion shall take place at the offices
of the Landlord's solicitors or such other
place as the Landlord may reasonably
require and General Condition 21(1) shall
be varied accordingly
10.5.5.5 (Without prejudice to the right of the
Landlord to claim compensation and/or
interest) where the Tenant is in default
(as defined in General Condition 22(1)(b)
the apportionment
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day for the purpose of General Condition
19(1)(a) shall (if the Landlord so elects)
be the date of completion
10.5.5.6 General Conditions 4, 5(1), 12, 13, 14,
15, 16(1), 17(3), 21(2)(d) and 25 shall
not apply to this agreement
10.6 The Option is to be of no effect if the Tenant fails to
protect it by notice caution or other appropriate under the
Land Registration Act 1925 within one month from the date of
this document
10.7 The Landlord irrevocably appoints the Tenant as its attorney
for the purpose of ensuring that the contract that will result
from the exercise of the Option complies with the requirements
of Section 2 of the Law of Property (Miscellaneous Provisions)
Act 1989
10.8 If the Option shall not be duly exercised within the Option
Period this Clause 10 shall cease and determine and the Tenant
shall forthwith cancel any entry made in respect of the Option
in any register
SCHEDULE 1
PART 1
(PREMISES)
All those land and buildings situate at and known as Units A and D Sovereign
Park Brenda Road Hartlepool shown for the purpose of identification only edged
red on the Plan
PART 2
(EASEMENTS AND RIGHTS GRANTED)
1. The right for the Tenant and the occupiers of the Premises and all
others duly authorised by them in common with the Landlord and all
others having the like right at all times and for all purposes to pass
and repass with or without vehicles to and from the Premises over and
along the Access Road
2. The free and uninterrupted passing and running of water soil gas
telephone electricity telecommunications and all other services and
supplies from and to the Premises through all
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Conduits which are or may hereafter during the Term be in on under or
over the Estate and serve the Premises
3. The right to use the car parking spaces immediately to the front of the
Premises for the purpose only of the parking of motor cars belonging to
the Tenant or its employees with appropriate rights of access to and
from such car parking spaces provided that the position of the parking
spaces may be varied by the Landlord if so required
4. The right to use such service areas as the Landlord shall designate
from time to time for loading and unloading of goods to and from the
Premises
PART 3
(EXCEPTIONS AND RESERVATIONS)
Excepting and reserving in favour of the Landlord and its tenants agents and
licensees and those authorised by the Landlord and all other persons who now
have or may hereafter be granted similar rights:-
1. the full free and uninterrupted passage and running of water soil gas
telephone electricity telecommunication and all other services and
supplies of whatsoever nature from and to the adjoining or neighbouring
property of the Landlord through such of the Conduits serving such
adjoining or neighbouring property which are or may hereafter during
the Perpetuity Period be in on under or over the Premises and the right
of entry onto the Premises for the purpose of inspecting repairing
renewing relaying cleansing maintaining and connecting up to any such
existing or future Conduits
2. the right at reasonable times and upon reasonable notice (except in
cases of emergency) to enter and remain upon the Premises with all
necessary tools appliances and materials for the purpose of repairing
altering or rebuilding the adjoining or neighbouring property of the
Landlord
3. the right to erect or to consent hereafter to any person erecting a new
building or to alter any building for the time being on the adjoining
or neighbouring property of the Landlord in such manner as the Landlord
or the person or persons exercising such right may think fit and
notwithstanding that such alteration or erection may diminish the
access of light and air enjoyed by the Premises and the right to deal
with the adjoining or neighbouring property of the Landlord as it may
think fit
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4. the right to erect scaffolding for the purpose of repairing cleaning
rebuilding renewing or altering any buildings which now or may at any
time during the Term be on the adjoining or neighbouring property of
the Landlord notwithstanding that such scaffolding may restrict the
access to or enjoyment and use of the Premises
5. the right for the Landlord and those authorised by the Landlord to
enter the Premises for the purposes and in the manner mentioned in this
Lease
PART 4
(MATTERS TO WHICH THE PREMISES ARE SUBJECT)
The entries contained in the Property and Charges Register of Title Numbers
CE115944 CE132524 CE130512 CE147226 and CE147277 (excluding all mortgages and
other similar financial charges) insofar as the same relate to or affect the
Premises.
