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FORM 10-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
/x/ Annual report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the fiscal year ended March 31, 1998.
/ / Transition report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 for the transition period from
to .
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COMMISSION FILE NUMBER: 0-15352NY
US SERVIS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 22-2467332
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
220 DAVIDSON AVENUE, SOMERSET, NEW JERSEY 08873
(Address and telephone number of the of the
registrant's principal executive office)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (732) 764-9898
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: COMMON STOCK,
$.01 PAR VALUE
(TITLE OF CLASS)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K. [ ]
At June 19, 1998, the aggregate market value of the voting stock of the
registrant held by non-affiliates was approximately $8.4 million.
At June 19, 1998, the registrant had 6,355,683 outstanding shares of
Common Stock, par value $0.01 per share, 1,500,000 shares of Series A
Convertible Preferred Stock, par value $0.01 per share, and 1,000,000 shares
of Series B Convertible Preferred Stock, par value $0.01 per share.
DOCUMENTS INCORPORATED BY REFERENCE
None.
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CROSS REFERENCE SHEET
AND
TABLE OF CONTENTS
PAGE NUMBER
OR REFERENCE
PART I
Item 1 -- Business. . . . . . . . . . . . . . . . . . . . . . . . . 1
Item 2 -- Properties. . . . . . . . . . . . . . . . . . . . . . . . 13
Item 3 -- Legal Proceedings . . . . . . . . . . . . . . . . . . . . 13
Item 4 -- Submission of Matters to a Vote of Security Holders . . . 13
PART II
Item 5 -- Market for the Company's Common Equity and Related
Stockholder Matters. . . . . . . . . . . . . . . . . . . . . . 14
Item 6 -- Selected Financial Data . . . . . . . . . . . . . . . . . 15
Item 7 -- Management's Discussion of Financial Results. . . . . . . 16
Item 8 -- Financial Statements and Schedules. . . . . . . . . . . . 19
Item 9 -- Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure . . . . . . . . . . . . . 19
PART III
Item 10 -- Directors and Executive Officers of the Company. . . . . 20
Item 11 -- Executive Compensation . . . . . . . . . . . . . . . . . 23
Item 12 -- Security Ownership of Certain Beneficial Owners and
Management . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Item 13 -- Certain Relationships and Related Transactions . . . . . 28
PART IV
Item 14 - Exhibits, Financial Statement Schedules and Reports
on Form 8-K. . . . . . . . . . . . . . . . . . . . . . . . . . 29
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PART I
ITEM 1 -- BUSINESS
COMPANY OVERVIEW
US Servis, Inc., together with its subsidiaries ("US Servis" or the
"Company"), is a management services company that provides outsourced
billing, accounts receivable and other business and information management
services to physicians and physician networks, hospital business offices, and
ambulatory care centers. The Company's primary market is Integrated Delivery
Systems ("IDS"). As providers (physicians and hospitals) consolidate into
IDSs, encounter more competition and higher managed care penetration and
experience increased pressure to provide more services with fewer resources,
the Company's management believes that the managers of these systems will
have sound business reasons to outsource some or all of their business
management activities and contract with a management services company such as
US Servis.
COMPANY MISSION
The Company's mission is to provide superior, cost-effective business
and information management services that support its customers' efforts to
improve their strategic position and financial performance and relieve them
of administrative burdens so they can focus on network development and the
efficient delivery of healthcare services.
COMPANY GOAL
The Company's primary goal is to develop a leadership position in the
healthcare business management services industry. Management believes this
goal will be achieved through internal growth aided by strategic alliances
with companies and organizations that have leadership positions in the
healthcare services and information systems market. The achievement of these
goals will allow the Company to develop a network of regional service centers
capable of providing high quality, cost effective accounts receivable and
other business and information management services to the Company's clients.
The Company's development of its service center in central New Jersey to
support several hospital business offices and a major northern New Jersey
physician faculty practice plan and its service center in Denver, Colorado,
where the Company manages a major IDS's physician network, are examples of
the Company's success in establishing regional service centers to provide
accounts receivable and other business management services to physicians,
physician organizations, and hospitals associated with Integrated Delivery
Systems.
KEY DEVELOPMENTS IN FISCAL 1998
Key developments during Fiscal 1998 include:
(a) RETURN TO PROFITABILITY For Fiscal 1998, net income was $728,000 as
compared to a net loss of $3,039,000 for the prior fiscal year. See
"Item 7-- Management's Discussion of Financial Results" for a more
complete discussion of the financial performance of the Company for
Fiscal 1998.
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(b) RESOLUTION OF ALL ISSUES WITH METROPLUS During Fiscal 1997, the
Company experienced material difficulties at its largest client,
MetroPlus. MetroPlus, a public health HMO serving the New York City
Medicaid population, was the Company's only HMO client. During Fiscal
1998, the Company filed suit to enjoin MetroPlus from terminating its
contract in violation of its terms and for payment under the contract.
In November, 1997, this lawsuit, together with a related lawsuit by a
subcontractor of the Company, was completely resolved. MetroPlus
agreed to pay the Company all sums due under the contract and the
parties agreed to a termination of the contract between them as of
February 28, 1998. Since the date of settlement, all litigation
relating to the MetroPlus dispute has been dismissed, the Company has
completed all tasks for MetroPlus under its contract and made all
necessary payments under its subcontracts, and MetroPlus has made all
necessary payments to the Company. During Fiscal 1998, MetroPlus
accounted for 19.4% of the Company's revenues.
INDUSTRY OVERVIEW
The United States Healthcare Financing Administration ("HCFA") estimated
healthcare expenditures in the United States for 1996 at $1 trillion,
representing 14% of the Gross Domestic Product ("GDP"), an increase from $700
billion, or 12% of GDP, in 1990. In 1996, expenditures for hospital care
totaled $359 billion and expenditures for physician services were $202
billion. In response to the pressure being placed on physicians and hospitals
to improve access and stabilize costs, providers have moved more and more of
the focus of healthcare out of the institutional, inpatient setting into less
costly alternative sites that include physicians' offices,
ambulatory/outpatient centers and alternative care sites. Based on
information released by the American Hospital Association, between 1980 and
1996, the number of hospital admissions declined by 14% while the number of
hospital outpatient visits increased from 263 million to 505 million.
These trends, together with increased penetration of managed care
organizations and other pre-paid health plans, have made it increasingly
difficult for physicians, hospitals, hospital outpatient departments and free
standing ambulatory care centers to manage their billing and accounts
receivable collection activities.
Healthcare providers receive payment for medical services from the
patients they serve and a variety of third party payors, including employers,
private insurance companies, the Medicare program and state Medicaid
programs. Healthcare providers are under increasing pressure to accept the
assignment of insurance benefits from their patients and assume the primary
responsibility for obtaining payment from third party payors. The task of
collecting these third party payments is frequently made more difficult by
the need to submit payor specific claims forms, secure pre-approval from the
payor before care is provided and reconcile payments to amounts negotiated in
provider agreements and submitted claims.
The Company's management believes that shifts in the structure of the
healthcare delivery system, efforts to optimize revenue, convert accounts
receivable to cash more quickly, and more effectively manage the business of
healthcare have increased the demand for the types of services the Company
offers. The Company's management also believes that the changes currently
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underway in today's healthcare environment, including healthcare reform
initiatives, create an opportunity for the Company to expand its scope of
services and the number of clients served.
PHYSICIAN BUSINESS MANAGEMENT SERVICES
The market for business and practice management services to hospital
based physicians and certain sub-specialists is well established. These
physicians have historically been willing to utilize the services of outside
contractors to manage their billing and accounts receivable management
activities and in many cases all of the non-clinical, administrative
activities of their practices. Based on American Medical Association data,
management estimates that there are currently approximately 362,000 hospital
based physicians practicing in the United States.
Due to the size and financial characteristics of their practices,
primary care physicians (i.e., family practitioners, general internists,
pediatricians and obstetrician/gynecologists) have historically not been
significant users of contract business management services. Management
believes, however, that as primary care physicians aggregate into larger
practice groups and more administrative responsibilities are placed on them
by managed care companies, they will increasingly utilize practice
management, billing and accounts receivable management services to optimize
their revenues and minimize the non-clinical costs characteristics of their
practices. Based on American Medical Association data, management estimates
that there are currently approximately 300,000 primary care physicians
practicing in the United States.
Estimates provided by industry analysts indicate that the 50 largest
physician practice management companies accounted for less than 10% of the
total amount spent on non-clinical administrative activities.
HOSPITAL BILLING AND ACCOUNTS RECEIVABLE MANAGEMENT SERVICES
Hospitals and free standing ambulatory care centers have historically
relied upon their own personnel and in-house or turnkey software systems to
manage their billing and account receivable activities. Because the
healthcare industry has had a historical focus on inpatient care, the
policies, procedures and information systems developed to support patient
registration, scheduling, billing and accounts receivable management
activities have historically been designed to meet the needs of inpatient
billing and accounts receivable management. As hospitals experience
increased levels of managed care penetration and as the volume of outpatient
activity increases (in the outpatient setting the number of transactions is
relatively high and the dollar volume per transaction is relatively low),
hospitals and free standing ambulatory care centers have found it
increasingly difficult to manage their workloads and efficiently convert
their accounts receivables to cash. Management believes that the trend
towards more outpatient activity presents the Company with a unique
opportunity to build on its base of expertise and increase the number of
clients served. Management further believes that the business of providing
billing and accounts receivable management services to hospital business
offices and free standing ambulatory care centers is relatively new, and that
the demand for such services will increase and that the Company's core
competencies will provide opportunities to expand its contract management
activities into managing other areas of the business office, such as
registration and billing and accounts receivable management for inpatients.
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REGULATION
Billing and collection activities are governed by numerous Federal and
state civil and criminal laws. In general, these laws provide for various
fines, penalties, damages and assessments and sanctions for violations,
including the possible exclusion from Medicare, state Medicaid and commercial
payment programs.
Physicians and hospitals are permitted to assign Medicare claims to a
contract business management services provider under certain limited
circumstances as outlined in Medicare regulations in the Medicare Carrier's
Manual. These regulations dictate that a contract business management
services company that prepares and sends bills for a hospital or physician
not receive and negotiate checks made payable to the provider or violate the
restrictions provided with regard to the assignment of Medicare claims.
Management believes that its practices do not violate the restrictions on
assignment of Medicare claims. The Company bills only in the name of the
medical provider (its client). Checks and payments for Medicare services are
made payable to the medical provider.
A business management services provider's submission of claims for
services or procedures that were not actually provided may lead to civil
monetary penalties, criminal fines, imprisonment and/or exclusion from
certain state and Federally funded programs. The Federal False Claims Act
allows a private person to bring suit alleging false Medicare and/or Medicaid
claims and to participate in as much as 30% of the amounts paid to the
government in damages and civil penalties. Such acts increase the likelihood
that providers of medical services and providers of business management
services, (i.e., the Company), may be subject to governmental investigations
and/or false claims. Some states also have laws that provide for private
persons to participate in amounts paid to state government for damages and
civil penalties if the private person assisted in the identification of
fraudulent billing activities.
GOVERNMENTAL CONSTRAINTS AND HEALTHCARE REFORM
In recent years, the Federal government has placed increased scrutiny on
the billing and accounts receivable collection activities of healthcare
providers. Much of this scrutiny has been directed toward fraudulent billing
practices.
The Health Insurance Portability and Accounting Act of 1996, Pub. L. No.
104-191, 1996 U.S.C.A.C.A.N.(110 Stat 1936) includes an expansion of certain
fraud and abuse provisions such as expanding the application of Medicare and
Medicaid fraud penalties and creating additional criminal offenses relating
to "healthcare benefit programs" which are defined as both public and private
companies.
During the 1995 and 1996 sessions of the United States Congress,
healthcare budgeting and funding mechanisms received considerable attention.
The 1995 Annual Report of the Board of Trustees of the Federal Hospital
Insurance Program projected that the Medicare "trust fund" is likely to
become insolvent by the year 2002 if current growth rates continue. Federal
and state expenditures under the Medicaid program are also expected to
increase significantly over the next seven years. Although broad scale
proposals by the Clinton Administration to reduce the rate of increase in
Federally sponsored healthcare insurance programs were not passed during the
1996
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legislative year, certain legislative changes were made during the 1997
legislative year and additional legislation appears likely. The Company
believes that these changes may impact the methodologies used and amounts
hospitals and physicians are reimbursed for providing medical services and
could provide incentives for Medicare and Medicaid beneficiaries to join
health maintenance organizations and other managed care plans. The Company
cannot predict the impact such legislation, if enacted, would have on its
operations.
A number of states in which the Company has operations have either
adopted or are considering the adoption of healthcare reform initiates to
incentivize and/or require Medicaid recipients to join health maintenance
organizations. Such initiatives tend to cause delays and/or reductions in the
amounts hospitals and physicians are reimbursed for providing medical
services. These reductions and/or delays could have an impact on the
Company's revenues.
COMPANY'S PRINCIPAL MARKETS
The Company's principal markets are physicians and hospitals.
PHYSICIAN BUSINESS MANAGEMENT SERVICES. Physician business management
services are services that address the non-clinical, administrative aspects
of a medical practice. The Company focuses on providing these services
primarily to physicians affiliated with or owned by Integrated Delivery
Systems. Activities under a physician business management agreement can be
as comprehensive as to include the recruitment, training, supervision, and
evaluation of the billing/accounts receivable staff, billing and accounts
receivable management, financial management and reporting, practice
development and assistance in contract negotiations with payors, and the
development and implementation of management information systems.
The Company provides billing, accounts receivable management,
information systems, and other business management services to approximately
3,400 physicians. The Company's Fiscal 1998 revenues associated with these
services were $12.1 million. These services are provided by Company
personnel working at business service centers located in central and southern
New Jersey, suburban Chicago, Illinois and Denver, Colorado. Billing,
accounts receivable management, and information systems management are core
competencies of the Company and represent the majority of the Company's
physician business management revenues. The Company's physician clients
cover a broad range of medical specialists and sub-specialties, including
hospital based physicians (anesthesiologists, radiologists, pathologists,
emergency room physicians, etc.), office based specialties (cardiologists,
surgeons, etc.) and primary care physicians (general practitioners and family
physicians, internists, pediatricians and obstetricians/gynecologists).
The Company's management believes physicians are becoming increasingly
sensitive to the business aspects of medical practice, and are looking for
managerial expertise and technology to help manage the complexities of their
practices. Management believes that the Company's size, commitment to
superior client service and expertise in critical areas, such as the use of
management information systems, billing, accounts receivable and practice
management, give the Company a competitive advantage over "in-house"
alternatives, small billing and collection companies and large, highly
centralized national companies that also offer these services to physicians
and physician networks.
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HOSPITAL BUSINESS OFFICE MANAGEMENT The Company also provides business
management and information systems to hospital business offices and free
standing ambulatory care centers. These services are provided under a
"contract management model." Under this model, a provider of inpatient or
outpatient healthcare services outsources all or a portion of the activities
associated with its business offices to the Company. Traditionally,
healthcare providers have embraced contract management for certain "hotel"
services (dietary, housekeeping, maintenance) associated with their
operations. More recently, hospital boards and executives have embraced the
"outsourcing" of activities as diverse as information systems management
(facility management), billing and accounts receivable management, clinical
engineering, and certain clinical services including laboratory, radiology,
physical medicine and rehabilitation. In a business or contract management
engagement, the Company interfaces its or another software provider's
proprietary software to the client hospital's information system, hires and
manages the billing and accounts receivable management staff and directs the
client hospital's cash collection activities. The Company's Fiscal 1998
revenues attributed to hospital and ambulatory billing and accounts
receivable management were $7.5 million.
COMPANY'S PRINCIPAL PRODUCTS
US Servis' core business is the outsourcing of billing, accounts
receivable and information management services to the physicians, hospitals
and free standing ambulatory care centers affiliated or associated with
Integrated Delivery Systems.
The Company's primary focus is the large physician networks that are
aggregating around hospital sponsored Integrated Delivery Systems. In some
situations, IDS sponsored MSOs serve as the aggregator. MSOs typically
provide administrative services (i.e., registration, scheduling, billing,
accounts receivable collections, financial management and information
systems) to office based physicians located in clinics or free standing
offices located throughout the IDS' service area. Occasionally, IDSs have
sponsored or acquired large multi-specialty group practices. These
multi-specialty group practices typically have Central Billing Offices
("CBOs") that need to be integrated into the IDS' administrative
organization. Academic medical centers, particularly those associated with
medical schools, frequently have associated or affiliated Faculty Practice
Plans ("FPPs"). FPPs are essentially large multi-specialty group practices
composed of members of the teaching faculty of a medical school. Integrated
Delivery Systems associated with academic medical centers recognize the
benefits of establishing CBOs for their Faculty Practice Plans. The creation
of a FPP-CBO is frequently the first step in the creation of an integrated
contracting entity that affords the FPP the opportunity to negotiate more
comprehensive at-risk payment agreements with managed care organizations. The
Company, through its experience and expertise, is in the business of
developing and managing the CBO activities of the physician networks (i.e.,
MSOs, multi-specialty group practices and/or FPPs) affiliated with IDSs.
During Fiscal 1998, the Company's development and management of the CBO
activities of the physician networks represented approximately 25.2% ($7.0
million) of the Company's revenues.
The creation of CBOs to service the physicians associated with an IDS
and/or a multi-hospital system is a large, complex undertaking. As part of
its core business, the Company provides implementation services designed to
manage the development of a CBO or the integration of new acquired physician
practices into an existing CBO. These services include the management and
the installation of the CBO's legacy billing and accounts receivable
information system, the introduction of standardized policies and procedures,
the training of the staff and the conversion and/or collection
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of the "old accounts receivable". The Company believes that these
implementation services will be an increasingly important part of its
revenues.
Company management expects that its strategic alliance with IDX Systems
Corporation ("IDX") will be beneficial to the Company in the physician
network market. It is the understanding of Company management that IDX
software is favored by many of the country's larger physician networks and
FFPs and many of these organizations may be candidates for outsourcing their
billing and accounts receivable activities to the Company.
In addition to managing the central billing offices affiliated with
IDSs, the Company is a provider of billing and accounts receivable management
services to hospital based physicians. Hospital based physician
(anesthesiologists, radiologists, pathologists, emergency room physicians)
billing and accounts receivable services are provided through the Company's
suburban Chicago, Illinois service center. During Fiscal 1998, billing and
accounts receivable services provided to hospital based physicians
represented 12.7% ($3.5 million) of the Company's revenues.
The Company also provides outsourced billing and accounts receivable
management services to hospitals. This service represented 27.0% ($7.5
million) of the Company's Fiscal 1998 revenues. Outsourced billing and
accounts receivable management services to hospitals encompass both inpatient
and outpatient services and are delivered through a business model that
typically centralizes the majority of the billing and accounts receivable
management staff at the Company's processing center in Somerset, New Jersey
where economies of scale associated with critical mass can be attained.
In addition to its core business activities, the Company provides remote
computing services ("RCS") to hospitals. These RCS services provide clients
with access to the Company's proprietary billing and accounts receivable
software through on-line linkage to the Company's central New Jersey data
center. The Company also provides implementation services associated with
the installation of the MedicaLogic Automated Medical Records System and
support services associated with the MedTake Clinical Information System,
Infinity and Infinity X. During Fiscal 1998, these activities including
related equipment sales and licenses, represented approximately $4.0 million
of the Company's revenues.
Following the Company's dispute with MetroPlus, it has discontinued
pursuing business from HMOs and other prepaid health programs. In Fiscal
1998, revenues from the Company's contract with MetroPlus were $5.4 million,
19.4% of total revenues.
COMPANY'S RELATIONSHIPS WITH CLIENTS
The Company's portfolio of business management services includes billing
and accounts receivable management, claims management, and related consulting
services. With regard to billing and accounts receivable management
services, the Company typically enters into contracts with its clients under
contingent fee arrangements that are based upon a percentage of cash
collected with performance bonuses paid to the Company upon the attainment of
certain performance objectives. The Company typically bills clients on a
monthly basis for services provided during the immediately preceding month.
The Company's fees for hospital inpatient and outpatient contract management
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and physician billing and accounts receivable management services range from
2% to 14% of collections depending upon the size of the client and the
financial sponsorship of patients serviced.
In performing billing and accounts receivable management services for
its clients, the Company obtains relevant demographic, financial and clinical
information from its clients on paper forms, magnetic tape and through direct
interfaces with client in-house information computer systems. Demographic
and medical records information is then entered (or transferred) into the
billing and accounts receivable management system. The system then generates
claims, follow-up notices and other related correspondence for patients and
third party payors.
In some situations the Company utilizes physician practice management
and hospital inpatient billing and accounts receivable management systems
that have been developed by other companies and subsequently leased or
purchased by the Company's clients.
The Company assigns an account manager to each major business management
services client. The account manager is generally an experienced accounts
receivable professional who manages the Company's business management
activities, including initial billing, monitoring third party payors'
responses to claims, the collection of amounts due under claims, the receipt
of such payment amounts by the client and the collection of co-payments or
amounts due on account of uncovered services. The Company, working through
the account manager, provides clients with periodic status reports and
analyses of the Company's contract management performance and uses these
reports to conduct periodic meetings with client management. In addition to
billing and accounts receivable management, the Company also provides
consulting, accounting, financial reporting, contract/payor negotiation and
information management services.
INFORMATION SYSTEMS
The information systems used to support the Company's business
management services operate on IBM AS/400 and RS/6000 computers, various
processors manufactured by Digital Equipment Corporation ("DEC") and personal
computers.
Physician business management services are provided using either the
Company's proprietary practice management systems, known as Infinity and
Infinity X, or practice management systems developed by others.
The Company's "Infinity" Practice Management System has been
specifically designed and is maintained by the Company to meet the practice
management requirements of medical groups and physician delivery systems.
Infinity's major applications include billing, accounts receivable
management, resource scheduling, and decision support.
As part of its strategic business alliance with IDX, a goal of the
Company is to become an "expert user" of certain IDX practice management
systems. IDX offers several comprehensive practice management systems. IDX
systems are installed in nearly 1,000 locations.
Hospital business management services are provided using either the
Company's proprietary billing and accounts receivable system known as OPMS or
Alliant or the legacy systems installed at hospital client's location.
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OPMS/Alliant was developed by the Company to meet the complex ambulatory
billing, accounts receivable and collection requirements of hospitals,
clinics, emergency rooms and ambulatory care centers. OPMS/Alliant has
particular strength in dealing with the higher volume, lower per unit revenue
transactions associated with the delivery of ambulatory services. It is
particularly well suited to process multi-visit transactions associated with
recurring patients in renal dialysis, physical, occupational and speech
therapy departments. System features include integrated and streamlined
triage, on-line registration and check-in, unlimited patient data retention,
complete third party/patient bills, recurring patient processing, automatic
calculation and posting of third party billing, complete bad debt system,
on-line patient financial history, automatic rebilling, payor follow-up and
write-off parameters, appointment scheduling, pre-registration, complete
statistic data capture on integrated text writer and an ad hoc report
generator.
Infinity and Infinity X are not currently year 2000 compliant.
Management has estimated that the costs associated with making them year 2000
compliant are approximately $350,000. OPMS/Alliant is also not year 2000
compliant. The Company has no present plans for making OPMS/Alliant year
2000 compliant. It is currently considering alternatives for OPMS/Alliant
which will be year 2000 compliant.
FISCAL 1998 FINANCIAL INFORMATION
During Fiscal 1998, business management services provided to hospitals,
physicians and managed care organizations represented approximately 84.8%
($23.4 million) of revenues. Approximately $10.5 million of these revenues
were derived from physicians; $7.5 million were attributed to the Company's
hospital client base and $5.4 million related to the Company's managed care
client.
Business management services provided to physicians and physician groups
typically are provided under agreements having an initial term of three
years, automatically renewable on an annual basis following the end of the
initial term. These contracts typically provide for cancellation for cause
upon ninety days written notice. During Fiscal 1998, the Company had seven
major physician group clients.
Business management services provided to the Company's hospital clients
are typically provided under long-term service agreements of up to seven
years. During Fiscal 1998, the Company had five major hospital clients.
During Fiscal 1998, revenues associated with remote computing services
represented approximately 6.4% ($1.8 million) of the Company's revenues. The
Company has two major hospital remote computing service clients with
contracts through July 31, 1998 and June 30, 1999, respectively. Remote
computing services to these two clients represented substantially all of the
Company's Fiscal 1998 remote computing service revenue.
Approximately 2.2% ($0.6 million) of the Company's Fiscal 1998 revenues
related to its clinical information systems products and services. These
products and services have been provided through the Company's Clinical
Dimensions division and had been marketed under the MedTake and CarePoint
product labels. As part of its restructuring announced in Fiscal 1995, the
Company is phasing out of this line of business.
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The remaining 6.5% of revenues ($1.8 million) in Fiscal 1998 revenues
was derived from implementation fees, maintenance and service fees on turnkey
products, interest income and other miscellaneous revenue items.
One of the Company's clients, MetroPlus, represented 19.4% of the
Company's total Fiscal 1998 revenues. The contract with MetroPlus has been
terminated as of February 28, 1998. As a result, there will be no revenue
from MetroPlus in Fiscal 1999. The University of Medicine and Dentistry of
New Jersey ("UMD"), represented 9.4% of Fiscal 1998 revenues and University
Physician Associates, the faculty practice plan associated with UMD, located
in Newark, New Jersey, represented 9.6% of Fiscal 1998 revenues. Other
clients, the Hospital for Special Surgery, located in New York City, and the
Mount Sinai Medical Practice Group, Elmhurst, New York, represented 7.0% and
6.4%, respectively, of the Company's 1998 revenues. No other single customer
represented more than 5.0% of 1998 revenues.
COMPANY'S BUSINESS STRATEGY
The Company's business strategy is to build on its strategic alliance
relationships, its relationships with large integrated delivery systems and
its core competencies of billing and accounts receivable management and the
expert use of information systems management to become a leading provider of
business and information management services to physicians, physician
networks and hospitals. Management believes that these segments of the
market will continue to aggregate and integrate in response to increased
managed care penetration and intensified pressure to control costs and
improve quality. Management further believes that the growth and complexity
associated with these trends will create increased demand for the Company's
business and information management services.
Specific elements of this strategy are:
1. FORM STRATEGIC ALLIANCES. The Company believes in the need to
develop synergistic relationships with other companies to acquire additional
services, products, and additional market share. The Company's recently
executed strategic business alliance with IDX is indicative of management's
commitment and ability to establish and expand strategic business
relationships.
2. EMPHASIS ON INTERNAL GROWTH. The Company's business strategy is to
expand its business with physicians through internal sales efforts that build
on the Company's strategic business alliances to create a network of regional
client service centers from which high quality, cost effective, business
management services can be provided. The Company's business strategy to grow
its hospital inpatient and outpatient billing and accounts receivable
contract management business is to leverage its existing client base to
increase business from new and existing clients.
3. PROVIDE SUPERIOR CUSTOMER SERVICE AT AN AFFORDABLE COST. An
important element of the Company's strategy is its commitment to expand and
augment the skills and expertise of its employees so they can better
understand, analyze and manage its client's business activities. Investments
in the Company's employees allows them to help optimize client revenues,
streamline operating procedures and increase cash collections. The Company
also recognizes the importance of establishing and maintaining long-term
"partnership" relationships with its clients. The
- 10 -
<PAGE>
Company's service standard is reflected through its customer focused culture
and its performance based pricing philosophy that aligns the Company's and
the client's objectives.
Management believes it is important to have a local presence in order to
better serve its clients, keep abreast of regional issues and achieve the
cost advantages associated with efficient, regional service/processing
centers. The Company presently has service centers in southern and central
New Jersey, suburban Chicago, and Denver, Colorado. The Company anticipates
establishing additional regional service centers as part of initial sales to
large Integrated Delivery Systems.
4. CROSS SELL TO EXISTING CLIENTS. A key reason that the Company
selected hospital sponsored integrated delivery systems as a target market is
significant opportunity that exists within these integrated delivery systems
for cross selling the Company's business and information management services.
Within a single integrated delivery system, the Company has the opportunity
to sell a portfolio of business and information management services to a
number of constituencies: MSOs created to manage acquired physician
practices and provide services to community based physicians; PHOs created to
contract with payors for hospital and physician services; faculty practice
plans related to academic medical center clients; affiliated hospital based
physicians and hospital business offices. The Company believes that once it
has established its presence in a client's integrated delivery system, it can
leverage its performance to identify and obtain new business.
COMPETITION
The industry segment that provides billing and accounts receivable
management services to hospital based physicians, office based practitioners
and hospitals is becoming increasingly competitive. Medaphis, a public
(Nasdaq) company, headquartered in Atlanta, Georgia, is a national provider
of physician business management services and a dominant provider in this
industry segment. National Data Corporation, a company headquartered in
Atlanta, Georgia, is also a national provider of business management services
to physicians and hospitals. There are also a large number of smaller
companies providing these services. Most of these companies are regional in
nature and privately owned. Management believes that there may be as many as
1,200 local and regional companies in the U.S. providing business management,
billing and accounts receivable management services to physicians and
physician delivery systems. Recent industry estimates indicate that over 99%
of these regional companies have revenues less than $20 million.
The Company primarily competes with the "in-house alternative" in the
physician business management services market. In these situations,
typically restricted to larger, better established physician groups, the
physicians hire practice managers and utilize turnkey software and their own
administrative/clerical personnel to manage billing and accounts receivable
collections activities and other practice management functions. To a lesser
extent, the Company also competes with certain hospitals that provide billing
and accounts receivable management services to physicians and physician
groups that are part of their medical staffs or otherwise affiliated with the
hospitals.
Over the past several years a number of companies that acquire physician
practices and provide comprehensive practice management services to
physicians and multi-specialty group practices have begun to establish a
presence in the physician market. These companies include PhyCor, Inc. and
Med Partners and a number of sub-specialty carve-out companies. Although
these
- 11 -
<PAGE>
companies may compete with the Company in that they may acquire physician
practices and may provide comprehensive practice management services to the
physicians whose practices they acquire, they may also be prospective
customers in that they may entertain proposals to outsource the billing and
accounts receivable management activities associated with physicians and
physician groups that they have acquired.
The hospital billing and accounts receivable contract management
industry is not mature. Management believes that the Company's major
competition in this area of focus is the "in-house mentality" - hospital
managers utilizing their own or licensed information systems products,
together with their own hospital or clinic employees to mange their billing
and accounts receivable management activities. In addition to publicly owned
companies like Medaphis, National Data Corporation and QuadraMed, the Company
is aware of a few regional firms that provide inpatient and outpatient
billing and accounts receivable contract management services. In addition,
some of the major healthcare information systems companies may be considering
entering this market. If major healthcare information systems companies
elect to aggressively pursue this market segment, they could mobilize
financial and other resources in excess of those available to the Company.
In selling its contract management services to hospitals and integrated
delivery systems, the Company has historically stressed the benefits of its
proprietary software and/or its "expert user" capabilities; its experience in
managing billing and accounts receivable activities and its willingness to
enter into performance based fee arrangements. The Company believes that
many of its hospital contract management prospects will be institutions that
are having difficulty managing the volume and complexity of their current
billing and accounts receivable management activities.
OPERATIONS AND EMPLOYEES
In January of 1997, the Company moved its headquarters and metropolitan
New York/New Jersey service center to a modern and efficient facility at 220
Davidson Avenue, Somerset, New Jersey 08873. In addition to the Company's
corporate offices, the Somerset facility houses the northeastern region data
center, sales personnel, the software development and support organization,
most of the activities associated with the hospital contract management
business and parts of the physician business management business services
business. In June, 1998, the Company leased an additional 5,725 square feet
of office space at its main facility to accommodate new client business.
Approximately 57% of the Company's employees are located at the Somerset
facility. The remaining 43% of the Company's employees are located at
service centers in suburban Chicago, Illinois and Denver, Colorado or are
physically located "on-site" at client facilities providing billing and
accounts receivable management services under contract management agreements.
The Company's physician business management activities are conducted
primarily from its New Jersey corporate office and service centers in
suburban Chicago, Illinois and Denver, Colorado.
On June 15, 1998, the Company employed 381 persons.
The Company's employees are not represented by any labor organization
and management believes that its relationships with its employees are
generally good.
- 12 -
<PAGE>
ITEM 2 -- PROPERTIES
The Company leases one facility in Somerset, New Jersey and one facility
in suburban Chicago, Illinois.
The Somerset facility contains approximately 36,000 square feet and is
occupied under a lease that expires December 31, 2003. The Elmhurst,
Illinois facility serves as the primary location for the Company's
hospital-based physician activities. It includes approximately 13,000 square
feet and is occupied under leases that expire September 30, 1998 and July 31,
1999.
The following table sets forth the minimum future lease payments on
Somerset, New Jersey and Elmhurst, Illinois facilities as of March 31, 1998:
<TABLE>
<CAPTION>
Year Ending March 31, Minimum Lease Payments
-------------------- ----------------------
<S> <C>
1999 $752,000
2000 647,000
2001 601,000
2002 602,000
2003 610,000
2004 457,000
---------
Total 3,669,000
</TABLE>
Net rental expenses for office space were $787,000 in Fiscal 1998.
ITEM 3 -- LEGAL PROCEEDINGS
The Company filed suit on June 28, 1996 in the Superior Court of New
Jersey against Saint Barnabas Medical Center ("Saint Barnabas"), a former
client of the Company. The suit alleges that Saint Barnabas failed to pay
certain fees and bonuses due to the Company in the amount of $727,493 that
were payable under the terms of a now expired service and equipment agreement
between the Company and Saint Barnabas (the "Saint Barnabas Contract"). The
Company seeks payment of such amount, together with certain related damages.
Saint Barnabas has filed a counterclaim seeking an unspecified amount of
damages alleged to have resulted from the Company's alleged failure to
properly perform certain services under its agreement. The Company added a
third party claim against Medical Technology Data, Inc. ("MDT") an
independent supplier of outsourced information systems and services to Saint
Barnabas during the term of the Saint Barnabas Contract, seeking contribution
from MDT to the extent that the Company is found to be responsible for any
claims against it made by Saint Barnabas. Discovery has been completed in
this lawsuit and the Company expects this case to come to trial in Fiscal
1999. The Company intends to vigorously press its claims for payment.
ITEM 4 -- SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the
fourth quarter of Fiscal 1998.
- 13 -
<PAGE>
PART II
ITEM 5 -- MARKET FOR THE COMPANY'S COMMON EQUITY AND RELATED SHAREHOLDER
MATTERS
The Company is authorized to issue: (i) 30,000,000 shares of Common
Stock, $0.01 par value per share, of which 6,371,383 shares were issued and
6,355,683 shares were outstanding as of June 19, 1998; and (ii) 10,000,000
shares of Preferred Stock, $0.01 par value per share, of which 1,500,000
shares of a class designated as "Series A Convertible Preferred Stock" and
1,000,000 shares of a class designated as "Series B Convertible Preferred
Stock", all of which were issued and outstanding as of June 19, 1998.
The Common Stock is listed on the NASDAQ National Market System under
the symbol USRV. There is no public market for the Company's Series A or
Series B Convertible Preferred Stock, which is convertible by holders thereof
into Common Stock on a share for share basis (subject to adjustment).
On June 19, 1998, the Common Stock was held by approximately 400 holders
of record, the Company's Series A Convertible Preferred Stock was held by
three holders of record, and the Company's Series B Convertible Preferred
Stock was held by seven holders of record.
The following table sets forth actual high and low sales prices for the
Common Stock as reported on NASDAQ national market system for the periods
indicated.
<TABLE>
<CAPTION>
Closing Sales Prices
--------------------
High Low
---- ---
<S> <C> <C>
Year Ended March 31, 1997
-------------------------
1st Quarter 5.516 3.875
2nd Quarter 5.000 2.875
3rd Quarter 4.250 2.313
4th Quarter 5.000 2.250
Year Ended March 31, 1998
-------------------------
1st Quarter 3.125 1.500
2nd Quarter 2.000 0.938
3rd Quarter 2.875 1.063
4th Quarter 2.188 1.375
Year Ended March 31, 1999
-------------------------
1st Quarter (1) 2.250 1.250
</TABLE>
(1) Through June 19, 1998
- 14 -
<PAGE>
The Company has never paid dividends on the Common Stock. The Company's
payment of cash dividends in the future will be at the discretion of the
Company's Board of Directors and will depend, among other things, on the
Company's future earnings, operations, capital requirements and financial
condition. Management presently anticipates that no cash dividends will be
declared on the Common Stock in the foreseeable future.
ITEM 6 -- SELECTED FINANCIAL DATA
(Amounts in thousands, except per share data)
The following selected financial data for the five years ending March
31, 1998 have been derived from the financial statements which have been
audited by Wiss & Company, LLP, independent auditors. The following
information should be read in conjunction with the Financial Statements of
the Company, and the related notes thereto, and "Item 7 -- Management's
Discussion of Financial Results" included in this Report.
<TABLE>
<CAPTION>
OPERATION STATEMENT DATA (1)
FOR THE YEAR ENDED MARCH 31,
1998 1997 1996 1995 1994
------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
Revenue $27,607 $22,009 $16,245 $15,953 $21,262
Net Income (Loss) 728 (3,039) (3,906) (8,052) (2) (1,192)
Net Income (Loss)
per share of common stock ($.03) ($.59) ($.66) ($1.34) ($.21)
Adjusted Weighted
Average Shares
Outstanding 6,351 6,308 6,282 6,023 5,813
</TABLE>
(1) In thousands except per share data
(2) Includes $6.8 million of pre-tax expenses associated with 1995 restructuring
<TABLE>
<CAPTION>
BALANCE SHEET DATA (1)
FOR THE YEAR ENDED MARCH 31,
1998 1997 1996 1995 1994
<S> <C> <C> <C> <C> <C>
Total Assets $19,864 $20,739 $19,053 $16,906 $21,878
Working Capital 10,505 9,512 9,447 7,151 11,358
Long-Term Liabilities 196 369 1,172 1,770 976
Redeemable Preferred Stock 0 0 6,110 0 0
</TABLE>
(1) In thousands
- 15 -
<PAGE>
ITEM 7 -- MANAGEMENT'S DISCUSSION OF FINANCIAL RESULTS
GENERAL
For the year ended March 31, 1998, the Company reported net income of
$728,000. This represents the first time since the year ended March 31, 1993
that the Company's net income has been positive for the year. This
improvement was primarily the result of net contribution margin associated
with new business and the $1.3 million reduction in selling, general and
administrative expenses. However, as a result of the settlement of the
litigation with MetroPlus, the MetroPlus contract was terminated February 28,
1998 and the Company will derive no revenue from MetroPlus for Fiscal 1999.
In 1998, the Company's MetroPlus contract represented $5.4 million or 19.4%
of total revenue.
LIQUIDITY AND CAPITAL RESOURCES
<TABLE>
<CAPTION>
LIQUIDITY AND CAPITAL RESOURCES
1998 1997
---- ----
<S> <C> <C>
Current Assets $13,883,000 $14,721,000
Current Liabilities 3,378,000 5,209,000
Working Capital 10,505,000 9,512,000
Working Capital Ratio to 1 4.1 2.8
</TABLE>
For the year ended March 31, 1998, the Company's Working Capital
increased $993,000. The major components of this increase were net income of
$728,000 and the loan impairment charge of $394,000, which were partially
offset by the reduction in long-term accrued restructuring charges of
$173,000.
For the year ended March 31, 1998, the Company's Cash and Cash
Equivalents decreased $3,211,000. The major components of this decrease were
increases in net accounts receivable of $1,853,000 (billed) and $770,000
(unbilled), decreases in Accounts Payable, Accrued Payroll and Benefits, and
the current portion of Accrued Restructuring Charges of $666,000, $177,000
and $407,000, respectively, and a net decrease of $291,000 resulting from the
net change in all other current assets and liabilities except Cash and Cash
Equivalents. Partially, offsetting these items was the $993,000 increase in
Working Capital described above. All of the increase in accounts receivable
billed and unbilled related to increases at University Physician Associates
and other new clients acquired during Fiscal 1998. A majority of the
decrease in Accounts Payable resulted from the payment and/or settlement of
the amount due to MetroPlus subcontractors at March 31, 1997.
Management expects that available cash and cash flow will be sufficient
to meet the Company's operating and capital requirements during Fiscal 1999.
YEAR 2000 COMPLIANCE
The principal information systems used by the Company to support its
business management services are Infinity and Infinity X and OPMS/Alliant.
Infinity and Infinity X are not currently year 2000 compliant. Management
has estimated that the costs associated with making them year 2000
- 16 -
<PAGE>
compliant are approximately $350,000. This work is presently under way.
OPMS/Alliant is not year 2000 compliant. Rather than make OPMS/Alliant Year
2000 compliant, the Company is currently examining alternatives for
OPMS/Alliant. Although the Company believes that year 2000 compliance will
not have a material adverse effect, the Company is uncertain as to the extent
its customers and suppliers may be affected by year 2000 issues.