SCHEDULE 2
GUARANTEE PROVISIONS
1. That the Tenant will at all times during the period in respect of which
the Tenant is liable under the covenants herein contained pay the rents
reserved by this Lease on the days and in manner herein provided for
and will duly observe and perform all the covenants and conditions
contained in this Lease and on the part of the Tenant to be observed
and performed and that if the Tenant shall during such period default
in any respect to pay the said rents or any of them in the manner
aforesaid or to observe and perform the said covenants and conditions
or any of them the Guarantor will on demand fully observe perform and
discharge the same and without prejudice to the generality of the
foregoing the Guarantor hereby further covenants by way of primary
obligation and not merely liability as a guarantor or merely collateral
to that of the Tenant to pay and make good to the Landlord forthwith on
demand any losses costs damages and expenses occasioned to the Landlord
arising out of or by reason of any default of the Tenant in respect of
any of its obligations under the terms and provisions of this Lease
during the said period or in respect of any judgment or order made
against the Tenant during the said period and any neglect or
forbearance on the part of the Landlord in enforcing or giving time for
or other indulgence in respect of the observance or performance of any
of the said agreements provisions and conditions (other than a release
given under seal) and (subject to the
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provisions of the 1995 Act) any variation of the terms of this Lease
shall not release the Guarantor from its liability under the agreements
or guarantee on its part contained in this Lease
2. That if during such period as aforesaid:-
2.1 the Tenant shall go into liquidation and the liquidator
disclaims this Lease or
2.2 the Tenant is dissolved or struck off the register and the
Crown disclaims this Lease or
2.3 the Tenant ceases for any reason to be or to remain liable
under this Lease or to maintain its corporate existence
(otherwise than by merger consolidation or other similar
corporate transaction in which the surviving corporation
assumes or takes over all the liabilities of the Tenant under
this Lease) or
2.4 this Lease shall be forfeited or otherwise prematurely
determined
the Landlord may within six months following any such event by notice
in writing require the Guarantor to enter into a lease in the like form
as this Lease for the residue of the Contractual Term unexpired at the
date of such event (or which but for any such disclaimer forfeiture or
other event would have remained unexpired) but with the Guarantor as
tenant thereunder at the same rents and subject to the like covenants
provisions and conditions as are herein contained as a substitute in
all respects for the Tenant under this Lease and so that the Review
Date thereunder shall occur on the same date as the Review Date
hereunder shall occur or would but for any such disclaimer forfeiture
or other event have occurred (the said new lease and the rights and
liabilities thereunder to take effect as from the date of such
disclaimer forfeiture or other event) and the Guarantor shall thereupon
execute and deliver to the Landlord a counterpart of the new lease in
exchange for the relevant lease executed by the Landlord and
contemporaneously therewith the Guarantor as tenant shall pay the first
instalments of the rents due
3. That if the Landlord shall not require the Guarantor to take a new
lease the Guarantor shall nevertheless in addition and without
prejudice to the Guarantor's other obligations under this Lease upon
demand pay to the Landlord a sum equal to the rents and all other sums
that would have been payable under this Lease at the times and in the
manner at and in which the same would have been so payable in respect
of the period of twelve months from and including the date of
disclaimer or forfeiture or (if sooner) until the Landlord shall have
granted a lease of the Premises to a third party
48
<PAGE> 53
4. That the Guarantor shall be jointly and severally liable with the
Tenant (whether before or after any disclaimer by a liquidator or
trustee in bankruptcy) for the fulfilment of all the Tenant's covenants
conditions and other provisions contained in this Lease and the
Landlord in the enforcement of its rights may proceed against the
Guarantor as if the Guarantor was named as the Tenant in this Lease
5. That the Guarantor waives any right to require the Landlord to proceed
against the Tenant or to pursue any other remedy of any kind which may
be available to the Landlord before proceeding against the Guarantor
6. That the Guarantor shall not claim in any liquidation bankruptcy
administration receivership composition or arrangement of the Tenant in
competition with the Landlord and shall remit to the Landlord the
proceeds of all judgments and all distributions it may receive from any
liquidator trustee in bankruptcy administrator administrative receiver
or supervisor of the Tenant and shall hold for the sole benefit of the
Landlord all security and rights the Guarantor may have over assets of
the Tenant while any liabilities of the Tenant or the Guarantor to the
Landlord remain outstanding
7. That this guarantee shall subsist for the benefit of the successors and
assigns of the Landlord under this Lease without the necessity for any
assignment of it
SCHEDULE 3
REQUIREMENTS OF AUTHORISED GUARANTEE AGREEMENT
1. The agreement shall be prepared by the Landlord's solicitors at the
expense of the Tenant and shall be executed and take effect as a deed