RESULTS OF OPERATIONS
The following table sets forth the dollar amounts and percentage of
total revenues represented by various components of the Company's statement
of operations (in thousands):
<TABLE>
<CAPTION>
Percent of Percent of Percent of
1998 Revenues 1997 Revenues 1996 Revenues
<S> <C> <C> <C> <C> <C> <C>
Revenues:
Service fees $26,645 96.5% $21,001 95.4% $15,325 94.3%
Software license fees 676 2.5 470 2.1 409 2.5
Sales of equipment 33 0.1 169 .8 306 1.9
Interest and other 253 0.9 369 1.7 205 1.3
------- ----- ------- ----- -------- -----
Total revenues 27,607 100.0 22,009 100.0 16,245 100.0
------- ----- ------- ----- -------- -----
------- ----- ------- ----- -------- -----
Expenses:
Cost of services 18,947 68.6 15,232 69.2 11,116 68.4
Cost of equipment sales 11 - 96 .4 166 1.0
Research and development 1,478 5.4 1,872 8.5 2,466 15.2
Selling, general and
administrative 5,885 21.3 7,246 32.9 8,159 50.2
Interest 99 0.4 166 .8 114 0.7
Restructuring charges - - - - (590) -3.6
Loan Impairment Charge 394 1.4 436 2.0
------- ----- ------- ----- -------- -----
Total expenses 26,814 97.1 25,048 113.8 21,431 131.9
------- ----- ------- ----- -------- -----
------- ----- ------- ----- -------- -----
Loss before income taxes 793 2.9 (3,039) -13.8 (5,186) -31.9
Income tax (tax ) benefit (65) -0.3 - - 1,280 7.9
------- ----- ------- ----- -------- -----
Net income (loss) 728 2.6% (3,039) -13.8% (3,906) -24.0%
------- ----- ------- ----- -------- -----
------- ----- ------- ----- -------- -----
</TABLE>
FISCAL 1998 COMPARED TO FISCAL 1997
REVENUE. During 1998, total revenues increased approximately $5.6
million or 25.4% over 1997 levels to $27.6 million. In 1998, the Company's
MetroPlus contract represented $5.4 million or 19.4% of total revenues. As
part of the litigation settlement with MetroPlus, the contract was terminated
February 28, 1998. Service fees, which represented over 96% of the Company's
1998 revenues, increased $5.6 million (26.9%) to $26.6 million. This
increase resulted from $3.8 million
- 17 -
<PAGE>
of additional services associated with physicians (including $2.5 million
from University Physician Associates ("UPA"), $1.4 million of additional
service fee revenue from hospital accounts, $0.7 million of increased revenue
associated with the Company's contract to provide third party and
administrative services to MetroPlus and a decrease of $0.3 million in
service fees associated with discontinued products.
Other revenues, including software licenses, sales of equipment, and
interest and other decreased $46,000 or 4.6%.
EXPENSES. Fiscal 1998 total expenses increased $1.8 million or 7.1%.
The increase in Cost of Services of $3.7 million was directly related to the
addition of new business. This increase was partially offset by decreases
from Fiscal 1997 of $394,000 or 21.0% in research and development, and
$1,361,000 or 18.8% in selling, general and administrative expense and other
net decreases of $194,000 or 27.8%. Decreases in research and development
expense related to the phase-out of the clinical information systems business
and a decision not to continue making enhancements to the Company's
proprietary hospital billing and accounts receivable system. The decrease in
selling general and administrative expense related to the restructuring of
the Company's sales and marketing organization and lower corporate overhead
costs.
During Fiscal 1998, the Company recorded a $394,000 loan impairment
charge to reflect the amount by which the value of 252,557 shares of Common
Stock held as security for a loan made in connection with an acquisition in
1991, declined between March 31, 1997 and March 31, 1998. If and to the
extent that the closing stock price at the end of any subsequent quarter is
greater than $1.562, there will be a reversal of this charge and charges made
in the prior fiscal year.
NET INCOME. The Company's $728,000 net income in Fiscal 1998 was
compared to the net loss reported for Fiscal 1997 of $3.0 million. This
improvement was primarily the result of the net contribution margin
associated with new business and the $1.3 million reduction in selling,
general and administrative expenses.
FISCAL 1997 COMPARED TO FISCAL 1996
REVENUE. During 1997, total revenues increased approximately $5.8
million or 35.5% over 1996 levels to $22.0 million. Service fees, which
represented approximately 95% of the Company's 1997 revenues, increased $5.7
million (37.3%) to $21.0 million. This increase resulted from $4.1 million
of additional revenues associated with the Company's contract to provide
third party administrative services to MetroPlus, together with increases in
service fee revenue associated with physicians of $1.0 million and hospital
accounts of $.6 million
Other revenues, including sales of equipment, software licenses, and
interest and other increased $88,000 or 9.6%.
EXPENSES. Fiscal 1997 total expenses increased $3.6 million or 16.9%.
Excluding the restructuring gain recorded in Fiscal 1996 and the loan
impairment charge recorded in Fiscal 1997, expense increases totaled $2.6
million or 11.8%. The increase in Cost of Services of $4.1 million was
directly related to the addition of new business. This increase was
partially offset by decreases of $594,000 (24.1%) in research and
development, and $913,000 (11.2%) in selling, general and
- 18 -
<PAGE>
administrative expense. Decreases in research and development expense
related to the phase-out of the clinical information systems business. The
decrease in selling general and administrative expense related to the
restructuring of the Company's sales and marketing organization and lower
corporate costs.
During Fiscal 1997, the Company recorded a $436,000 loan impairment
charge to reflect the amount by which the value of 252,557 shares of Common
Stock held as security for a loan made in connection with an acquisition in
1991, was less than the outstanding principal balance on such loan. If and
to the extent that the closing stock price at the end of any subsequent
quarter is greater than $3.125, there will be a reversal of this charge.
NET LOSS. The Company's $3.0 million net loss was $867,000 less than
the net loss reported for 1996. The Company's 1997 loss before income tax
benefit of approximately $3.0 million was $2.15 million less than the $5.2
million loss before income tax reported in Fiscal 1996.
The decline in the Company's loss before income tax was primarily the
result of the net contribution margin associated with new business.
ITEM 8 -- FINANCIAL STATEMENTS AND SCHEDULES
Information required by this Item is set forth at the pages indicated in
Item 14(a) below.
ITEM 9 -- CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
- 19 -
<PAGE>
ITEM 10 -- DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY
The table and summary below sets forth certain information with respect
to the directors and executive officers of the Company. Executive officers
of the Company, for purposes of Section 16 of the Securities Exchange Act of
1934, are marked with an asterisk. A Board of Directors consisting of eight
individuals was elected at the August 20, 1997 Annual Meeting to serve until
the next annual meeting or until successors are elected and qualified. Mr.
Cowie has been nominated and elected by the holders of a majority of the
Series A Convertible Preferred Shares ("Series A Shares") pursuant to the
terms of the Certificate of Designation for the Series A Shares. The
Certificate of Designation authorizing the Series B Convertible Preferred
Shares ("Series B Shares") provides that so long as (i) at least 200,000
Series B Shares are outstanding and Frontenac VI Limited Partnership
("Frontenac VI") owns not less than a majority of such shares and (ii) the
holders of the Series A Shares are not eligible to elect a director pursuant
to the Certificate of Designation authorizing the Series A Shares, the
holders of the Series B Shares shall have the right to elect one director of
the Company. The remaining directors are elected by a plurality of the votes
cast in any election.
<TABLE>
<CAPTION>
Name Age Position
------ ----- ----------
<S> <C> <C>
Graham O. King* 58 Chairman of the Board and
Chief Executive Officer
James A. Pesce* 55 President and Director
Derek A. Pickell 37 Vice President, Business
Development
Robert E. Van Metre* 57 Secretary, Treasurer and Vice
President, Accounting and
Finance
S. M. Caravetta 72 Vice Chairman of the Board
Frederick R. Blume 56 Director
Robert C. Bowers 52 Director
James E. Cowie 43 Director
Stanford J. Goldblatt 59 Director
Robert E. King 62 Director
</TABLE>
GRAHAM O. KING joined the Company on October 12, 1994 as the Company's
Chief Executive Officer. He was appointed Chairman of the Board of Directors at
a Board of Directors meeting held on October 28, 1994. He was formerly with
Shared Medical Systems, Inc., a healthcare information service company, from
October 1, 1986 until October 31, 1993, where he served as its President from
April 1987. From October 31, 1993 until joining the Company, he was a partner
with Salt Creek Ventures, a private investment company. Mr. King currently
serves as a
- 20 -
<PAGE>
director for ADAC Laboratories, Inc. and Optika Imaging, Inc. Mr. King and
Mr. Robert E. King, another director of the Company, are brothers.
JAMES A. PESCE has served as the President of the Company and been a
director of the Company since 1982. Mr. Pesce has 32 years of experience in
the healthcare information systems industry. Currently, Mr. Pesce is
responsible for all of the Company's hospital operations, development, data
center and customer support activities. From 1979 to 1982 he was employed as
the Northeast and Southeast Regional Director of Client Services for
McDonnell Douglas Automation Company which provided healthcare data
processing services.
DEREK A. PICKELL has served as Vice President, Business Development
since joining the US Servis Management Team in March 1995. Mr. Pickell has
15 years of experience in the healthcare industry providing management
services and information systems to healthcare providers. Prior to joining
US Servis, Mr. Pickell served as Senior Vice President of Sales and Service
for Wellmark Incorporated, a provider of electronic data interchange to the
healthcare industry. He held this position from 1992 to 1995 and had
national sales, implementation, and ongoing client support responsibilities.
Prior to 1992, Mr. Pickell served as the National Director of Sales for the
Health Care Systems Division of Ferranti International, a healthcare
information services company.
ROBERT E. VAN METRE has served as Secretary and Vice President,
Accounting and Finance since 1995 and Treasurer since August, 1997. Mr. Van
Metre has over 22 years of experience in financial management in the
financial services industry. From 1987-1994, Mr. Van Metre held several
senior management positions with Integrated Resources Life Companies, Inc.
including: Senior Vice President-Chief Financial Officer, Executive Vice
President, and President. From 1982-1987, Mr. Van Metre was Executive Vice
President-Chief Financial Officer for the Dasake Group, Inc. Mr. Van Metre
held a variety of senior management positions with Household International
(HFC) from 1973-1982. Prior to joining HFC, he was Administrator of Finance
for the Illinois State Toll Highway Authority.
S. M. CARAVETTA was the Chairman of the Board of Directors and Chief
Executive Officer of the Company from its organization in 1976 through
October 28, 1994. He became Vice Chairman of the Board of Directors on
October 28, 1994. Mr. Caravetta has been a director of the Company since
1976.
FREDERICK R. BLUME is co-founder and manager of CB Health Ventures, a
medically-focused venture capital fund. Prior to forming CB Health Ventures,
he was the founder and managing partner of Capital Health Venture Partners,
also a medically-focused VC fund. Mr. Blume is an adjunct Professor at the
Boston College Carroll School of Management.
ROBERT C. BOWERS has been a director of the Company since April 20,
1995. Since May 7, 1996, Mr. Bowers has been Vice President and Chief
Financial Officer of COLLEGIS, Inc. From June 1995 through May 1996, Mr.
Bowers was Vice President and Chief Financial Officer of HTE, Inc., a
software service company. From June 1985 through October 1994, Mr. Bowers was
Senior Vice President and Chief Financial Officer of CA Newtrend, Inc., the
general partner of Newtrend, L.P. (and its partnership and corporate
predecessors).
- 21 -
<PAGE>
JAMES E. COWIE has been a director of the Company since July 18, 1995.
Mr. Cowie has been a general partner of Frontenac Company, a Delaware general
partnership that is the general partner of Frontenac VI and other venture
capital partnerships, since 1989. He also serves on the Boards of Directors
of PLATINUM technology, inc. and 3Com Corporation.
STANFORD J. GOLDBLATT has been a director of the Company since April 20,
1995. He has been a partner in the law firm of Winston & Strawn, counsel to
the Company, since August 1997. Prior to joining Winston & Strawn, Mr.
Goldblatt had been a partner with the law firm of Hopkins & Sutter since 1979.
ROBERT E. KING has been a director of the Company since April 20, 1995.
Since 1994, he has been Chairman of Salt Creek Ventures, a private equity
firm. From 1983 through 1994, Mr. King was Chairman and Chief Executive
Officer of The Newtrend Group, a software company and computer services
company. He was President and Chief Executive Officer of DELTAK, inc., a
video publisher, from 1971 to 1982. He is also a Director of DeVry, Inc.,
COLLEGIS, Inc., American Floral Services, Inc., and Premier Systems
Integrators, Inc. Mr. King and Mr. Graham O. King are brothers.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934 requires the
Company's directors, executive officers and persons who own beneficially
more than ten percent of a registered class of the Company's equity
securities to file with the Securities and Exchange Commission ("SEC")
initial reports of ownership and reports of changes in ownership of such
securities of the Company. Directors, executive officers and greater than
ten percent stockholders are required by SEC regulations to furnish the
Company with copies of all Section 16(a) reports they file.
To the Company's knowledge, based solely on a review of the copies of
such reports furnished to the Company and representations that no other
reports were required, except as set forth in the following sentence, all
Section 16(a) filing requirements applicable to its directors, executive
officers and greater than ten percent beneficial owners were complied with
during Fiscal 1998.
- 22 -
<PAGE>
ITEM 11 -- EXECUTIVE COMPENSATION
The following table summarizes the annual and long-term compensation of
certain of the Company's executive officers for Fiscal 1998, 1997 and 1996.
<TABLE>
<CAPTION>
Long-Term
Comp.
Options
(Shares)
----------
Annual Compensation Securities
------------------- Underlying All Other
Name/Position Year Salary Bonus (1) Options (2) Comp.
------------- ---- ------ -------- ---------- ---------
<S> <C> <C> <C> <C> <C>
Graham O. King 1998 $265,738 $ 28,495 -- $ 7,307 (4)
Chairman and CEO (3) 1997 239,000 120,000 -- 7,307 (4)
1996 239,000 105,000 -- 3,756 (4)
James A. Pesce 1998 195,318 17,723 125,000 $ 2,613 (5)
President 1997 189,000 50,000 17,000 10,798 (5)
1996 189,000 30,000 -- 10,798 (5)
Michael B. Loscalzo 1998 66,635 8,899 -- 14,808 (7)
Treasurer and Vice 1997 175,000 50,000 35,000 --
President (6) 1996 175,000 37,500 10,000 --
Robert E. Van Metre 1998 145,654 12,000 100,000 --
Secretary, Treasurer 1997 130,000 40,000 -- --
and Vice President, 1996 100,000 22,500 50,000 --
Accounting and
Finance (8)
</TABLE>
(1) Includes amounts paid in subsequent fiscal year applicable to previous
fiscal year.
(2) On July 23, 1997, the Board of Directors of the Company completed a
restructuring of the management compensation program of the Company in order
to retain key employees and to provide appropriate employee incentives. As
part of the compensation adjustment, all outstanding options for present
employees were repriced to the then current market price ($1.3125) and
certain senior level management and other key employees were granted
additional options, not in excess of normal grants. To induce the Board of
Directors of the Company to approve the restructuring plan, Mr. King
voluntarily agreed to cancel options to purchase 200,000 shares of the
Company's Common Stock under his non-qualified option agreement. On October
30, 1997, to correct an alleged technical difficulty in the July 23, 1997
repricing of stock options, all present employee options issued under the
1986 and 1993 plans were canceled and reissued under the 1993 plan with no
changes in any provisions. On July 23, 1997, Messrs. King, Pesce and Van
Metre had options for 800,000, 150,000 and 50,000 shares, respectively,
repriced at $1.3125 and on October 30, 1997, the options issued to Messrs.
Pesce and Van Metre were canceled and reissued at $1.3125 for the same number
of shares.
(3) See "-- Discussion of 1998 Executive Officer Compensation and Employment
Contracts."
(4) Represents the premium on term life and disability insurance maintained for
Mr. King by the Company.
(5) $9,600 represents an automobile allowance for 1997 and 1996, with the
balance representing premiums on term life insurance maintained by the
Company. The Company has agreed that if Mr. Pesce dies while employed by the
Company, the Company shall pay to his irrevocably designated beneficiary
$100,000 per annum for a period of ten (10) years thereafter, payable in equal
monthly installments, commencing on the first day of the month following
death. The Company maintains a term life policy in the face amount of
$500,000 on the life of Mr. Pesce, which the Company believes when
considering tax effects will be sufficient to cover this plan.
(6) Mr. Loscalzo joined the Company in 1995 and resigned in August 1997. From
1993 to 1995, Mr. Loscalzo was a Senior Vice President of Cain Brothers &
Company, a New York based health care investment banking firm. Mr. Loscalzo
was a co-founder
- 23 -
<PAGE>
and, from 1988 to 1992, Managing Director of The Hunter Group, a health care
workout firm. Between 1988 and 1991, he served as either CEO or CFO for
workout clients in Seattle, Washington; St. Paul, Minnesota; Miami, Florida;
and San Francisco, California. Prior to the formation of The Hunter Group,
Mr. Loscalzo served as Senior Vice President of Finance for a Philadelphia
teaching hospital. From 1978 to 1985, he was a manager in Arthur Andersen &
Co.'s Philadelphia health care audit practice.
(7) Represents payment for accrued vacation.
(8) Mr. Van Metre was elected Treasurer following the departure of Mr.
Loscalzo.
DISCUSSION OF 1998 EXECUTIVE OFFICER COMPENSATION AND EMPLOYMENT CONTRACTS
Mr. Graham O. King joined the Company as Chief Executive Officer on
October 12, 1994. He became Chairman of the Board of Directors effective
October 28, 1994. Mr. King is a party to an employment agreement with the
Company that has been extended through March 31, 1999. Unless either party
elects not to extend the agreement, it automatically extends for one year
terms thereafter. Under the agreement, Mr. King's salary can be increased at
the discretion of the Board of Directors. Effective October 1, 1997, Mr.
King's salary was increased to $288,000 per year and his right to receive a
bonus was eliminated for the remainder of Fiscal 1998. The agreement
provides for one year severance unless there is termination for cause or a
voluntary resignation without good reason as defined in his employment
agreement. Mr. King was issued 300,000 shares of Common Stock in lieu of a
cash signing bonus. Mr. King has agreed with the Company not to sell more
than 33,333 of these shares plus any shortfall from previous fiscal quarters
in any fiscal quarter during Mr. King's employment. Mr. King was granted
stock options to acquire 1,000,000 shares of Common Stock at the market
price ($3.50/share) on the date of the commencement of his employment.
However, on June 23, 1997, Mr. King agreed to exchange this option for stock
options to acquire 800,000 shares of Common Stock having an exercise price of
$1.3125 per share. Of these options, 400,000 are currently vested, 133,333
vest on each of July 23, 1998 and July 23, 1998 and the entire 800,000 is
vested on July 23, 2000. Alternatively, these stock options vest whenever
the stock has traded at or above $5.00 on at least 30 of the 40 prior
business days, or upon a change of control. Consummation of the Merger will
immediately vest this option. These options contain anti-dilution
provisions authorizing adjustments under certain circumstances. Mr. King's
shares, including those underlying options, are subject to a registration
rights agreement. The Company has also agreed to reimburse Mr. King for the
cost of a term life insurance policy for $1,000,000 on Mr. King's life for
his benefit.
On June 14, 1995, the Company agreed to loan Mr. Graham King $157,800 in
order to allow Mr. King to pay the income taxes due in connection with a
portion of the restricted stock he received. The terms of the note
evidencing the loan provide that the loan is interest-free until 120 days
after the Company registers Mr. King's restricted stock for sale, that the
loan bears interest at a rate equal to the rate of return achieved by the
Company on its cash reserves plus 1% after such date, and that the Company
may demand repayment at any time after the note begins to accrue interest.
As of March 31, 1998, the balance of this loan was $40,000.
Mr. Pesce entered into an employment agreement with the Company
effective August 1, 1993 which was amended October 9, 1996. Mr. Pesce's
employment agreement currently provides for a month to month term and an
annual salary of $189,000 plus a bonus, if earned, up to $40,000. The
employment agreement also provides for a severance payment of sixteen (16)
months salary upon termination. The Company has agreed that if Mr. Pesce dies
while employed by the Company, the Company shall pay to his irrevocably
designated beneficiary $100,000 per annum for a period
- 24 -
<PAGE>
of ten (10) years thereafter, payable in equal monthly installments,
commencing on the first day of the month following death. The Company
maintains a term life policy in the face amount of $500,000 on the life of
Mr. Pesce, which the Company believes when considering tax effects will be
sufficient to cover this plan.
All officers hold office until their successors are duly elected or
appointed and qualified, or until their earlier resignation or removal.
OPTION GRANTS IN FISCAL 1998
The following table sets forth certain information with respect to
options granted in Fiscal 1998 to each named executive officer of the
Company.
<TABLE>
<CAPTION>
POTENTIAL REALIZABLE
VALUE AT ASSUMED
ANNUAL RATES OF STOCK
INDIVIDUAL GRANTS PRICE APPRECIATION FOR
OPTION TERM (3)
----------------- ----------------------
Percent of
Total Options
Granted
Options to Employees Exercise or Expiration
Granted (1) in Fiscal Year Base Price Date (2) 5%($) 10%($)
Name
----- ---------- -------------- ----------- ----------- ----- ------
<S> <C> <C> <C> <C> <C> <C>
Graham O. King (4) . . . . -- -- -- -- -- --
James A. Pesce . . . . . 125,000 21.8% $1.3125 7/23/07 $103,178 $261,473
Michael B. Loscalzo. . . -- -- -- -- -- --
Robert E. Van Metre . . . 100,000 17.4 1.3125 7/23/07 82,542 209,179
</TABLE>
(1) On July 23, 1997, the Board of Directors of the Company completed a
restructuring of the management compensation program of the Company in order
to retain key employees and to provide appropriate employee incentives. As
part of the compensation adjustment, all outstanding options for present
employees were repriced to the then current market price ($1.3125) and
certain senior level management and other key employees were granted
additional options, not in excess of normal grants. To induce the Board of
Directors of the Company to approve the restructuring plan, Mr. King
voluntarily agreed to cancel options to purchase 200,000 shares of the
Company's Common Stock under his non-qualified option agreement. On October
30, 1997, to correct an alleged technical difficulty in the July 23, 1997
repricing of stock options, all present employee options issued under the
1986 and 1993 plans were canceled and reissued under the 1993 plan with no
changes in any provisions. On July 23, 1997, Messrs. King, Pesce and Van
Metre had options for 800,000, 150,000 and 50,000 shares, respectively,
repriced at $1.3125 and on October 30, 1997, the options issued to Messrs.
Pesce and Van Metre were canceled and reissued at $1.3125 for the same number
of shares.
(2) Options vest as determined at the time of the grant and expire after ten
years from the date of grant. Vesting is contingent on continuing employment
with the Company.
(3) Amounts reported in these columns represent amounts that may be realized
upon exercise of the options immediately prior to the expiration of their
term assuming the specified compounded rates of appreciation (5% and 10%) of
the Common Stock over the term of the options. These numbers are calculated
based on rules promulgated by the Securities and Exchange Commission and do
not reflect the Company's estimate of future stock price increases. Actual
gains, if any, on stock option exercises and Common Stock holdings are
dependent on the timing of such exercise and the future performance of the
Common Stock. There can be no assurance that the rates of appreciation
assumed in this table can be achieved or that the amounts reflected will be
received by the individuals.
(4) Issued pursuant to an employment agreement entered into between Mr. King
and the Company. See "-- Discussion of 1998 Executive Officer Compensation
and Employment Contracts."
- 25 -
<PAGE>
AGGREGATED OPTION EXERCISES IN FISCAL 1998
AND FISCAL YEAR-END OPTION VALUES
The following table sets forth certain information with respect to options
exercised by the named executive officers in Fiscal 1998 and the number of
options held by each of the named executive officers as of March 31, 1998:
<TABLE>
<CAPTION>
Value of
Unexercised
Number of in-the-Money
Unexercised Options Options at Fiscal
Shares at Fiscal 1998 1998 Year-End
Acquired Year-End (#) ($)(1)
on ------------------ ---------------
Exercise Value Realized Exercisable/ Exercisable/
Name (#) ($) Unexercisable Unexercisable
---- ---------- -------------- ------------------ ---------------
<S> <C> <C> <C> <C>
Graham O. King . . . . . . -- -- 400,000/400,000 $100,000/100,000
James A. Pesce . . . . . . -- -- 136,400/138,600 34,100/ 34,650
Michael B. Loscalzo . . . . -- -- -- --
Robert E. Van Metre. . . . -- -- 33,333/116,667 8,333/ 29,167
</TABLE>
(1) The value of options reflects the increase in market value of the
Company's Common Stock from the date of grant through March 31, 1998 (when
the closing price of the Common Stock was $1.5625 per share). The table
includes both options that are vested and options that are not vested. Value
actually realized by the executive officers will depend on the value of the
Common Stock at the time of exercise.
- 26 -
<PAGE>
ITEM 12 -- SECURITY OWNERSHIP
OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information, as provided by the holders
to the Company, concerning beneficial ownership of Common Stock as of June
19, 1998, by (i) all persons known by the Company to be the beneficial owners
of five percent or more of the issued and outstanding Common Stock, (ii)
each of the directors and named executive officers and (iii) the directors
and executive officers of the Company as a group. Except as noted, all
addresses are 220 Davidson Avenue, 2nd Floor, Somerset, New Jersey 08873.
<TABLE>
<CAPTION>
NO. OF SHARES PERCENTAGE OF
NAME OF BENEFICIAL OWNER (1) BENEFICIALLY OWNED OWNERSHIP
<S> <C> <C>
S.M. Caravetta (2) 1,064,028 16.7%
Frederick R. Blume (3) 200,821 3.2
c/o American Healthcare Fund
122 S. Michigan Ave.
Chicago, IL 60603
Graham O. King (4) 600,000 8.9
James A. Pesce (5) 226,400 3.5
Robert E. Van Metre (6) 35,333 (11)
Stanford J. Goldblatt -- --
Robert E. King (7) 297,500 4.5
Robert C. Bowers (8) 30,000 (11)
James E. Cowie (9) 2,557,500 28.7
c/o Frontenac VI Limited
Partnership
135 S. LaSalle Street
Chicago, IL 60603
Stephen G. Sullivan (10) 403,116 6.3
22 Heath Drive
Bridgewater, NJ 08807
All Executive Officers and 5,011,582 50.7
Directors as a Group (9 persons)
</TABLE>
(1) The Company believes that David Vanco, 4 South Piermont Drive, North
Barrington, IL 60010, owns in excess of 5% (but less than 8%) of the
outstanding shares of the Common Stock, however, the Company has been unable
to verify the exact holdings of Mr. Vanco either by filings with the SEC or
from Mr. Vanco directly.
(2) Includes 116,000 shares of Common Stock owned by the children of Mr.
Caravetta. Mr. Caravetta disclaims beneficial ownership of such shares.
Includes 198,028 shares of Common Stock owned by trusts, of which the
children of Mr. Caravetta are the beneficiaries and Mr. Stephen J. Feinberg
and the wife of Mr. Caravetta are trustees. Mr. Caravetta disclaims
beneficial ownership of such shares. Mr. Caravetta may be deemed to be the
promoter or founder of the Company as such term is defined under the federal
securities laws.
- 27 -
<PAGE>
(3) Includes 45,000 shares issuable upon exercise of vested stock
options and 125,000 shares issuable upon conversion of Series B
Convertible Preferred Shares. Mr. Blume's "Percentage of Ownership" is
calculated assuming that the 125,000 shares of common stock issuable upon
conversion of the Series B Convertible Preferred Stock are issued and
outstanding. Does not include options to purchase 20,000 shares which might
be issued upon exercise of stock options which have not yet vested.
(4) Includes 400,000 shares issuable upon exercise of vested stock
options. Does not include 400,000 shares issuable upon exercise of stock
options which are not currently exercisable. (See "Discussion of 1996
Executive Officer Compensation and Employment Agreements.")
(5) Includes 136,400 shares issuable upon exercise of vested stock options.
Does not include 138,600 shares which might be issued upon exercise of a
stock option which has not yet vested.
(6) Includes 33,333 shares issuable upon exercise of vested stock options.
Does not include 116,667 shares which might be issued upon exercise of a
stock option which has not yet vested.
(7) Includes 20,500 shares owned by Mr. King's wife and 73,000 shares held in
trust for the benefit of Mr. King's children. Mr. King disclaims beneficial
ownership of all such shares. Also includes 18,000 shares issued, and 49,000
shares issuable upon exercise of warrants, and 125,000 shares issuable upon
conversion of Series A Convertible Preferred Shares, all held in trust for
the benefit of Mr. King's children. Mr. King disclaims beneficial ownership
of all such shares. Mr. King's "Percentage of Ownership" is calculated
assuming that the 174,000 shares of Common Stock issuable upon exercise
of the warrants and conversion of the Series A Convertible Preferred Stock
are issued and outstanding.
(8) Includes 30,000 shares issuable upon exercise of vested stock options.
Does not include 20,000 shares which might be issued upon exercise of a stock
option which has not yet vested.
(9) Shares owned by Frontenac VI Limited Partnership. Mr. Cowie disclaims
beneficial ownership of such shares. Includes 490,000 shares issuable upon
exercise of warrants, 1,250,000 shares issuable upon conversion of Series A
Convertible Preferred Shares and 817,500 shares issuable upon conversion of
Series B Convertible Preferred Shares. Mr. Cowie's "Percentage of Ownership"
is calculated assuming that the 2,557.500 shares of Common Stock issuable
upon exercise of the warrant, conversion of the Series A Convertible
Preferred Stock and conversion of the Series B Convertible Preferred Stock
are issued and outstanding.
(10) Includes 75,000 shares issuable upon exercise of vested stock options,
and 559 shares held by Mr. Sullivan's wife.
(11) Amount represents less than 1%.
ITEM 13 -- CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Company has agreed to provide for medical insurance coverage for the
remainder of Mr. Caravetta's and his wife's life (at her expense following
his death).
Mr. Goldblatt, a director of the Company, is a partner in the law firm
of Winston & Strawn, which has provided, and continues to provide, legal
services to the Company. Mr. Goldblatt is also a member of the healthcare
advisory committee of Frontenac Company, a Delaware general partnership that
is the general partner of Frontenac VI. Frontenac VI holds equity
representing approximately 28.7% of the Company. In addition, Mr. Goldblatt
is a trustee of a trust established for the benefit of members of Mr.
Goldblatt's family, which trust is a limited partner in Frontenac VI. Winston
& Strawn provides legal services to Frontenac VI, Frontenac Company and
Robert E. King on a regular basis, although it has not provided legal
services to Frontenac VI, Frontenac Company or Mr. King with regard to any
transactions with the Company.
Mr. Cowie, a director of the Company, is a general partner of Frontenac
Company, which is the general partner of Frontenac VI.
The Company maintains a directors and officers liability insurance
policy covering all directors of the Company.
- 28 -
<PAGE>
PART IV
ITEM 14 -- EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a)(1) Financial Statements: Financial Statements filed as part of this
report are listed on Page F-1.
(a)(2) Financial Statements Schedules: Financial statement schedules filed
as part of this report are listed in the Index on page F-1. All other
schedules are omitted as inapplicable or because the required
information is included in the financial statements or notes thereto.
(a)(3) Exhibits: The exhibits required by Item 601 of Regulation S-K and
filed herewith are listed in the Exhibit Index that follows the
Financial Statements and immediately precedes the exhibits filed.
THE COMPANY, UPON REQUEST OF A REGISTERED SHAREHOLDER, WILL
PROVIDE THE EXHIBITS THAT ARE LISTED IN THIS ITEM 14. WRITTEN
REQUESTS FOR SUCH EXHIBITS SHOULD BE DIRECTED TO STOCKHOLDER
RELATIONS, US SERVIS, INC., 220 DAVIDSON AVENUE, SOMERSET,
NEW JERSEY 08873.
(b) Reports on Form 8-K: No report on Form 8K was filed during the final
quarter of the year ended March 31, 1998.
-29-
<PAGE>
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act, of 1934, the registrant has duly caused this report to be
signed on behalf of the undersigned, thereunto duly authorized.
Dated: June 29, 1998 US SERVIS, INC.
By: /s/ Graham O. King
_______________________________________
Graham O. King, Chief Executive Officer
Pursuant to the requirements of the Securities and Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
/s/ Graham O. King Chairman of the Board June 29, 1998
- -----------------------
Graham O. King
/s/ James A. Pesce President and Director June 29, 1998
- -----------------------
James A. Pesce
/s/ S. M. Caravetta Director June 29, 1998
- -----------------------
S. M. Caravetta
/s/ Robert E. Van Metre Principal Accounting Officer June 29, 1998
- -----------------------
Robert E. Van Metre
/s/ Stanford J. Goldblatt Director June 29, 1998
- -------------------------
Stanford J. Goldblatt
/s/ Robert E. King Director June 29, 1998
- -----------------------
Robert E. King
/s/ Robert C. Bowers Director June 29, 1998
- -----------------------
Robert C. Bowers
/s/ Frederick R. Blume Director June 29, 1998
- -----------------------
Frederick R. Blume
/s/ James E. Cowie Director June 29, 1998
- -----------------------
James E. Cowie
-30-
<PAGE>
<TABLE>
<CAPTION>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<S> <C>
Independent Auditors' Report F-2
Financial Statements:
Consolidated Balance Sheets at March 31, 1998 and 1997 F-3
Consolidated Statements of Operations for the Years Ended
March 31, 1998, 1997, and 1996 F-4
Consolidated Statements of Changes in Shareholders' Equity for the
Years Ended March 31, 1998, 1997, and 1996 F-5
Consolidated Statements of Cash Flows for the Years Ended
March 31, 1998, 1997, and 1996 F-6 to F-7
Notes to Consolidated Financial Statements F-8 to F-19
Schedules:
VI - Valuation accounts F-20
All other schedules are omitted because they are not applicable or the required
information is shown in the consolidated financial statements or notes thereto.
</TABLE>
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Shareholders of
US Servis, Inc.
We have audited the consolidated balance sheets of US Servis, Inc. and
subsidiaries as of March 31, 1998 and 1997, and the related consolidated
statements of operations, changes in shareholders' equity and cash flows for
each of the three years in the period ended March 31, 1998. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, based on our audits, the consolidated financial statements
referred to above present fairly, in all material respects, the consolidated
financial position of US Servis, Inc. and subsidiaries at March 31, 1998 and
1997, and the consolidated results of their operations and cash flows for each
of the three years in the period ended March 31, 1998, in conformity with
generally accepted accounting principles.
/s/ Wiss & Company
-----------------------------
WISS & COMPANY, LLP
Livingston, New Jersey
June 2, 1998
F-2
<PAGE>
<TABLE>
<CAPTION>
US SERVIS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
March 31,
-------------------------
ASSETS 1998 1997
---------- ----------
<S> <C> <C>
CURRENT ASSETS:
Cash and equivalents $4,852,000 $8,063,000
Certificate of deposit 382,000 300,000
Accounts receivable:
Billed, less allowance for doubtful accounts of
$690,000 and $464,000 5,985,000 4,092,000
Unbilled 2,157,000 1,387,000
Prepaid and refundable income taxes 14,000 41,000
Prepaid expenses and other current assets 493,000 838,000
---------- ----------
Total Current Assets 13,883,000 14,721,000
---------- ----------
PROPERTY AND EQUIPMENT 1,764,000 1,763,000
---------- ----------
OTHER ASSETS:
Software technology, purchased and developed, less
accumulated amortization of $699,000 and $481,000 288,000 322,000
Goodwill, less accumulated amortization of $485,000
and $387,000 3,066,000 3,164,000
Accounts receivable 170,000 -
Other 693,000 769,000
---------- ----------
Total Other Assets 4,217,000 4,255,000
---------- ----------
$19,864,000 $20,739,000
---------- ----------
---------- ----------
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $748,000 $1,414,000
Accrued payroll and benefits 838,000 1,015,000
Current portion of accrued restructuring charges 289,000 696,000
Accrued expenses for use of trade name 62,000 62,000
Other accrued expenses 977,000 995,000
Capital lease obligation - 263,000
Deferred income 179,000 439,000
Other current liabilities 285,000 325,000
---------- ----------
Total Current Liabilities 3,378,000 5,209,000
---------- ----------
LONG-TERM LIABILITIES -
Accrued restructuring charges - net of current portion 196,000 369,000
---------- ----------
COMMITMENTS AND CONTINGENCIES
SHAREHOLDERS' EQUITY:
Convertible preferred stock $0.01 par value; 10,000,000
shares authorized; 2,500,000 shares issued (liquidation
preference $11,802,000) 25,000 25,000
Common stock $.01 par value; 30,000,000 shares authorized;
6,372,000 and 6,367,000 shares issued 64,000 64,000
Capital in excess of par value 24,872,000 24,865,000
Retained earnings (deficit) (8,077,000) (8,805,000)
Subscription receivable (140,000) (140,000)
Note receivable - related party (395,000) (789,000)
---------- ----------
16,349,000 15,220,000
Less: Treasury stock at cost, 15,700 shares (59,000) (59,000)
---------- ----------
Total Shareholders' Equity 16,290,000 15,161,000
---------- ----------
$19,864,000 $20,739,000
---------- ----------
---------- ----------
</TABLE>
See accompanying notes to consolidated financial statements.
F-3
<PAGE>
<TABLE>
<CAPTION>
US SERVIS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
Year Ended March 31,
-----------------------------------------
1998 1997 1996
----------- ----------- -----------
<S> <C> <C> <C>
REVENUES:
Service fees $26,645,000 $21,001,000 $15,325,000
Software license fees 676,000 470,000 409,000
Sales of equipment 33,000 169,000 306,000
Interest and other 253,000 369,000 205,000
----------- ----------- -----------
27,607,000 22,009,000 16,245,000
----------- ----------- -----------
EXPENSES:
Cost of services 18,947,000 15,232,000 11,116,000
Cost of equipment sales 11,000 96,000 166,000
Research and development 1,478,000 1,872,000 2,466,000
Selling, general and administrative 5,885,000 7,246,000 8,159,000
Interest 99,000 166,000 114,000
Restructuring gains - - (590,000)
Loan impairment charge 394,000 436,000 -
----------- ----------- -----------
26,814,000 25,048,000 21,431,000
----------- ----------- -----------
INCOME (LOSS) BEFORE INCOME TAXES 793,000 (3,039,000) (5,186,000)
FEDERAL AND STATE INCOME (TAX) BENEFIT (65,000) - 1,280,000
----------- ----------- -----------
NET INCOME (LOSS) $728,000 $(3,039,000) $(3,906,000)
----------- ----------- -----------
----------- ----------- -----------
BASIC AND DILUTED LOSS PER COMMON SHARE $(0.03) $(0.59) $(0.66)
----------- ----------- -----------
----------- ----------- -----------
</TABLE>
See accompanying notes to consolidated financial statements.
F-4
<PAGE>
<TABLE>
<CAPTION>
US SERVIS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
Preferred Stock Common Stock Capital in
--------------------- --------------------- Excess of
Shares Par Value Shares Par Value Par Value
--------- ----------- --------- ---------- -----------
<S> <C> <C> <C> <C> <C>
BALANCE, MARCH 31, 1995 - $ - 6,257,000 63,000 $14,664,000
YEAR ENDED MARCH 31, 1996:
Amortization of officer stock
compensation - - - - -
Shares issued in accordance with
amended plan of merger - - 55,000 - 200,000
Accretion equal to accrued dividends
on redeemable preferred stock - - - - -
Net loss - - - - -
--------- ----------- --------- ---------- -----------
BALANCE, MARCH 31, 1996 - - 6,312,000 63,000 14,864,000
YEAR ENDED MARCH 31, 1997:
Shares issued under contractual
obligation - - 55,000 1,000 149,000
Reclassification of Series A preferred
stock as a result of the elimination
of the redemption provision 1,500,000 15,000 - - 5,891,000
Shares issued for cash, net of costs 1,000,000 10,000 - - 3,961,000
Reversal of accreted dividends - - - - -
Fair market adjustment of collateral - - - - -
Net loss - - - - -
--------- ----------- --------- ---------- -----------
BALANCE, MARCH 31, 1997 2,500,000 25,000 6,367,000 64,000 24,865,000
YEAR ENDED MARCH 31, 1998:
Issuance of common stock upon
exercise of options - - 5,000 - 7,000
Fair value adjustment of collateral - - - - -
Net income - - - - -
--------- ----------- --------- ---------- -----------
BALANCE, MARCH 31, 1998 2,500,000 $ 25,000 6,372,000 $ 64,000 $24,872,000
--------- ----------- --------- ---------- -----------
--------- ----------- --------- ---------- -----------
F-5
<PAGE>
Retained Note
Unearned Earnings Subscription Receivable- Treasury
Compensation (Deficit) Receivable Related Party Stock
------------ ------------ ------------ ------------- ----------
BALANCE, MARCH 31, 1995 $(742,000) $(1,860,000) $ (140,000) $(1,225,000) $ (59,000)
YEAR ENDED MARCH 31, 1996:
Amortization of officer stock
compensation 742,000 - - - -
Shares issued in accordance with
amended plan of merger - - - - -
Accretion equal to accrued dividends
on redeemable preferred stock - (228,000) - - -
Net loss - (3,906,000) - - -
------------ ------------ ------------ ------------- ----------
BALANCE, MARCH 31, 1996 - (5,994,000) (140,000) (1,225,000) (59,000)
YEAR ENDED MARCH 31, 1997:
Shares issued under contractual
obligation - - - - -
Reclassification of Series A preferred
stock as a result of the elimination
of the redemption provision - - - - -
Shares issued for cash, net of costs - - - - -
Reversal of accreted dividends - 228,000 - - -
Fair market adjustment of collateral - - - 436,000 -
Net loss - (3,039,000) - - -
------------ ------------ ------------ ------------- ----------
BALANCE, MARCH 31, 1997 - (8,805,000) (140,000) (789,000) (59,000)
YEAR ENDED MARCH 31, 1998:
Issuance of common stock upon
exercise of options - - - - -
Fair value adjustment of collateral - - - 394,000 -
Net income - 728,000 - - -
------------ ------------ ------------ ------------- ----------
BALANCE, MARCH 31, 1998 $ - (8,077,000) $(140,000) $ (395,000) $(59,000)
------------ ------------ ------------ ------------- ----------
------------ ------------ ------------ ------------- ----------
</TABLE>
See accompanying notes to consolidated financial statements.