2. The agreement shall contain a clause to the effect that insofar as any
provision of the agreement would prevent it being an authorised
guarantee agreement within the meaning of the 1995 Act the agreement
shall be read and construed and shall take effect as though that
provision had not been included
3. In the agreement the Tenant shall covenant with the Landlord for the
benefit of the Landlord and its successors in title and assigns the
owners for the time being of the reversion immediately expectant upon
the determination of the Term and those entitled to the benefit of the
agreement by virtue of the 1995 Act that:-
49
<PAGE> 54
3.1 at all times during the period ("RELEVANT PERIOD") beginning
with the date on which the assignment of this Lease to the
proposed assignee ("ASSIGNEE") takes effect and ending when
the Assignee is released by virtue of Section 5 of the 1995
Act from observance and performance thereof the Assignee will
duly observe and perform all the terms conditions and
covenants which by reference to the tenancy created by this
Lease are tenant covenants within the meaning of the 1995 Act
("RELEVANT COVENANTS")
3.2 if the Assignee shall default in any respect duly to observe
and perform the Relevant Covenants or any of them the Tenant
will on demand fully observe perform and discharge the same
3.3 if the Assignee (being a corporation) shall go into
liquidation and the liquidator disclaims this Lease or is
dissolved or struck off the register and the Crown disclaims
this Lease or (being an individual) shall become bankrupt and
the trustee in bankruptcy disclaims this Lease the Landlord
may within six months following any such event by notice in
writing require the Tenant to enter into a lease in the like
form as this Lease for the residue of the Contractual Term
unexpired at the date of such event (or which but for any such
disclaimer would have remained unexpired) but with the Tenant
as tenant thereunder at the same rents and subject to the like
covenants provisions and conditions as are applicable thereto
at the date of such event as a substitute in all respects for
the Assignee and so that every Review Date thereunder shall
occur on the same date as every Review Date under this Lease
shall occur or would but for any such disclaimer have occurred
(the said new lease and the rights and liabilities thereunder
to take effect as from the date of such disclaimer) and the
Tenant shall thereupon execute and deliver to the Landlord a
counterpart of the new lease in exchange for the relevant
lease executed by the Landlord and contemporaneously therewith
the Tenant as tenant under the new lease shall pay the first
instalments of the rents due thereunder and the Landlord's
solicitors proper and reasonable costs of and in connection
with the preparation and completion of such new lease
4. Without prejudice to the generality of the foregoing the Tenant shall
further covenant with the Landlord by way of primary obligation and not
merely as a guarantor of or collateral to the liability of the Assignee
to pay and make good to the Landlord forthwith on demand any losses
costs damages and expenses occasioned to the Landlord arising out of or
by reason of any
50
<PAGE> 55
default of the Assignee in respect of any of its obligations under the
Relevant Covenants during the Relevant Period
5. The agreement shall contain an agreement and declaration to the effect
that any neglect or forbearance on the part of the Landlord in
enforcing or giving time for or other indulgence in respect of the
observance or performance of any of the Relevant Covenants (other than
a release given under seal) and (subject to the provisions of the 1995
Act) any variation of the terms of the Lease shall not release the
Tenant from its liability under the covenants or guarantee to be
entered into by it in the agreement
SCHEDULE 4
PART 1
("SERVICE CHARGE")
1. In this Schedule the following expressions shall have the following
meanings:-
1.1 "SERVICE CHARGE" means the due proportion of the Service Costs
which is attributable from time to time to the Premises in
accordance with this Schedule
1.2 "SERVICE CHARGE PERIOD" means a period of 12 months ending on
31st December in any year or such other period as the Landlord
may at its discretion from time to time determine and notify
in writing to the Tenant
1.3 "SERVICE COSTS" means the total costs in any Service Charge
Period beginning or ending during the Term of providing the
Services and defraying the costs and expenses relating and
incidental thereto in accordance with this Schedule
1.4 "SERVICES" means the services referred to in part 2 of this
Schedule or such of them as shall from time to time be
provided or undertaken by the Landlord
2. In calculating the due proportion of the Service Costs attributable to
the Premises the Landlord shall have regard to the relationship between
the total floor area of the Premises and the total floor area of the
Estate let or capable of being let by the Landlord but the Landlord
shall be entitled to adopt such alternative fair and reasonable method
of computation as it may decide and if having regard to the nature of
expenditure incurred or to the nature of the premises in or forming
part of the Estate benefited thereby or otherwise it shall be
inappropriate to apportion
51
<PAGE> 56
the Service Costs or any item therein on such basis as aforesaid the
Landlord shall be at liberty in its discretion to adopt such other
method of calculation of the due proportion of the Service Costs to be
attributed to the Premises as shall be fair and reasonable in the
circumstances (including if appropriate attributing the whole of any