F-5A
<PAGE>
<TABLE>
<CAPTION>
US SERVIS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Year Ended March 31,
---------------------------------------
1998 1997 1996
-------- ----------- ------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $728,000 $(3,039,000) $(3,906,000)
Adjustments to reconcile net income (loss) to net
cash flows from operating activities:
Depreciation and amortization of
property and equipment 640,000 639,000 521,000
Amortization of software technology 218,000 189,000 129,000
Amortization of goodwill 98,000 98,000 130,000
Amortization of costs of issuing preferred
stock - 30,000 12,000
Other - - (11,000)
Provision for losses on accounts receivable 226,000 96,000 320,000
Deferred income taxes - 62,000 1,024,000
Compensation earned under employment
agreement - - 742,000
Fair value adjustment of collateral held for
note receivable from related party 394,000 436,000 -
Changes in operating assets and liabilities:
Accounts receivable, billed (2,119,000) (1,630,000) (11,000)
Accounts receivable, unbilled (770,000) (234,000) -
Notes receivable - 190,000 277,000
Prepaid and refundable income taxes 27,000 2,302,000 (343,000)
Prepaid expenses and other current
assets 345,000 (251,000) (6,000)
Other assets and long-term
accounts receivable (94,000) (415,000) -
Accounts payable (666,000) 780,000 104,000
Accrued payroll and benefits (177,000) 291,000 157,000
Accrued restructuring charges (580,000) (803,000) (1,566,000)
Other accrued expenses (18,000) 190,000 207,000
Accrued expenses for use of trade name - (192,000) -
Deferred income (260,000) 197,000 (409,000)
Other current liabilities (40,000) (85,000) 239,000
----------- ----------- -----------
Net cash flows from operating
activities (2,048,000) (1,149,000) (2,390,000)
----------- ----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment (646,000) (898,000) (346,000)
Proceeds from sale of equipment 5,000 25,000 -
Purchase of certificate of deposit (82,000) - (300,000)
Purchase of software technology (184,000) (192,000) (158,000)
----------- ----------- -----------
Net cash flows from investing
activities (907,000) (1,065,000) (804,000)
----------- ----------- -----------
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE>
<TABLE>
<CAPTION>
US SERVIS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Year Ended March 31,
---------------------------------------
1998 1997 1996
-------- ----------- ------------
<S> <C> <C> <C>
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuances of preferred stock, less
related expenses $ - $ 3,965,000 $5,872,000
Issuance of common stock upon exercise
of warrants 7,000
Principal payment on capital lease obligation (263,000) (234,000) (253,000)
---------- ---------- ----------
Net cash flows from financing activities (256,000) 3,731,000 5,619,000
---------- ---------- ----------
NET CHANGE IN CASH AND EQUIVALENTS (3,211,000) 1,517,000 2,425,000
CASH AND EQUIVALENTS, BEGINNING OF YEAR 8,063,000 6,546,000 4,121,000
---------- ---------- ----------
CASH AND EQUIVALENTS, END OF YEAR $4,852,000 $8,063,000 $6,546,000
---------- ---------- ----------
---------- ---------- ----------
SUPPLEMENTAL CASH FLOW INFORMATION:
Interest paid $36,000 $166,000 $114,000
---------- ---------- ----------
---------- ---------- ----------
Income taxes (paid) refunded $(31,000) $2,399,000 $1,952,000
---------- ---------- ----------
---------- ---------- ----------
Noncash financing activity:
Reclassification of Series A preferred stock
as a result of the elimination of the
redemption provision $ - $5,906,000 $ -
---------- ---------- ----------
---------- ---------- ----------
Value assigned to goodwill relating to shares of
common stock for prior year business
acquisition $ - $ - $ 200,000
---------- ---------- ----------
---------- ---------- ----------
Accretion (reversal) of dividends on
redeemable preferred stock $ - $ (228,000) $ 228,000
---------- ---------- ----------
---------- ---------- ----------
Stock issued to customer under contractual
agreement $ - $ 150,000 $ -
---------- ---------- ----------
---------- ---------- ----------
</TABLE>
See accompanying notes to consolidated financial statements.
F-7
<PAGE>
US SERVIS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
BASIS OF PRESENTATION - The consolidated financial statements include all
of the accounts of US Servis, Inc. and its wholly-owned subsidiaries
(collectively, the "Company"). All significant intercompany transactions
have been eliminated.
NATURE OF THE BUSINESS - The Company is a provider of outsourced business
and information management services to physicians, physician networks,
hospitals and ambulatory care centers associated with integrated delivery
systems. The Company's principal focus is providing billing and accounts
receivement management services. The Company, through a strategic
alliance, has expanded its product offerings to include the implementation
of electronic medical records systems. The Company has also historically
been a provider of certain third party administrative services to a managed
care organization and of clinical information systems products to
hospitals. The Company is phasing out of these activities. (See Notes 2
and 9).
REVENUE RECOGNITION - Revenues are recognized under services and equipment
agreements as follows:
- Fees for the Company's services are primarily based on a percentage of
net collections on clients' patient accounts and revenue is recognized
as such services are performed. Accounts receivable, billed,
represents amounts invoiced to clients. Accounts receivable,
unbilled, represents fees recognized for services rendered, but not
yet invoiced and is based upon the Company's estimate of fees that
will be invoiced when collections on clients' patient accounts are
received.
- Revenues from other service agreements and hardware and software sales
are recognized when the services are rendered or the hardware and
software are installed and accepted. If the agreement provides for
installment payments on the hardware or software, the present value of
the amount to be received is recognized as revenue.
ESTIMATES AND UNCERTAINTIES - The preparation of financial statements in
conformity with generally accepted accounting principles requires
management to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements and the reported
amounts of revenues and expenses during the reporting period. Actual
results, as determined at a later date, could differ from those estimates.
F-8
<PAGE>
US SERVIS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FINANCIAL INSTRUMENTS - Financial instruments include cash and equivalents,
certificates of deposit, accounts receivable, other assets, accounts
payable, accrued expenses and capital lease obligations. The amounts
reported for financial instruments are considered to be reasonable
approximations of their fair values. The fair value estimates presented
herein were based on market information available to management. The use
of different market assumptions and/or estimation methodologies could have
a material effect on the estimated fair value amounts.
CONCENTRATION OF CREDIT RISKS - The Company's accounts receivable are
principally from hospitals and physician networks located throughout the
U.S. (see Note 9 as to its major customers).
The Company maintains its cash balances in several financial institutions
which in some instances exceed federally insured limits.
CASH EQUIVALENTS - The Company considers all highly liquid debt instruments
with an original maturity of three months or less when purchased, to be
cash equivalents.
PROPERTY AND EQUIPMENT - Property and equipment are stated at cost.
Depreciation expense generally is provided by the straight-line method over
the estimated lives of the assets, 3 to 7 years for computer equipment, 5
to 8 years for furniture and fixtures, and 7 to 10 years or the lease term,
if shorter, for leasehold improvements.
SOFTWARE TECHNOLOGY - Costs associated with the development of software are
expensed as incurred. The expenses amounted to $1,478,000, $1,872,000, and
$2,466,000 for the years ended March 31, 1998, 1997 and 1996, respectively.
Purchased software technology is stated at cost, and is amortized over a 3
to 7 year period using the straight-line method.
GOODWILL - Goodwill consists of the excess of cost over net assets of an
acquired business and is being amortized over 40 years on the straight-line
method.
EARNINGS PER SHARE - Statement of Financial Accounting Standards (SFAS No.
128) "Earnings per Share" was issued in February 1997, and is effective for
financial statements issued for periods ending after December 31, 1997.
SFAS 128 requires that earnings per share be presented more in line with
earnings per share standards of other countries. The Company adopted SFAS
128 for the year ended March 31, 1998. SFAS 128 replaces the presentation
of primary and fully diluted earnings per share. Basic earnings per share
is calculated based on the weighted average number of common
F-9
<PAGE>
US SERVIS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
shares outstanding during the period and excludes all dilution. Diluted
earnings per share is calculated by using the weighted average number of
common shares outstanding, while also giving effect to all dilutive
potential common shares that were outstanding during the period. Prior
period amounts have been restated to conform to the requirements of SFAS
128.
Net income (loss) is adjusted by accretions equal to accrued dividends on
the Company's preferred stock.
STOCK-BASED COMPENSATION - The Company has elected to follow Accounting
Principles Board Opinion No. 25, ACCOUNTING FOR STOCK ISSUED TO
EMPLOYEES (APB 25) and related interpretations in accounting for its
employee stock options. Under APB 25, because the exercise price of
employee stock options equals the market price of the underlying stock
on the date of grant, no compensation expense is recorded. The Company
has adopted the disclosure-only provisions of Statement of Financial
Accounting Standards No. 123 (SFAS 123), ACCOUNTING FOR STOCK-BASED
COMPENSATION.
DEFINED CONTRIBUTION PROFIT SHARING PLAN - The Company has a defined
contribution 401(k) plan covering substantially all its employees.
Employees who have one year of service are eligible to receive matching
contributions from the Company. Company contributions are based on a
percentage of employees' annual deferrals and are charged against income as
incurred. Contributions were approximately $113,000, $92,000 and $71,000
in fiscal 1998, 1997 and 1996, respectively.
RECLASSIFICATION - Certain amounts in prior years have been reclassified
for comparability.
NOTE 2 - RESTRUCTURING CHARGES (Gains):
During 1995, the Company recorded a restructuring charge of $6,800,000 for
costs associated with termination of employment of the former Chairman of
the Board, downsizing of operations, consolidating facilities,
discontinuance of the Company's in-patient point-of-care systems and
refocusing on financial management services.
During 1996, the Company substantially completed its restructuring program
and the final costs varied from the original estimates for certain items.
As a result, the Company recorded a net credit of $590,000 to reduce its
restructuring accrual. During 1998 and 1997, the estimate of the Company's
restructuring was reevaluated, and no additional charge or credit was
required.
F-10
<PAGE>
US SERVIS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The individual components of the 1996 credit are summarized as follows:
<TABLE>
<CAPTION>
<S> <C>
Consolidation and close down of facilities $ (920,000)
Legal, consulting and related reserves (125,000)
Termination costs related to the former Chairman (223,000)
Severance payments to employees 678,000
-----------
$ (590,000)
-----------
</TABLE>
At March 31, 1998, the non-current portion of accrued restructuring
charges matures as follows:
<TABLE>
<CAPTION>
Year Ending March 31,
---------------------
<S> <C>
2000 $ 66,000
2001 10,000
2002 10,000
2003 10,000
2004 and thereafter 100,000
---------
$ 196,000
---------
</TABLE>
NOTE 3 - NOTE RECEIVABLE- RELATED PARTY:
As a result of the Company's guarantee of the price of its common stock in
the acquisition of AISCorp., the Company, in December 1993, issued 221,000
shares of its common stock and loaned $1,225,000 to the former owner. The
loan bears interest at 5.1%, and was collateralized by 328,000 shares of
the Company's common stock. Principal and interest are payable only from
the proceeds of the sale of the collateral. Accordingly, the loan is
reported as a reduction of the Company's shareholders' equity. Any unsold
common stock at the due date of the loan will revert to the Company in
exchange for cancellation of the then remaining loan balance and accrued
interest. On June 26, 1996, the Company entered into an agreement to
change the due date of the loan to the earlier of December 13, 2000 or
ninety days after the price of the Company's stock reaches a per share
price of $8.50 for five consecutive trading days. The Company also agreed
to reduce the collateral for the loan by 75,000 shares and an additional
50,000 shares when the per share price of the Company's Common Stock
reaches certain price levels.
F-11
<PAGE>
US SERVIS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 4 - PROPERTY AND EQUIPMENT:
Property and equipment consist of:
<TABLE>
<CAPTION>
March 31,
----------------------
1998 1997
---------- ----------
<S> <C> <C>
Property and equipment $4,644,000 $4,053,000
Leasehold improvements 363,000 313,000
---------- ----------
5,007,000 4,366,000
Less: Accumulated depreciation
and amortization 3,243,000 2,603,000
---------- ----------
$1,764,000 $1,763,000
---------- ----------
</TABLE>
Depreciation and amortization expense was $640,000, $639,000 and $521,000
for the years ended March 31, 1998, 1997, and 1996, respectively, and are
included in selling, general and administrative expenses.
NOTE 5 - INCOME TAXES:
A summary of current and deferred income taxes included in the statements
of operation is as follows:
<TABLE>
<CAPTION>
Year Ended March 31,
---------------------------------------
1998 1997 1996
-------- --------- ------------
<S> <C> <C> <C>
Current:
Federal $ 35,000 $ - $(2,349,000)
State and local 30,000 - 45,000
-------- --------- ------------
65,000 - (2,304,000)
-------- --------- ------------
Deferred:
Federal - - 1,024,000
State and local - - -
-------- --------- ------------
- - 1,024,000
-------- --------- ------------
Provision for income taxes $ 65,000 $ - $(1,280,000)
-------- --------- ------------
</TABLE>
F-12
<PAGE>
US SERVIS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The total income taxes are different than the amounts computed by
applying the U.S. statutory federal income tax rate of 34%. The
differences are summarized as follows:
<TABLE>
<CAPTION>
Year Ended March 31,
---------------------------------------
1998 1997 1996
-------- ----------- ------------
<S> <C> <C> <C>
Income taxes at statutory rate $246,000 $(1,033,000) $(1,763,000)
Effect of losses without a current
year tax benefit - 1,185,000 237,000
Alternative minimum tax - - 156,000
State and local taxes, net of
federal benefit (1,000) (210,000) 30,000
Write off and amortization of nondeductible
technology costs and goodwill, net of
realization of deferred tax liability 39,000 33,000 44,000
Nondeductible business expenses and other 20,000 25,000 16,000
Utilization of prior net operating losses (304,000) - -
Results of prior year tax
examination and minimum taxes 65,000 - -
-------- ----------- ------------
Provision for income taxes $65,000 $ - $(1,280,000)
-------- ---------- ------------
The significant components of the Company's net deferred tax assets are
summarized below:
Year Ended March 31,
---------------------------------------
1998 1997 1996
-------- ----------- ------------
Accrued restructuring charges $194,000 $406,000 $747,000
Allowance for doubtful account 276,000 185,000 190,000
Accrued vacation and other 116,000 123,000 177,000
Depreciation 64,000 134,000 -
Writedown of stockholder note receivable 332,000 174,000 -
Unbilled revenue (863,000) (555,000) (461,000)
Alternative minimum tax credit - - 271,000
Net operating loss tax carryforwards 2,618,000 3,684,000 2,814,000
----------- ---------- ---------
2,737,000 4,151,000 3,738,000
Valuation allowance 2,737,000 4,151,000 3,676,000
----------- ---------- ---------
$ - $ - $62,000
----------- ---------- ---------
</TABLE>
F-13
<PAGE>
US SERVIS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
A valuation allowance is provided when it is more likely than not that some
portion of the deferred tax asset will not be realized. The Company has
determined that a full valuation allowance is appropriate at March 31, 1998
and 1997, except to the extent of refundable income taxes.
At March 31, 1998, AISCorp. and US Servis, Inc. ("USS") had Federal net
operating loss carryforwards of approximately $8,085,000 and $740,000,
respectively which expire beginning in fiscal 2001. Of these losses,
$5,292,000 is limited by the provisions of Section 382 of the Internal
Revenue Code due to a more than 50% change in ownership. Following such a
change, the utilization of tax loss carryforwards is limited to the value
of the acquired Company on the date of such change, multiplied by the
Federal long-term tax exempt rate (the "annual limitation"). To the extent
amounts available under the annual limitation are not used, they may be
carried forward for the remainder of 15 years from the date the losses were
originally incurred. As a result of the change in ownership, use of net
operating losses will be limited to approximately $225,000 per year for
AISCorp. and $320,000 for USS, subject to certain additional limitations.
NOTE 6 - COMMITMENTS AND CONTINGENCIES:
LEASES - The annual minimum rental commitments under the terms of the
Company's operating leases that have initial or remaining lease terms in
excess of one year at March 31, 1998 are as follows:
<TABLE>
<CAPTION>
Year Ending March 31,
---------------------
<S> <C>
1999 $ 928,000
2000 795,000
2001 687,000
2002 618,000
2003 611,000
2004 and thereafter 457,000
----------
Total future minimum lease payments $4,096,000
----------
</TABLE>
Net rental expenses for office space amounted to $787,000, $877,000 and
$671,000 for the years ended March 31, 1998, 1997, and 1996, respectively.
EMPLOYMENT AGREEMENTS - The Company has an employment agreement with an
officer through March 31, 1999. Under this agreement, minimum compensation
payable is $239,000 for 1999.
F-14
<PAGE>
US SERVIS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
In the event of the death of one other officer during the term of
employment, the Company will be required to pay $100,000 per annum for a
period of ten years.
CONTINGENCIES - The Company is contingently liable for approximately
$883,000 payable over nine years for the continued use of certain trade
names.
The Company is subject to a certain lawsuit with a customer which arose in
the course of business. In the opinion of management, adequate provision
has been made for any losses which may occur in connection with this
lawsuit.
As part of the acquisition of a subsidiary, the Company has guaranteed up
to $661,000 of certain bank debt of the former president of the subsidiary.
NOTE 7 - CONVERTIBLE PREFERRED STOCK:
On September 30, 1996, the Company issued through a private placement,
1,000,000 shares of Series B Convertible Preferred Stock, par value $0.01
per share, for a purchase price of $4,000,000. Concurrent with the
issuance of the Series B Convertible Preferred Stock, the Series A
Convertible Preferred stockholders agreed to eliminate the redemption
provision that was incorporated into the provisions of the Series A
Preferred Stock.
On October 12, 1995, the Company issued, through a private placement, (i)
1,500,000 shares of Series A Convertible Preferred Stock, par value $0.01
per share, (ii) warrants to purchase up to 390,000 shares of the Company's
common stock at an exercise price of $0.10 per share, and (iii) warrants to
purchase up to 198,000 shares of the Company's common stock at an exercise
price of $3.50 per share, for an aggregate purchase price of $6,000,000.
Dividends on the Convertible Preferred Stock accrue at a rate equal to 8%
per annum, compounded quarterly. If not earlier paid, preferred dividends
are payable on i) conversion or ii) dissolution of the Company.
At any time, the preferred stock is convertible at the option of the
holders into an equal number of common shares and under certain
circumstances the Company may require conversion. In the event of the
Company's liquidation, the holders of the Convertible Preferred Stock are
entitled to $4.00 per share (aggregating $10,000,000) plus all accumulated
and unpaid dividends.
F-15
<PAGE>
US SERVIS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 8 - SHAREHOLDERS' EQUITY:
OPTIONS - The Company has an incentive stock option plan (the "1986 Plan")
pursuant to which 10,000 options remain outstanding at March 31, 1998.
Options granted pursuant to the Plan are nontransferable by the optionees
during their lifetimes, expire if not exercised within ten years from the
date of the grant, and, under certain circumstances set forth in the Plan,
may be exercised within three months following termination of employment.
Options are granted to key employees as determined by the Board of
Directors at not less than the fair market value of the shares underlying
the option on the date the option is granted.
In 1993, as amended in 1994, the Board of Directors and the Company's
shareholders approved an incentive stock option plan (the "1993 Plan") to
grant 1,400,000 shares of the Company's common stock. The terms of the
1993 Plan are principally the same as those of the 1986 Plan.
Outstanding options at March 31, 1998 are as follows:
<TABLE>
<CAPTION>
Shares Exercise Price Expiration
Issuable Per Share Date
-------- -------------- --------------
<S> <C> <C> <C>
Non Qualified Options Issued to
Chairman of the Board of
Directors in October 1994 (1) 800,000 $1.3125 October 2004
Nonemployee director in October
1994, options for 55,000
shares vested and options for
10,000 shares vest in fiscal 65,000 $3.00-$5.00 October 1999
1999.
Nonemployee directors in January
1995, options for 60,000
shares vested and 20,000
shares vesting annually 100,000 $3.50 January 2005
through January 2000
Non-Qualified Options issued to
former President and Chief
Operating Officer of AISCorp.
in June 1991 (2) 75,000 $4.00 June 2001
---------
1,040,000
$1.3125 - September 1998 -
Incentive options 1,161,000 $4.00 July 2007
---------
2,201,000
---------
</TABLE>
(1) 400,000 options vested October 1995, the remaining 400,000 options
vest, 133,333 on July 23, 1998 and July 23, 1999 and 133,334 on
July 23, 2000 or when the Company's stock has closed at $5.00 or
more per share on at least 30 of the last 40 business days, or
upon a change in control.
(2) All options are exercisable.
F-16
<PAGE>
US SERVIS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Options under the Incentive Stock Option Plans are summarized as follows:
<TABLE>
<CAPTION>
Year Ended March 31,
----------------------------------------
1998 1997 1996
------ ------ ------
<S> <C> <C> <C>
Options outstanding at
beginning of year 898,000 1,136,000 989,000
Options granted 574,000 285,000 405,000
Options expired (306,000) (423,000) (243,000)
Options exercised (5,000) - -
Options transferred - (100,000) (15,000)
--------------- ----------- -----------
Options outstanding at
end of year 1,161,000 898,000 1,136,000
--------------- ----------- -----------
Option price per share $1.3125 - $4.00 $3.00-$5.00 $3.00-$7.00
--------------- ----------- -----------
Options exercisable:
Number of shares 322,883 387,000 185,000
--------------- ----------- -----------
</TABLE>
At March 31, 1998, options to purchase 429,000 shares were available for
grant.
On July 23, 1997, the Board of Directors completed a restructuring of the
management compensation program of the Company in order to retain key
employees and to provide appropriate employee incentives. As part of the
compensation adjustment, all outstanding options for present employees were
repriced to the then current market price ($1.3125) and certain senior
level management and other key employees were granted additional options,
not in excess of normal grants. To induce the Board of Directors to
approve the restructuring plan, the Chairman of the Board of Directors
voluntarily agreed to cancel options to purchase 200,000 shares of Common
Stock under his non-qualified option agreement.
On October 30, 1997, to correct an alleged technical difficulty in the July
23, 1997 repricing of stock options, all present employee options issued
under the 1986 and 1993 plans were canceled and reissued under the 1993
plan with no changes in any provisions.
NOTE 9 - MAJOR CUSTOMERS:
Revenues from customers in excess of 10% of total revenues were as follows:
<TABLE>
<CAPTION>
Year Ended March 31,
---------------------
Customer 1998 1997 1996
-------- ---- ---- ----
<S> <C> <C> <C>
University of Medicine & Dentistry, Newark, NJ 9.4% 11.6% 15.7%
MetroPlus Health Plan 19.4 21.2 3.6
</TABLE>
F-17
<PAGE>
US SERVIS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
During fiscal 1997, the Company experienced material difficulties at its
largest client, MetroPlus, a public Health Maintenance Organization ("HMO")
serving the New York City Medicaid population, which was the Company's only
HMO. During fiscal 1998, the Company filed suit to enjoin MetroPlus from
terminating its contract in violation of its terms and for payment under
the contract. In November 1997, this lawsuit, together with a related
lawsuit by a subcontractor of the Company, was completely resolved.
MetroPlus agreed to pay the Company all sums due under the contract and the
parties agreed to a termination of the contract as of February 28, 1998.
Since the date of settlement, all litigation relating to the MetroPlus
dispute has been dismissed, the Company has completed all tasks for
MetroPlus under its contract and made all necessary payments under its
subcontracts, and MetroPlus has made all necessary payments to the Company.
NOTE 10 - STOCK BASED COMPENSATION:
As required by SFAS 123, the Company has determined the pro forma
information as if the Company had accounted for stock options granted under
the fair value method of SFAS 123. The Black Scholes option pricing model
was used with the following weighted-average assumptions; risk-free rate
of 5%; expected common stock market price volatility factor of 1.03, .56
and .56 in March 31, 1998, 1997 and 1996, respectively; and an expected
life of the options of five years. The fair value of options granted
ranged from $1.325 to $5.00. The pro forma effect on net loss and net
loss per share would have been as follows:
<TABLE>
<CAPTION>
1998 1997 1996
-------- ----------- -------------
<S> <C> <C> <C>
Net income (loss):
As reported $728,000 $(3,039,000) $(3,906,000)
Pro forma $325,000 $(3,202,000) $(4,164,000)
Basic and diluted
per share:
As reported $(0.03) $(0.59) $(0.66)
Pro forma $(0.09) $(0.61) $(0.70)
</TABLE>
F-18
<PAGE>
US SERVIS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 11 - SUPPLEMENTAL DISCLOSURE OF LOSS PER SHARE:
<TABLE>
<CAPTION>
1998 1997 1996
--------- ----------- ----------
<S> <C> <C> <C>
Net income (loss): $ 728,000 $ (3,039,000) $(3,906,000)
Less dividends (898,000) (675,000) (228,000)
--------- ----------- ----------
Net loss available
to common stockholders $(170,000) $(3,714,000) $(4,134,000)
--------- ----------- ----------
Weighted average
shares outstanding 6,351,000 6,308,000 6,282,000
--------- ----------- ----------
Basic and diluted
loss per share $(0.03) $(0.59) $(0.66)
--------- ----------- ----------
</TABLE>
NOTE 12 - NEW ACCOUNTING STANDARD:
DISCLOSURE ABOUT SEGMENTS OF AN ENTERPRISE AND RELATED INFORMATION -
Statement of Financial Accounting Standards No. 131 (SFAS 131), "Disclosure
about Segments of an Enterprise and Related Information", was issued in
July 1997, and is effective for periods beginning after December 15, 1997.
SFAS 131 introduces a new model for segment reporting, called the
"management approach." The management approach is based on the way the
chief operating decision maker organizes segments and are based on product
and services, geography, legal structure, management structure - any manner
in which management desegregates a company. The management approach
replaces the notion of industry and geographic segments in current
Financial Accounting Standards Board standards. The Company intends to
adopt SFAS 131 in its fiscal 1999 financial statements.
ACCOUNTING FOR THE COSTS OF COMPUTER SOFTWARE DEVELOPED OR OBTAINED FOR
INTERNAL USE - In March 1998, the American Institute of Certified Public
Accountants issued Statement of Position 98-1 (SOP 98-1), "ACCOUNTING FOR
THE COSTS OF COMPUTER SOFTWARE DEVELOPED OR OBTAINED FOR INTERNAL USE",
which is effective for years beginning after December 15, 1998. SOP 98-1
requires certain costs related to the creation and acquisition of software
be capitalized. The Company intends to adopt SOP 98-1 in its fiscal 2000
financial statements. The Company does not expect the adoption of SOP 98-1
to have a material effect on the Company's financial statements.
F-19
<PAGE>
SCHEDULE VI
US SERVIS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
VALUATION ACCOUNTS
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
- ---------------------------------------------------------------------------------------------------------
Additions
Balance at Charged Balance at
Beginning of to Costs End of
Description Period and Expenses Deductions Period
----------- ------------ ------------ ----------- ----------
<S> <C> <C> <C> <C>
March 31, 1998 -
Allowance for doubtful accounts $464,000 $226,000 $ - $690,000
------------ ------------ ----------- ----------
March 31, 1997 -
Allowance for doubtful accounts $458,000 $ 96,000 $ 90,000 $464,000
------------ ------------ ----------- ----------
March 31, 1996 -
Allowance for doubtful accounts $206,000 $320,000 $ 68,000 $458,000
------------ ------------ ----------- ----------
</TABLE>
F-20
<PAGE>
EXHIBITS INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ---------- -----------
<S> <C>
3(1) By-Laws. (I)
3(2) Amended and Restated Certificate of
Incorporation of the Registrant. (XVII)
3(3) Certificate of Designation Relating to the
Series A Convertible Preferred Stock of the
Registrant. (XVII)
3(4) Certificate of Designation Relating to the
Series B Convertible Preferred Stock With a
Par Value of $.01 Per Share of US Servis,
Inc. (XIX)
3(5) Amendment to Certificate of Designation
Relating to the Series A Convertible
Preferred Stock With a Par Value of $.01 Per
Share of US Servis, Inc. (XIX)
4(1) Form of warrant to purchase in the aggregate
up to 390,000 shares of the Registrant's
Common Stock at an exercise price of $0.10
per share, such warrants issued October 12,
1995. (XV)
4(2) Form of warrant to purchase in the aggregate
up to 198,000 shares of the Registrant's
Common Stock at an exercise price of $3.50
per share, such warrants issued October 12,
1995. (XV)
10(1) 1986 Stock Option Agreement. (I)
10(2) Service Agreement between the Registrant and
Digital Equipment Corporation. (I)
10(3) Non-qualified Stock Option Agreement between
the Registrant and S.M. Caravetta, dated
February 10, 1990 and expiring February,
1995. (III)
10(4) Distribution/Sales Representation Agreement
by and between Baxter Healthcare Corporation
and MedTake Corp., dated as of October 1,
1990.(IV)
10(5) Letter Agreement by and among MedTake Corp.,
the Registrant, Salvatore M. Caravetta and
Baxter Healthcare Corporation, dated as of
October 1, 1990. (IV)
10(6) Guaranty of the Registrant in favor of
Baxter Healthcare Corporation, dated as of
October 1, 1990. (IV)
10(7) Complimentary Marketing Agreement between
International Business Machines Corporation
and the Registrant. (V)
<PAGE>
10(8) Asset Purchase Agreement and Plan of
Reorganization by and among Administrative
Information Systems Corporation, the
Registrant and Receivables Management Corp.,
dated as of June 14, 1991. (VI)
10(9) Registration Rights Agreement by and between
the Registrant and Administrative
Information Systems, Inc. (Misnamed in said
document as "Administrative Information
Services Corporation"), dated June 14,
1991. (VI)
10(10) Employment Agreement among Receivables
Management Corp. (renamed AISCorp.), the
Registrant and Stephen G. Sullivan, dated as
of June 14, 1991. (VI)
10(11) Option Registration Rights Agreement by and
between the Registrant and Stephen G.
Sullivan, dated June 14, 1991. (IV)
10(12) Employment Contract between the Registrant
and S.M. Caravetta. (VII)
10(13) Employment Contract between the Registrant
and James A. Pesce. (VII)
10(14) Agreement and Plan of Merger with Exhibits
by and among the Registrant, Vanco Business
Management, Inc. and David K. Vanco, dated as
of December 31, 1992. (VIII)
10(15) Employment Agreement, dated as of January 1,
1993, between Management-Data Service, Inc.,
the Registrant and David K. Vanco. (VIII)
10(16) Registration Rights Agreement between David K.
Vanco and the Registrant, dated as of
December 31, 1992. (VIII)
10(17) Guaranty dated March 5, 1993, given by the
Registrant to Harris Bank Roselle relating to
loans to David K. Vanco. (VIII)
10(18) Letter agreement between David K. Vanco and the
Registrant, dated March 5, 1993, relating to the
guaranty of notes, from David K. Vanco to Harris
Bank Roselle. (VIII)
10(19) Agreement of Merger with ACT/PC, dated
August 31, 1993. (IX)
10(20) Term Loan Agreement, dated as of December 13,
1993, between Stephen G. Sullivan and
Registrant. (X)
10(21) Guarantee Modification Agreement, dated as of
December 31, 1993, between Stephen G. Sullivan
and the Registrant. (X)
10(22) Escrow Agreement, dated as of December 13, 1993,
between Stephen G. Sullivan, Registrant and
Crummy Del Deo Griffinger & Vecchione. (X)
<PAGE>
10(23) Termination Agreement relating to the Baxter
Distribution/Sales Representation Agreement, dated
December 17, 1993. (X)
10(24) Amendment to Agreement and Plan of Merger between
the Registrant and Management-Data Services, Inc.,
dated April 8, 1994. (XI)
10(25) Amendment to Employment Agreement between David K.
Vanco and the Registrant, dated April 8, 1994. (XI)
10(26) Employment Agreement, dated as of October 12, 1994,
betwen the Registrant and Graham O. King. (XIII)
10(27) Option Agreement, dated as of October 12, 1994,
between the Registrant and Graham O. King. (XII)
10(28) Registration Agreement, dated as of October 12, 1994,
between the Registrant and Graham O. King. (XII)
10(29) Stockholder Agreement, dated as October 12, 1994,
between the Registrant and Graham O. King. (XII)
10(30) S.M. Caravetta Termination Agreement between S.M.
Caravetta and the Registrant, dated as of October 12,
1994, as amended. (XIII)
10(31) Letter of Intent, dated June 26, 1995, between the
Registrant and Frontenac VI Limited Partnership. (XIV)
10(32) Registrant's Amended 1993 Stock Option Plan. (XIV)
10(33) Registrant's Amended 1994 Stock Option Plan for Non-
Employee Directors. (XIV)
10(34) Series A Convertible Preferred Stock and Warrant
Purchase Agreement, dated July 18, 1995, by and among
the Registrant, a trust established for the benefit of
descendants of Robert E. King, Frontenac VI Limited
Partnership and Morgan Holland Fund II, L.P. (XV)
10(35) Promissory Note of Graham O. King, dated June 14, 1995,
payable to the Company. (XVI)
10(36) First and Second Amendments to Series A Convertible
Preferred Stock and Warrant Purchase Agreements dated
July 31, 1995 and October 10, 1995, respectively.
(XVIII)
10(37) Registration Agreement, dated October 12, 1995, by
and among the Registrant, a trust established for
the benefit of the descendants of Robert E. King,
Frontenac VI Limited Partnership and Morgan Holland
Fund II, L.P. (XV)
<PAGE>
10(38) Agreement for Administrative Services, dated
December 21, 1995, between New York Health and
Hospitals Corporation and the Registrant. (XVIII)
10(39) Series B Convertible Preferred Stock Purchase
Agreement among US Servis, Inc., and the
Purchasers named on Schedule 1 thereto, dated
as of September 30, 1996. (XIX)
10(40) First Amendment to Registration Rights Agreement
among U.S. Servis, Inc. and the Purchases
signatory thereto, dated September 30, 1996. (XIX)
10(41) Agreement for Services, dated December 31, 1996,
between University Physician Associates and
Registrant. (XX) 1998
10(42) Office Lease for 220 Davidson Avenue, Somerset,
New Jersey, dated October 9, 1996 between The
Mutual Life Insurance of New York and
US Servis, Inc.
</TABLE>
<PAGE>
NOTES TO EXHIBIT INDEX
NOTE NO. DESCRIPTION
(I) Incorporated by reference from the Form S-18 Registration
Statement of the Registrant, dated June 10, 1986.
(II) Incorporated by reference from Amendment No. 1, dated
September 6, 1986, to the Form S-18 Registration Statement
of the Registration.
(III) Incorporated by reference from the Registrant's Form 10-K,
dated June 18, 1990.
(IV) Incorporated by reference from the Registrant's Form 8-K,
dated October 1, 1990.
(V) Incorporated by reference from the Registrant's Form S-3,
Registration No. 33-39062, dated April 11, 1991.
(VI) Incorporated by reference from the Registrant's Form 8-K,
dated June 18, 1991.
(VII) Incorporated by reference from the Registrant's Form 10-K,
dated June 28, 1991.
(VIII) Incorporated by reference from the Registrant's Form 8-K,
dated March 9, 1993.
(IX) Incorporated by reference from the Registrant's Form 8-K,
dated September 15, 1993.
(X) Incorporated by reference from the Registrant's Form 8-K,
dated December 28, 1993.
(XI) Incorporated by reference from the Registrant's Form 8-K,
dated April 15, 1994.
(XII) Incorporated by reference from the Registrant's Form 8-K,
dated November 1, 1994.
(XIII) Incorporated by reference from the Registrant's Form 10-Q,
dated November 11, 1994.
(XIV) Incorporated by reference from the Registrant's Form 10-K,
dated June 26, 1995.
(XV) Incorporated by reference from the Registrant's Form
10-K/A, dated July 24, 1995.
(XVI) Incorporated by reference from the Registrant's Form 10-Q,
dated August 10, 1995.
(XVII) Incorporated by reference from the Registrant's Form 10-Q,
dated November 10, 1995.
(XVIII) Incorporated by reference from the Registrant's Form 10-Q,
dated August 13, 1996.
(XIX) Incorporated by reference from the Registrant's Form 8-K,
dated September 30, 1996.
(XX) Incorporated by reference from the Registrant's Form 10-Q,
dated February 12, 1997 as amended June 17, 1997.
<PAGE>
Exhibit 10.42
OFFICE LEASE
220 DAVIDSON AVENUE
SOMERSET, NEW JERSEY
BETWEEN
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
(LANDLORD)
AND
US SERVIS, INC.
(TENANT)
Dated: October 9, 1996
<PAGE>
TABLE OF CONTENTS
1. PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. ELECTRICITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2
<PAGE>
LEASE
THIS LEASE, made as of this _____ day of September, 1996, by and
between THE MUTAL LIFE INSURANCE COMPANY OF NEW YORK, with offices and a
principal place of business at 1740 Broadway, New York, New York 10019 (the
"Landlord") and US SERVIS, INC., a Delaware corporation with offices and a
principal place of business at 414 Eagle Rock Avenue, West Orange, New Jersey
07052 (the "Tenant").
W I T N E S S E T H :
WHEREAS, Landlord is the owner of the premises located at 220 Davidson
Avenue, Somerset, New Jersey (the "Property") upon which there is located a four
story building containing 162,206 rentable square feet (the "Building"); and
WHEREAS, Tenant wishes to lease from Landlord and Landlord wishes to
lease to Tenant 36,400 rentable square feet in the Building.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, and other good and valuable consideration, the receipt of which is
hereby acknowledged, Landlord and Tenant agree as follows:
1. PREMISES.
1.1 Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord a portion of the second floor in the Building, as shown
on the follow plan annexed hereto as SCHEDULE A and made a part
hereof (the "Premises"), together with the right of ingress and
egress to the Building and other amenities of the Building on
common with others. Landlord and Tenant hereby agree and
acknowledge that for all purposes of this Lease the Premises
contains 36,400 rentable square feet and the Building contains
162,206 rentable square feet.
2. TERM.
2.1 The Premises are leased for a term ("Term") which shall commence
on a date (the "Commencement Date") which shall be the earlier of:
1. the date of all of the conditions set forth in Section 6.4
are satisfied; or
2. the date Tenant shall occupy the Premises or any part
thereof for the purpose of conducting its business.
3
<PAGE>
2.2 The Term shall end at 12 o'clock midnight on December 31, 2003
(the "Expiration Date"), unless the Term is extended pursuant to the terms
hereof or the Term shall sooner terminate pursuant to any of the terms,
covenants or conditions of this Lease or pursuant to law.
2.3 As soon as practicable after the Commencement Date, Landlord
shall deliver to Tenant written notice confirming the Commencement Date and
the Expiration Date by returning to Landlord an executed copy of such notice
within five (5) business days of Tenant's receipt of such notice.
2.4 If the last day of the Term. of any renewal thereof falls on a
Sunday, this Lease shall expire at 12 o'clock midnight on ten preceding
Saturday unless it be a legal holiday in which case it shall expire at 12
o'clock midnight on ten preceding business day.
2.5 (a) Tenant shall have and is hereby given two (2) options to
renew and extend the TERM. for an additional period of five (5) years each.
Each renewal Term shall follow consecutively upon ten expiration of the
initial Term or upon the expiration of the prior renewal term, as the case
may be. During each renewal term all of the terms and conditions of this
Lease shall apply, except that the Fixed Rent during each renewal term shall
be the greater of (i) the Fixed Rent payable as of the day immediately prior
to the commencement of such renewal term, and (ii) the fair rental value of
the Premises (as hereinafter determined) as of the date which is ten months
prior to the commencement of the applicable renewal term.