such expenditure or item of expenditure to the Premises)
3. The Service Charge shall be paid in manner following:-
3.1 The Landlord shall be entitled to estimate the amount of the
Service Charge for any Service Charge Period and if the
Landlord so requires the Tenant shall pay in advance on
account of the Service Charge for that Service Charge Period
the amount provisionally so estimated by the Landlord by equal
advance payments on each of the Rent Days during the Service
Charge Period the first such payment to be made on the date of
this Lease being an apportioned sum in respect of the period
from the commencement date of the Term until the day preceding
the Rent Day next following the date of this Lease
3.2 The Service Charge shall be deemed to accrue on a day to day
basis in order to ascertain the yearly rate thereof and for
the purpose of apportionment in respect of any periods of
other than one year
3.3 The Landlord shall as soon as practicable after the end of
each Service Charge Period prepare or cause to be prepared and
submitted to the Tenant a statement showing the Service Costs
and the Service Charge for the Service Charge Period then
ended and upon such statement being certified by the Landlord
the same shall be final and binding on the Tenant
3.4 If the amount of the Service Charge for the Service Charge
Period shall exceed the aggregate of the amounts paid on
account thereof for that period the amount of the excess shall
be due forthwith on demand from the Tenant but if it shall be
less the amount of the overpayment shall be credited to the
Tenant against the next quarterly payment of rent and/or
Service Charge or (if the Term shall have come to an end)
shall be repaid to the Tenant
3.5 If the Landlord shall make any change to a Service Charge
Period such adjustments and apportionments shall be made as
shall be fair and reasonable for the purpose of computing the
Service Charge
52
<PAGE> 57
3.6 The provisions of this paragraph shall continue to apply
notwithstanding the expiry or sooner determination of this
Lease in respect of any Service Charge Period then current
3.7 If the Landlord shall incur expenditure forming part of the
Service Costs which either is in respect of a matter which has
not been taken into account in arriving at the provisional
assessment of the Service Charge for that period or is of an
amount materially greater than has been allowed in arriving at
such provisional assessment the Landlord shall be entitled to
recover from the Tenant the due proportion of the whole of
such expenditure on the Rent Day next following such
expenditure being incurred by the Landlord
4. In calculating the Service Costs:-
4.1 the Landlord may include all VAT at the applicable rate
incurred or paid by the Landlord in respect of any expenditure
in connection with the Services or any of them save to the
extent that the same is recovered by the Landlord as input tax
4.2 the Landlord may include all costs incurred in taking any
steps deemed desirable or expedient by the Landlord for
complying with or making any representations against or
otherwise contesting the incidence of the provisions of any
legislation or orders or statutory requirements thereunder
concerning town planning compulsory purchase public health
highways streets drainage or other matters relating to or
allegedly relating to the Estate for which no tenant of the
Estate is directly liable under any lease of any part of the
Estate
5. The Landlord shall be entitled to include in the Service Costs a
reasonable fee for itself or the cost of employing managing agents for
the carrying out and provision of the Services in accordance with this
Schedule
6. The Tenant shall not be entitled to object to the Service Charge or any
item comprised in the Service Costs or otherwise on any of the
following grounds
6.1 the inclusion in a subsequent Service Charge Period of any
item of expenditure or liability omitted from the Service
Costs for any preceding Service Charge Period
53
<PAGE> 58
6.2 that any item of the Service Costs might have been provided or
performed at a lower cost provided always the Landlord shall
have acted in accordance with the principles good estate
management
6.3 disagreement with any estimate of future expenditure for which
the Landlord requires to make provision so long as the
Landlord acts reasonably and in good faith and in the absence
of manifest error
6.4 the manner in which the Landlord exercises its discretion in
providing the Services so long as the Landlord acts in good
faith and in accordance with the principles of good estate
management
6.5 the employment of managing agents or contractors to carry out
and provide on the Landlord's behalf the Services in
accordance with this Schedule
PART 2
("SERVICES")
1. The costs of and incidental to the installation inspection repair
maintenance renewal lighting (including the installation of new
lighting) and cleaning of the Estate (including without prejudice to
the generality of the foregoing all roads car parks loading bays party
walls party structures party fences walls fences signs stairways paths
pavements yards gardens landscaped areas open spaces the Conduits air
conditioning equipment sprinkler systems fire alarms smoke detectors
lightning protectors fire fighting equipment hoist cradles gantries
generators and other plant machinery and equipment in or about the
Estate) and all other things the use of which is common to the Premises
and other premises near or adjoining thereto (whether or not under the
ownership or control of the Landlord) and including (for the avoidance
of doubt) the Access Road.