(b) Tenant's option to renew the Term may be exercised only
by notice given by Tenant to Landlord at least twelve (12) months prior to
the expiration of the then current TERM. and such a notice shall designate
the portion of the Premises to be covered by such renewal, which portion
shall include either (i) all of the space leased by Tenant on the second
floor of the Building, or (ii) ten entire Premises. Failure to so exercise
within such period shall render any subsequent attempted exercise void and of
no effect, any principles of law to the contrary notwithstanding, Tenant
shall have no right to exercise its option to extend ten Term, and any
attempted exercise shall be void and of no effect, if: (A) the named Tenant
or any Successor Corporation (as defined in Section 12.11 hereof) is not in
occupancy of at least 75% of the rental square footage if the Premises at the
time of the commencement of the renewal term; or (B) there shall be an Event
of Default (as defined in Section 13.1) by Tenant at the time of the
attempted exercise or at any time after Tenant's attempted exercise of the
option and prior to the commencement of the applicable renewal term. Unless
otherwise elected by Tenant pursuant to this Section 2.5(b), Tenant's
exercise of a renewal option shall be payable by Tenant as Additional Rent
on the first of each month, starting January 1 of the applicable Operational
Year. If Landlord's Statement is furnished to Tenant after the commencement
of an Operational Year, Tenant shall pay to Landlord, on the first day of the
month immediately following submission of the Landlord's Statement, the
aggregated amount Tenant would have already paid to Landlord had Tenant been
paying one-twelfth (1/12th) of such Tenant's Projected Share on the first day
of each month during such Operational Year, and thereafter Tenant shall pay
on the first day of each month as Additional Rent, together with Fixed Rent,
one-twelfth (1/12th) of Tenant's Projected Share. Until Tenant shall
4
<PAGE>
receive a Landlord's Statement for any Operational Year, Tenant shall
continue to pay to Landlord an amount equal to one-twelfth (1/12th) of
Tenant's Projected Share as set forth in the most current Landlord's
Statement received by Tenant. As soon as reasonably possible, but in no event
later than 180 days after the expiration of the Base Operating Expense Year
and each Operational Year, Landlord shall furnish Tenant a written detailed
statement prepared by Landlord of the Cost of Operation and Maintenance
incurred for such Operational Year ("Landlord's Final Operating Statement").
3. RENT.
3.1. (a) FIXED RENT. Tenant shall pay an annual base rent (the "FIXED
RENT") for the Premises, which shall be paid without setoff or deduction, in
equal monthly installments in advance on the first day of each and every
calendar month during the Term, to Landlord or to Landlord's agent, at such
place as Landlord may designate to Tenant, in lawful money of the United States
of America for the payment of all debts, public and private, as follows:
From the Commencement Date to the last day of the 14th complete
month from the Commencement Date (the "FIRST ADJUSTMENT RATE"):
$582,400.00 per annum ($48,533,33 per month) ($16.00 per square foot);
From the day immediately following the First Adjustment Date to
the last day of the month in which the 3rd anniversary of the
Commencement Date occurred (the "SECOND ADJUSTMENT DATE"): $591,500.00
per annum ($49,291.67 per month) ($16.25 per square foot);
From the day immediately following the Second Adjustment Date to
the last day of the month in which the 5th anniversary of the
Commencement Date occurred (the "THIRD ADJUSTMENT DATE"): $600,600.00
per annum ($50,050.00 per month) ($16.50 per square foot); and
From the day immediately following the Third Adjustment Date to
the Expiration Date: $609,700.00 per annum ($50,808.33 per month)
($16.75 per square foot).
3.2. On execution hereof Tenant shall pay to Landlord an amount equal
to one (1) monthly installment of Fixed Rent payable under this Lease, which
shall be deposited by Landlord in a federally insured interest bearing account
(with interest to accrue to the benefit of Tenant), and which amount shall be
credited to the first full installment of Fixed Rent payable hereunder. If the
Commencement Date shall be any day other than the first day of a calendar month,
the Fixed Rent for the period between the Commencement Date and the first day of
the first full calendar month of the Term shall be pro-rated on a per diem basis
and Landlord shall credit any excess amount paid pursuant to this Section 3.2
toward the payment of the Fixed Rent for the next succeeding calendar month in
which a payment of Fixed Rent is due. If the Expiration Date is other than the
last day of a calendar month, Fixed Rent shall be similarly prorated.
5
<PAGE>
3.3. Notwithstanding anything to the contrary set forth in
Section 3.1, Tenant is entitled to an abatement of Fixed Rent equal to two
months, which shall accrue for the first two full months during the Term.
3.4. Landlord agrees to provide Tenant with a monthly statement for
the installments of Fixed Rent and other charges due, including without
limitation, Additional Rent, provided, however, that the failure of Landlord to
provide such monthly statements shall not excuse Tenant from paying the Fixed
Rent and other charges.
4. ADDITIONAL RENT.
4.1. In addition to the Fixed Rent payable under Article 3 hereof,
subject to Section 6.7 below, from the Commencement Date and throughout the
Term, Tenant shall pay to Landlord additional rent consisting of all sums of
money as shall become due and payable by Tenant under this Lease including, but
not limited to, the payments due under this Article 4 (collectively, the
"ADDITIONAL RENT").
4.2. the following terms shall have the meanings set forth herein:
"BASE OPERATING EXPENSE YEAR" shall be the calendar year
commencing January 1, 1997.
"BASE OPERATING EXPENSES" shall mean the Cost of Operation and
Maintenance for the Property for the Base Operating Expense Year. If
less than ninety-five percent (95%) of the rentable area of the
Building shall be occupied at any time during the Base Operating
Expense Year, then those items included int eh Cost of Operation and
Maintenance that are subject to change based upon actual occupancy in
the Building, for the Base Operating Expense Year (and for each
Operational Year in which actual occupancy of the Building shall be
less than ninety-five percent (95%)) shall be adjusted pro rata by
Landlord to the amounts that said items would have been had the
Building been ninety-five percent (95%) occupied at all times during
the applicable year, provided that in no event shall Landlord collect
from the tenants in the Building more than 100% of the actual Cost of
Operation and Maintenance incurred by Landlord.
"BASE TAX YEAR" shall be the calendar year commencing January 1,
1997.
"BASE TAXES" shall mean Taxes payable for the Base Tax Year.
Base Taxes shall be deemed to have been incurred by Landlord in the
Base Tax Year.
"COMMON AREAS" shall mean all portions of the Property not
intended as rentable area, including, without limitation the parking
facilities appurtenant to the Building.
6
<PAGE>
"COST OF OPERATION AND MAINTENANCE" shall mean all costs incurred
by Landlord with respect to the ownership, management, operation,
maintenance and repair of the Property, including, but not limited to,
the following items (which items are illustrative of items to be
included in Operating Expenses): (a) Labor Costs (as hereinafter
defined); (b) the cost of electricity (if not separately metered by or
serving specific tenants); (c) the cost of operating, repairing,
maintaining and replacing the air conditioning, heating and
ventilating systems within the Building (other than such items which
are for the sole benefit of a single tenant); (d) the cost of
operating, repairing, maintaining and replacing the electrical, gas,
steam, plumbing, sprinkler, mechanical, communication, alarm, security
or fire/life safety systems or equipment, including any sales or other
taxes thereon within the Building (other than such items which are for
the sole benefit of a single tenant); (e) utility taxes, water charges
and sewer rental; (f) the cost of insurance carried by Landlord;
(g) the cost of (including any rental cost of) materials and supplies
used in the operation, cleaning, safety, security, renovation,
replacement, repair and maintenance of the Building and/or the
Property; (h) the cost of alterations to the Property or the Building
completed after the Commencement Date made by reasons of any Legal
Requirement (as defined in Section 11.3 hereof) or the requirements of
any insurance boards or Landlord's insurer enacted or established
after the Commencement Date; (i) the cost of repair, maintenance,
painting and roofs, signs, doors, skylights, ceilings and plate glass
doors and windows, if any, which are not the obligation of Tenant or
any other tenant, and the cost of any addition to or replacement of
any part of the Building which is made to reduce the Cost of Operation
and Maintenance; (j) the cost of refurbishing the Common Areas;
(k) the cost of painting and otherwise decorating any non-tenant areas
of the Building: (1) the cost of installing, maintaining, repairing or
replacing reasonable holiday decorations for the Common Areas; (m) the
cost of exterior and interior landscaping or non-tenant areas of the
Building; (n) franchise, license and similar fees and charges paid by
Landlord to any governmental agency for the privilege of owning,
leasing, operating, maintaining or servicing the Building, the
Property or any equipment, property or appurtenances of either;
(o) window cleaning and removal of snow, trash, rubbish, garbage and
other refuse; (p) the cost of operating and maintaining truck
serviceways, tunnels, loading docks, retaining walls, stairs, ramps,
sidewalks, comfort and first aid stations, washrooms, locker rooms for
the Landlord's employees and other common areas; (q) management fees
or, if no managing agent is then employed by landlord, an amount in
lieu thereof which is not in excess of generally prevailing rates
payable in the area in which the Building is located for the
management of similar facilities; (r) the cost of telephone,
telegraph, stationery and advertising; (s) legal and accounting fees
and disbursements; and (t) any and all other expenses of maintenance,
ownership, repair, replacement or restoration of the Building.
Notwithstanding the foregoing, if the cost of any repairs,
alterations, additions, changes, replacements or other items which
would otherwise be included in Cost of Operation and
7
<PAGE>
Maintenance are required to be capitalized under generally accepted
accounting principles, such cost shall not be included in full as Cost
of Operation and Maintenance in the year incurred, but rather,
landlord shall only include in the Base Operating Expense year and for
each Operational Year the annual portion of such costs yielded by
amortizing the same over the useful life thereof, together with
interest on the unamortized amount calculated at the lesser of (1) the
prime rate of interest published from time to time in THE WALL STREET
JOURNAL or any successor publication (the "PRIME RATE") plus 2% per
annum or (2) the maximum legal rate of interest allowed by New Jersey
and only if such capital expenditures are (A) intended to reduce the
Cost of Operation and Maintenance, (B) incurred pursuant to clause (h)
above, or (C) repairs or replacements of part of the Buildings as
provided in clause (i) above. Cost of Operation and Maintenance shall
not include the following items: (i) legal fees, leasing commissions
or finder fees or other costs (including tenant allowances and
advertising and promotional expenses) incurred in the leasing of space
in the Building, in connection with disputes between Landlord and
tenants or for the collection of accounts or otherwise enforcing the
obligations of tenants under other leases: (ii) the cost of any item
for which Landlord is reimbursed by insurance, condemnation proceeds
or otherwise compensated, including reimbursement by any tenants;
(iii) the cost of any alterations made to leasable space in order to
prepare such space for occupancy by a new tenant or other work or
services not performed or rendered generally for tenants of the
Building; (iv) the cost of electricity furnished to any tenantable
space and for which tenants are specifically billed in accordance with
the terms of their leases; (v) refinancing costs and payments of
mortgage interest and principal and rents under ground leases;
(vi) Taxes, franchise or income taxes imposed upon Landlord; (vii) the
costs of acquiring sculptures; paintings and other objects of art for
the Building; (viii) depreciation of the structure of the Building;
and (ix) the amount of any insurance deductible in excess of $25,000.
"LABOR COSTS" shall mean any and all expenses incurred by
Landlord or on Landlord's behalf which relate to employment of
personnel in connection with the operation, repair and maintenance of
the Building and/or the Property, as the case may be, including, but
not limited to, amounts secured for wages, salaries and other
compensation for services, payroll, social security, unemployment and
other similar taxes, workers' compensation insurance, liability
benefits, pension, hospitalization, retirement plans and insurance
(including group life and disability), uniforms and working clothes
and the cleaning thereof, and expenses imposed on or on behalf of
Landlord pursuant to any collective bargaining agreement relating to
such employees in each case other than employees above the rank of
Building Manager. With respect to employees who are not employed on a
full time basis with respect to the Building, a pro rata portion of
expenses allocable to the time any such employee is employed with
respect to the Building shall be included in Labor Costs.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, State, County,
municipal or local government and all departments, commissions,
boards, bureaus, and offices thereof having or claiming jurisdiction
over the Property.
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"LANDLORD'S STATEMENT" shall mean written statements issued by
the Landlord from time to time containing computations of Additional
Rent due pursuant to the provisions of this Article 4.
"OPERATIONAL YEAR"
"TAXES"
(a)
(b)
(c)
If less than
"TAX YEAR" shall mean
"TENANT'S PROJECTED SHARE" shall mean Tenant's Proportionate
Share multiplied by Landlord's written estimate of the increase of
Cost of Operation and Maintenance for an Operational Year over the
Base Operating Expenses.
"TENANT'S PROPORTIONATE SHARE" shall be equal to twenty-two
percent (22%).
4.3. (a) If Taxes payable in any Tax year falling wholly or
partially within the Term shall be greater than the Base Taxes (pro rated, as
appropriate), Tenant shall pay to Landlord, as Additional Rent, Tenant's
Proportionate Share of the amount by which the Taxes for such Tax year exceed
the Base Taxes.
(b) Landlord shall, prior to or following the commencement of
each Tax year after the Base Tax Year within the Term, deliver to Tenant a
written statement (the "TAX STATEMENT") of its estimation of the Taxes for such
Tax year (the "PROJECTED TAXES").
(c) Commencing on the first day of the month immediately
following the submission of any Tax Statement and continuing thereafter until
Landlord renders the next Tax Statement, Tenant shall pay to Landlord on account
of its obligation under Section 4.3(a) hereof, a sum (the "MONTHLY TAX PAYMENT")
equal to one-twelfth (1/12) of Tenant's Proportionate Share of the excess of the
estimated Taxes for such Tax Year as shown on the Tax Statement over the Base
Taxes. Tenant's first Monthly Tax Payment after receipt of Tax Statement shall
be accompanied by the payment of an amount equal to the product of the number of
full months, if any, within the Tax year which shall have elapsed prior to such
first Monthly Tax Payment, TIMES the Monthly Tax Payment, MINUS any Additional
Rent already paid by Tenant on account of its obligation under this
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Section 4.3 for such Tax Year.
(d) Each Tax Statement shall reconcile the payments made by
Tenant pursuant to the preceding Tax Statement or otherwise with Tenant's
Proportionate Share of the excess of the Taxes imposed for the period covered
thereby over the Base Taxes, and, in any event, such reconciliation shall
take place annually upon receipt of final tax bills. Any balance due to
Landlord shall be paid by Tenant within thirty (30) days after Tenant's
receipt of the Tax Statement; any surplus due to Tenant shall be applied by
Landlord against the next accruing monthly installment(s) of Additional Rent.
If the Term has expired or has been terminated, Tenant shall pay the balance
due to Landlord or, alternatively, Landlord shall refund the surplus to
Tenant, whichever the case may be, within thirty (30) days after Tenant's
receipt of the Tax Statement; provided, however, if the Term shall have been
terminated as a result of a default by Tenant, then Landlord shall have the
right to retain such surplus to the extent Tenant owes Landlord any Fixed
Rent or Additional Rent.
4.4. (a) If Landlord shall receive any refund of Taxes in respect
of a Tax Year and if Tenant shall have paid Additional Rent based on the
Taxes paid prior to the refund, Landlord shall deduct from such tax refund
any expenses, including, but not limited to, attorney's fees and appraisal
fees, incurred in obtaining such tax refund, and out of the remaining balance
of such tax refund, Landlord shall credit Tenant's Proportionate Share of
such refund against the next accruing monthly installments(s) of Additional
Rent, or if the Term shall have expired, Tenant's Proportionate Share of such
refund shall be refunded to Tenant within thirty (30) days after receipt
thereof by Landlord; provided, however, if the Term shall have expired as a
result of a default by Tenant, Landlord shall have the right to retain
Tenant's Proportionate Share of the refund to the extent Tenant owes Landlord
any Fixed Rent or Additional Rent. Any expenses incurred by Landlord in
contesting the validity or the amount of the assessed valuation of the
Property or any Taxes, to the extent not offset by a tax refund, shall be
included as an item of Taxes for the Tax Year in within such contest shall be
finally determined for the purpose of computing the Additional Rent due
Landlord or any credit due to Tenant hereunder.
(b) Notwithstanding anything to the contrary contained in
this lease, Tenant shall not have the right to contest or appeal the validity
of any Taxes or the amount of the assessed valuation of the Property without
the prior written consent of Landlord, which may be withheld by Landlord in
its sole discretion.
(c) While proceedings for the reduction in assessed valuation
for any Tax Year is pending, the computation and payment of Tenant's
Proportionate Share of Taxes shall be based upon the original assessments for
such year.
(d) Tenant shall also pay to Landlord, as Additional Rent,
upon demand, the amount of all increases in Taxes and/or all assessments or
impositions made, levied or assessed against or imposed upon the Property or
any part thereof which are attributable to additions or improvements in or
about the Premises made by or on behalf of Tenant or which in whole or in
part belong to Tenant.
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4.5. If the Cost of Operation and Maintenance for any Operational
year shall be greater than the amount of the Cost of Operation and
Maintenance for the Base Operating Expense Year (prorated, as appropriate)
such amount hereinafter referred to as the "COST INCREASE", Tenant shall pay
to Landlord, as Additional Rent, for such Operational Year, in the manner
hereinafter provided, an amount equal to Tenant's Proportionate Share of the
Cost Increase. Landlord shall prior to or following the commencement of each
Operational Year, deliver to Tenant Landlord's Statement containing Tenant's
Projected Share for such Operational Year. Tenant's Projected Share shall be
divided by twelve and
4.6 If Landlord's Final Operating Statement following the end of
any Operational Year indicates that Tenant's Projected Share was less than
Tenant's Proportionate Share of the cost Increase for such Operational Year,
Tenant shall pay Landlord the receipt of the Final Operating Statement. Any
surplus due to Tenant shall be credited against the subsequent payment of
Additional Rent due hereunder. If the Term has expired or has been
terminated, Tenant shall pay the balance due to Landlord or, whichever the
case may be, within thirty (30) days after Tenant's receipt of the Final
Operating Statement; provided, however, if the Term shall have been
terminated as a result of a default by Tenant, then Landlord shall have the
right to retain such surplus to the extent Tenant owes Landlord any Fixed
Rent or Additional Rent.
4.7 Landlord's failure to render Landlord's Statement with respect
to any Operational Year or Tax Year, or Landlord's delay in rendering said
statement beyond a date specified herein, shall not prejudice Landlord's
right to render a Landlord's Statement with respect to that or any subsequent
Operational Year or Tax Year. The obligations of Landlord and Tenant under
the provisions of this Article 4 with respect to any Additional Rent shall
survive the expiration or any sooner termination of the Term.
4.8 Each Tax Statement and Final Operating Statement shall be
conclusive and binding upon the Tenant, unless Tenant shall notify Landlord,
within ninety (90) days after receipt of any statement, that it disputes the
correctness of any such statement, and specify the respects in which any such
statement is claimed to be incorrect. Necessary adjustments shall be made
upon adjudication of the dispute. Pending the adjudication of such dispute,
Tenant shall pay Additional Rent equal to the Additional Rent payable
pursuant to the Tax Statement or the Final Operating Statement in dispute and
such payment shall be without prejudice to Landlord's or Tenant's position in
any legal proceedings commenced by Landlord or Tenant. During the period of
thirty (30) days after receipt of a Tax Statement or a Final Operating
Statement, Tenant may inspect the records of the information reflected in
Landlord's Statement at a reasonable time and place mutually agreeable to
Landlord and Tenant. If the adjudication of the dispute discloses that
Tenant has overpaid Additional Rent by more than 7% for any Operational Year,
Landlord shall pay Tenant's costs of review. Landlord agrees to keep its
books and records for the Property in accordance with the accounting
standards used by Landlord for a substantial portion of the other real
property owned by Landlord.
4.9 In no event shall any adjustment in Tenant's obligation to pay
Additional Rent under this Article 4 result in a decrease in the Fixed Rent
payable hereunder. Tenant's obligation
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to pay Additional rent, and Landlord's obligation to credit and/or refund to
Tenant any amount, pursuant to the provisions of this Article 4 shall survive
the Expiration Date.
4.10 Any Additional Rent payable pursuant to this Article 4 shall
be collectible by Landlord in the same manner as Fixed Rent, and Landlord
shall have the same remedies for non-payment thereof as Landlord has
hereunder for non-payment of Fixed Rent.
4.11 Any payment of Additional Rent or refunds due to Tenant
hereunder for any period of less than a full year, or any adjustment required
due to the change in the area of the Premises, shall be equitably prorated.
4.12 If Tenant shall fail to pay when due any installment of Fixed
Rent or any Additional Rent, Tenant shall pay interest thereon at the
interest rate, provided for in Section 21 hereof, from the date when such
installment or payment shall have become due to the date of the payment
thereof, together with a late charge (after such installment or payment is 15
days past due) equal to five percent (5%) of the unpaid installment, which
interest and late charge shall be deemed Additional Rent. There shall be no
abatement of, deduction form, counterclaim or setoff against Fixed Rent or
Additional Rent, except as otherwise specifically provided in this Lease.