2. Insuring the Landlord against property owners liability third party
liability and employers liability in respect of the Estate and such
other risks perils and contingencies as the Landlord in its absolute
discretion shall from time to time deem necessary or expedient
3. Discharging all charges assessments and outgoings (including meter
charges) for water electricity fuel telephone and public and other
statutory utilities consumed on the Estate or used in connection with
the provision of any of the services referred to in this part of this
Schedule
54
<PAGE> 59
4. Paying any existing or future taxes rates charges duties assessments
impositions and outgoings whatsoever in respect of the Estate
5. Collecting and disposing of normal refuse from the Estate (including
those parts thereof as are let or are capable of being let) and the
provision repair maintenance and renewal of plant and equipment for the
collection treatment packaging or disposing of refuse
6. Providing operating maintaining repairing renewing and replacing such
security systems for the Estate as the Landlord shall in its absolute
discretion from time to time determine
7. Providing maintaining replacing and renewing any notice boards or
direction signs and the like on the Estate
8. Providing and maintaining (at the Landlord's absolute discretion)
plants shrubs trees garden or grassed areas or landscaped areas and
floral decorations on the Estate and keeping the same properly
maintained and cultivated
9. Employing such staff and personnel as the Landlord shall think fit for
the management of the Estate (including without prejudice to the
generality of the foregoing the provision of cleaning security and
horticultural services) and so that the costs of such employment shall
include not only all such direct costs incurred but also the provision
of uniforms the payment of national insurance contributions and other
government levies by reference to employment of personnel the provision
of pensions and payment of training and industrial levies and
redundancy payments and any other expenses ancillary to the employment
of personnel in connection with the provision of these services
10. Providing repairing maintaining renewing and replacing such plant
machinery equipment and materials as the Landlord may reasonably
require for the proper provision or supply of the services from time to
time provided or supplied in accordance with this Schedule
11. Employing and paying the fees of any agents retained by the Landlord to
manage the Estate and collect the rents thereof (including the
preparation of accounts in relation to the Service Charge) and the fees
and charges of any accountant surveyor or other professional adviser
employed to certify any matter or thing requiring to be certified for
the purpose of any of the provisions of this Schedule
55
<PAGE> 60
12. "DELETED"
13. Such other services as the Landlord may reasonably require for the
benefit and more efficient management use and promotion of the Estate
and the comfort and convenience of the generality of the tenants on the
Estate
( EXECUTED (but not delivered until the
( date hereof) as a deed by Spencer
( Holdings Plc by the affixing of its
( Common Seal in the presence of:-
/s/ James Spencer
-------------------------------------
Director
/s/ Kate Spencer
-------------------------------------
Secretary
( EXECUTED (but not delivered until the
( date hereof) as a deed by StarTek Europe
( Limited by the affixing of its Common
( Seal in the presence of:-
/s/ Michael W. Morgan
-------------------------------------
President
/s/ Dennis M. Swenson
-------------------------------------
Secretary
56
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE STARTEK,
INC. CONDENSED CONSOLIDATED BALANCE SHEET (UNAUDITED) AS OF JUNE 30, 1999 AND
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS (UNAUDITED) FOR THE SIX MONTHS
ENDED JUNE 30, 1999 INCLUDED IN STARTEK, INC'S FORM 10-Q FOR THE THREE MONTHS
ENDED JUNE 30, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> US
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> JUN-30-1999
<EXCHANGE-RATE> 1
<CASH> 14,295
<SECURITIES> 27,374
<RECEIVABLES> 14,000
<ALLOWANCES> 622
<INVENTORY> 1,700
<CURRENT-ASSETS> 58,624
<PP&E> 30,664
<DEPRECIATION> 9,699
<TOTAL-ASSETS> 79,667
<CURRENT-LIABILITIES> 16,859
<BONDS> 2,796
0
0
<COMMON> 138
<OTHER-SE> 59,322
<TOTAL-LIABILITY-AND-EQUITY> 79,667
<SALES> 0
<TOTAL-REVENUES> 86,573
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 70,380
<LOSS-PROVISION> 237
<INTEREST-EXPENSE> 141
<INCOME-PRETAX> 7,832
<INCOME-TAX> 2,915
<INCOME-CONTINUING> 4,917
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4,917
<EPS-BASIC> 0.36
<EPS-DILUTED> 0.36
</TABLE>