5. ELECTRICITY
5.1 Landlord shall furnish electricity to the Premises on a
sub-merged basis for the normal use of lighting, lamps, typewriters and small
office equipment, including personal computers, whether or not requiring a
separate circuit. Tenant will pay to Landlord as Additional Rent, a sum
equal to (i) "Electric Rates: (as hereinafter defined) for the relevant
billing period, multiplied by (ii) the total kilowatt hours of consumption
and kilowatt hours of demand recorded on Tenant's sub-meter or sub-meters
during such billing period. When more than one meter measures the electrical
consumption of Tenant in the Building, the services rendered through each
meter shall be aggregated, computed and billed as if one meter measured all
of Tenant's electrical consumption for the Premises. Bills for such
sub-metered electricity shall be rendered at such time as Landlord may elect,
but no more than once a month, and shall be payable by Tenant within five (5)
days after rendition thereof. If the amount billed by the public utility
company providing electricity to the Building shall be retroactively
increased or decreased for any billing period for which Tenant shall have
paid Additional Rent pursuant to this Section 5.1, than such Additional Rent
shall be accordingly adjusted, and Tenant shall pay any deficiency therein
within five (5) days of demand therefore, of if there shall have been an
overpayment, Landlord shall credit the amount thereof against the next
succeeding payment of Additional Rent. The term "Electric Rate" shall mean
the actual rate, including demand charges and taxes, at which Landlord
purchases all electrical energy for the Building from the public utility
company supplying such electrical energy. Landlord shall supply to Tenant,
at Landlord's cost, all necessary sub-metering and wiring facilities and
equipment.
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5.2 Landlord shall not be liable in any way to Tenant for any
failure, defect or inadequacy ("Interruption") in the supply or character of
electricity furnished to the Premises, provided that Landlord shall use
commercially reasonable efforts to remedy such Interruption as soon as
reasonable possible. Landlord or its designee shall furnish and install all
replacement lighting, tubes, lamps, starters, bulbs and ballasts required in
the Premises and Tenant shall pay to Landlord or its designee upon demand
Landlord's established building charges for same.
5.3 Tenant's use of electricity in the Premises shall not, at any
time,. exceed the capacity of any of the feeders, risers or wiring in the
Building or any electrical conductors and equipment in or serving the
premises. Tenant shall not, without Landlord's prior consent make any
alteration or addition to the electrical systems in the Premises or the
Building. All additional risers or other equipment required therefor shall
be provided by Landlord and the cost thereof shall be paid by Tenant upon
Landlord's demand.
6. IMPROVEMENTS IN PREPARATION FOR OCCUPANCY.
6.1 (a) Landlord shall construct improvements to the Premises in
preparation for Tenant's occupancy (the "Initial Improvements") in accordance
with the preliminary design plans and specifications referred to in SCHEDULE B
(the "DESIGN PLANS"). The Initial Improvements shall include the Base Landlord
Work, the Landlord Work, the Special Work and the Data Center Work.
(b) Landlord shall pay all costs in connection with
constructing those items of the Initial Improvements described on SCHEDULE C
attached hereto (the "BASE LANDLORD WORK") and those items of the Initial
Improvements described on SCHEDULE D attached hereto (the "LANDLORD WORK").
Tenant shall reimburse Landlord for all Costs (as hereinafter defined)
incurred by Landlord in connection with constructing those items of the
Initial Improvements described on SCHEDULE E attached hereto (the "SPECIAL
WORK"). After the Initial Improvements are substantially completed, Landlord
shall deliver to Tenant an invoice evidencing the cost of the Special Work
and Tenant shall reimburse Landlord for such Costs within thirty (30) days
after receipt of such invoice. Tenant shall reimburse Landlord for all Costs
incurred by Landlord in connection with constructing those items described on
SCHEDULE F, attached hereto the ("DATA CENTER WORK"). Tenant shall
reimburse Landlord for the Costs of constructing the Data Center Work as
follows: (i) an amount equal to the lesser of $100,000.00 or the actual cost
of constructing the Data Center Work shall be amortized over the length of
the Term using an interest factor of ten percent (10%), payable in monthly
installments, together with the payment of Fixed Rent, and (ii) the cost of
constructing the Data Center Work in excess of $100,000.00 shall be
reimbursed by Tenant to Landlord with Tenant's reimbursement of the Special
Work as provided above. The monthly payments of the Cost of the Data Center
Work shall be deemed to be Additional Rent for all purposes of this Lease.
The term "COSTS" shall mean (i) all actual costs incurred by Landlord for
work performed or caused to be performed by landlord, its architects,
engineers, contractors and subcontractors, including, but not limited to, the
cost of materials, labor, permits, approvals and insurance, (ii) market rate
general conditions, and (iii) the market rate percentage of the aggregate
costs referred to in clause (i) of the general contractor's overhead and
profit.
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(c) Tenant shall be solely responsible for the cost of
preparing the Design Plans. Landlord hereby approves the Design Plans.
(d) Landlord covenants to complete the Initial Improvements
in a good and womanlike manner using quality materials and without material
defect and shall use reasonable speed in diligence in completing the work,
subject to Tenant Delays (as Defined in Section 6.5) and Unavoidable Delays
(as defined in Section 38.2).
(e) Landlord shall use reasonable efforts, including the
solicitation of competitive bids where appropriate form reputable
contractors, to obtain the construction of the initial improvements at a
reasonable cost. Landlord shall obtain such bids on the entire job of
constructing the Initial Improvements and for each separate item comprising
the Initial Improvements. Landlord shall deliver to Tenant, for informational
purposes only, all bids from contractors and subcontractor to perform any
aspect of the Initial Improvements promptly after receipt of such bids.
Notwithstanding the foregoing, (i) Landlord shall be responsible for
obtaining all necessary permits and government authorizations required in
connection with the Initial Improvements, (ii); all contractors,
subcontractors, contracts, subcontracts and other construction documents in
connection with the Special Work and the Data Center Work shall be subject to
Tenant's reasonable approval (which approval or disapproval shall be given to
Landlord within 5 business days of receipt of such information or documents),
it being agreed that all contracts relating to the Special Work and the Data
Center Work shall be lump sum contracts (which shall include all Costs
therefor), (iii) Tenant shall approve or disapprove of the fixed price for
the Special Work and Data Center Work within 5 business days of receipt from
Landlord or copies of the applicable contracts, subcontracts and construction
documents and notification of the fixed price for the Special Work and Data
Center Work within 5 business days of receipt from Landlord of copies of the
applicable contracts, subcontracts and construction documents and
notification of the fixed prices, (iv) upon Tenant's approval of the fixed
price for the Special Work and Data Center work and Landlord's receipt of all
necessary permits and government authorizations, Landlord will commence and
diligently pursue performing the Special Work and Data Center Work and
Landlord's receipt of all necessary permits and government authorizations,
Landlord will commence and diligently pursue performing the Special Work and
Data Center Work, and (v) Tenant shall have the right (whether or not through
an agent, contractor or independent architect) to inspect the Premises, from
time to time, prior to the Commencement Date to verify the progress of
construction, provided that Tenant coordinates such inspections with
Landlord's general contractor. If Tenant fails to approve or disapprove of
the items set forth in clauses (ii) and (iii) above within the time periods
referred to above, Tenant shall be deemed to have disapproved such items and
there shall be deemed to be a Tenant Delay for each day until Tenant responds
to such items.
(f) Notwithstanding anything to the contrary contained in Section
6.1(b) above, payment and reimbursement of the Costs for completing the Special
Work and the Date Center Work shall be subject to (i) satisfaction of all of the
conditions set forth in Section 6.4 below, and (ii) receipt by Tenant of
customary lien waivers and contractor statements and affidavits in form
reasonably satisfactory to Tenant and other evidence reasonably satisfactory to
Tenant of Landlord's payment of such Costs. In no event shall Tenant be
responsible for Costs in excess of the fixed price
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for the Special Work and the Data Center Work, other than costs rising from
Change Orders (as hereinafter defined).
(g) Within 45 days after final completion of the Initial
Improvements, Landlord shall deliver to Tenant, at Tenant's request and at
Tenant's expense, the final plans and specifications for the Initial
Improvements with all Change Orders marked thereon.
6.2. Landlord will prepare and deliver to Tenant final plans and
specifications for the Premises consistent with the Design Plans (the "FINAL
PLANS")on or before September 18, 1996. Tenant will deliver to Landlord
written notice that it has approved or disapproved the Final Plans by
September 23, 1996 and, if it disapproves the Final Plans, Tenant shall
specify in reasonable detail any objections to the Final Plans. In the event
that Tenant disapproves the Final Plans, Tenant shall specify in reasonable
detail any objections to the Final Plans. In the event that Tenant
disapproves the Final Plans, Landlord and Tenant shall promptly meet and use
good faith efforts to resolve such disagreement. Landlord shall not commence
the construction of the Initial Improvements until Tenant delivers written
notice of Landlord that it has approved the Final Plans in full. Landlord
and Tenant hereby agree that Rothe-Johnson Associates shall prepare the final
plans and specifications, at the sole expense of Landlord.
6.3 If Tenant decides to amend, change or modify the Final Plans
after the Final Plans have been approved by both Landlord and Tenant, Tenant
shall submit to Landlord for its approval (which approval shall not be
unreasonably withheld) a reasonably detailed description of a proposed
amendment, change or modification (hereinafter referred to as a "CHANGE
ORDER"). Within ten (10) business days after receipt of the Change Order,
Landlord shall notify Tenant whether it approves or disapproves the Change
Order, the estimated construction costs for the Change Order and the effect,
if any, of the Change Order on the Commence Date. If Landlord approves the
Change Order, Landlord shall notify Tenant of such approval and Tenant shall
notify Landlord whether it approves the estimated costs and the effect, if
any, on the Commencement Date within five (5) business days after Tenant's
receipt of Landlord's notice. If Tenant fails to notify Landlord of Tenant's
approval of the estimated cost and the effect on the Commencement Date within
said five (5( business day period, then Tenant shall be deemed to have
disapproved the estimated cost and effect on the Commencement Date.
Notwithstanding anything to the contrary contained herein, Landlord shall not
proceed with the work shown on any approved Change Order unless Tenant has
approved Landlord's determination of the cost and effect of the Change Order.
If Tenant has notified Landlord of its approval, then Tenant shall pay 100%
of the Costs of the Change Order in accordance with the provision of Sections
6.1(b) and (f) hereof.
6.4. (a) The Initial Improvements shall be deemed substantially
completed, the Premises shall be conclusively deemed available for Tenant's
occupancy on, and the Commencement Date shall be the date that each of the
following conditions have been met:
(i) a certificate of occupancy (whether or not subject
to conditions), permitting occupancy of the Premises has been issued by the
applicable Governmental Authority; and
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(ii) the Initial Improvements have been substantially
completed in accordance with he Final Plans (excluding any details of
construction, decoration or mechanical adjustment which do not materially
interfere with Tenant's use of the Premises), the Premises is secured and all
building systems are functioning; and
(iii) five days notice of the occurrence of the events
described in Subsections (i) and (ii) has been given to Tenant.
(b) Upon notification by Landlord to Tenant that the Initial
Improvements have been substantially completed as set forth in Section
6.4(a)(ii) above, Landlord and Tenant will inspect the Premises and develop a
list of all defects or incomplete items in or of the Initial Improvement which
would not materially interfere with Tenant's use of the premises and which would
reasonably be determined in a walk-through inspection (the "PUNCH LIST ITEMS"),
Landlord agrees to correct, at its sole cost and expense, all Punch list Items
with due diligence within a reasonable time, not to exceed sixty (60) days after
the Commencement Date, provided, however, if such repairs cannot reasonably be
completed with such sixty (60) day period, Landlord shall have a longer period
of time to make such repairs as is reasonably necessary, as long as Landlord
commences such repairs within such sixty (60) day period and thereafter uses
diligent efforts to complete such repairs. Correction of the Punch list Items
shall not unreasonably interfere with the Tenant's use or occupancy of the
Premises. If Landlord fails to correct any Punch list Item within the required
time, Tenant may notify Landlord of the nature of the Punch list Item and
Tenant's intent to itself correct the Punch list Item. If Landlord fails to
commence correction of the Punch list Item within 20 days of Tenant's notice,
and diligently pursue correction of the Punch list Item until completion, then
Tenant, at Landlord's cost, may itself correct the Punch list Item.
6.5. The term "TENANT DELAY" shall mean any delay in the completion of
the Initial Improvements or in the satisfaction of any conditions set forth in
Section 6.4 to the extent such delay is due to any act or omission of Tenant,
its agents, employees or contractors. Tenant Delay shall include:
(a) delays in the delivery by Tenant of its approval or
disapproval of the Final Plans;
(b) delays arising from Change Orders;
(c) delays in obtaining any item of the Special Work; and
(d) delays in resulting from any direction by Tenant that
Landlord suspend work or otherwise hold up proceeding with the fabrication or
construction of any portion of the Initial Improvements because of a possible
change therein by Tenant or for any other reason.
If there occurs a Tenant Delay, the Commencement Date shall be the date when the
Premises would have otherwise been available but for such Tenant Delay.
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6.6. Tenant has inspected the Premises and accepts the same "as is"
in its present condition, subject to the construction of the Initial
Improvements except for Punch list Items and latent defects, which latent
defects shall be reported to Landlord no later than 12 months after the
Commencement Date. Landlord or Landlord's contractor shall remedy all latent
defects, with due diligence, within 6 months or Tenant's report to Landlord
of the existence of latent defects, at no cost to Tenant. Landlord shall
take all steps reasonably necessary to minimize interference with Tenant's
use and occupancy of the Premises in the remedying of the latent defects. If
Landlord or Landlord's contractor fails to remedy any latent defect within
the required time, then Tenant may notify Landlord of the nature of the
latent defect and Tenant's intent to itself correct the latent defect. If
Landlord fails to commence correction of the latent defect with 20 days of
Tenant's notice, and diligently pursue correction of the latent defect until
completion, then Tenant, at Landlord's cost, may itself correct the latent
defect. Except as provided above, and except for Tenant's pre-Commencement
Date possession as provided in Section 6.7 below, by entering into occupancy
of any part of the Premises, Tenant shall be conclusively deemed to have
agreed that Landlord has fully completed the Initial Improvements.
6.7. Except as provided below, if Landlord is delayed in satisfying
the conditions set forth in Section 6.4(a) above and delivering possession of
the Premises to Tenant on or before December 15, 1996 because of the fact
that a certificate of occupancy has not been procured, or for any other
reason, Landlord shall not be subject to any liability for damages for
failure to so give possession on said date and the validity of this Lease
shall not be impaired under such circumstances. Notwithstanding the
foregoing, if such conditions are not so satisfied and possession is not so
delivered on or before the Outside Pending Date (as defined in this Section
6.7), then as Tenant's sole remedy with respect to such failure, Tenant shall
be entitled to an abatement of Fixed Rent first accruing after the
Commencement Date in an amount equal to (a) one (1) day of Fixed Rent for
every three (3) days, commencing on the Outside Opening Date and continuing
through and including the thirtieth (30th) day following the Outside Opening
Date, that Landlord shall have failed to satisfy such conditions and
delivered such possession, (b) if such failure shall continue beyond such
thirtieth (30th) day, one (1) day of Fixed Rent for every two (2) days,
commencing on the thirty-first (31st) day following the Outside Opening Date
and continuing through and including the sixtieth (60th) day following the
Outside Opening Date, that Landlord shall have failed to satisfy such
conditions and delivered such possession, and (c) if such failure shall
continue beyond such sixtieth (60th) day, one (1) day of Fixed Rent for each
day from and after the sixty-first (61st) day following the Outside Pending
Date that Landlord shall have failed to satisfy such conditions and delivered
such possession. If such conditions are not so satisfied and possession is
not so delivered on or before May 1, 1997 (plus one (1) day for each day of a
Tenant Delay and, except as provided above, for an Unavoidable Delay,
provided, however, such date shall not be extended by more than nine months
from the Outside Opening Date as a result of an Unavoidable Delay), then
Tenant shall have the option to terminate this Lease, by giving Landlord
written notice thereof on or before May 21, 1997 (plus 1 day for each day of
a Tenant Delay and for an Unavoidable Delay), and this Lease shall terminate
on the date which is thirty (3) days after Landlord's receipt of such notice,
unless prior to such date such conditions are satisfied and possession is so
delivered, in which case Tenant's termination notice shall be null and void
and this Lease shall continue in full force and effect. For purposes of this
Section 6.7, the term "OUTSIDE OPENING DATE" shall mean January 1, 1997, plus
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one (1) day for each day of a Tenant Delay and for an Unavoidable Delay. If
permission is given to Tenant to enter into possession of the Premises or to
occupy premises other than the Premises prior to the date specified as the
Commencement Date, Tenant covenants and agrees that such occupancy shall be
deemed to be under all the terms, covenants, conditions and provisions of
this Lease, provided that if such possession of the Premises is made
available to Tenant prior to the Commencement Date to enable Tenant to move
into the Premises or to otherwise remedy the Premises for Occupancy, Tenant
shall not be obligated to pay Fixed Rent or Additional Rent (other than for
utility costs) for such period.
6.8. Landlord agrees to allow Tenant (and the architects,
decorators, and approved contractors of the Tenant), access to the Premises
prior to the Commencement Date for the purpose of taking measurements,
preparation of punch lists and checking conformity of the Initial
Improvements with contract documents and making installations therein which
are not part of the Initial Improvements, provided that the completion of the
Initial Improvements shall have reached a point, in Landlord's judgment, such
that Landlord will not be delayed in completing the Initial Improvements by
the performance by Tenant of any such work. Any such delay caused by Tenant
shall be deemed to be Tenant Delay. In connection with the actions referred
to in this Section 6.8, Tenant covenants (a) to cease promptly upon requests
by Landlord, any activity or work during any period which shall interfere
with or delay Landlord's prosection or completion of the Initial Improvements
or any other work being performed by Landlord in the Building, (b) that
Tenant shall comply promptly with all reasonable procedures and regulations
prescribed by Landlord from time to time for coordinating such work and
activities with any other activity or work int he Premises or the Building,
(c) that, prior to such access, Tenant shall deliver to Landlord policies of
insurance reasonably required by Landlord, (d) that Tenant shall indemnify
and hold harmless Landlord from and against any and all claims to the extent
arising from any negligence, acts or omissions or Tenant or its architects,
engineers, contractors, decorators, servants, agents or employees for any
reason whatsoever arising out of Tenant's access to or being in the Building
or in connection with any work to be performed for Tenant by anyone other
than Landlord, and (e) comply with all the provisions of the Lease, other
than its obligation to pay Fixed Rent or Additional Rent.
6.9. Landlord covenants and agrees that it shall make the Initial
Improvements in accordance with all applicable legal requirements, including
but not limited to, all applicable building, fire and insurance codes and
regulations and the Americans With Disabilities Act ("ADA") and upon
completion of the Initial Improvements, the Premises will be in compliance
with all applicable building, fire and insurance codes and regulations and
the ADA.
7. ALTERATIONS.
7.1. Following the completion of the Initial Improvements, as long as
there is no Event of Default by Tenant under the terms of this Lease, Tenant
may, upon prior notice to Landlord and submission of plans and specifications to
Landlord, if applicable, make interior non-structural additions or improvements
to or alterations to the Premises, having a cost not to exceed $10,000.00 either
individually or in the aggregate with other alterations made within a twelve
(12) month period,
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as long as the same do not affect, alter, interfere with or disrupt any of
the electrical, mechanical, plumbing or other systems in the Building, or the
outside appearance, roof or any structural element of the Building.
7.2. Tenant shall not make any addition or improvement in or
alteration of the Premises having a cost in excess of $10,000.00, either
individually or in the aggregate with other altercations made within a twelve
(12) month period or affecting, altering, interfering with or disrupting any
electrical, mechanical, plumbing or other systems in the Premises or the outside
appearance, roof or any structural element of the Building (any such work being
hereinafter referred to as "MAJOR WORK"), unless Tenant submits to Landlord
detailed plans and specifications therefore and Landlord approves such plans and
specifications in writing, which approval may not be unreasonably withheld or
delayed by Landlord, provided Landlord may withhold such approval in its sole
discretion for Major Work impacting Building systems, the outside appearance,
roof or any structural element of the Building.
7.3. Tenant agrees to pay to Landlord or demand after completion of
such Major Work, an oversight and plan review fee for any alterations,
improvements or additions may pursuant to this Article 7 constituting Major
Work equal to five percent (5%) of all costs incurred by Tenant in making
such alterations, improvements or additions.
7.4. (a) If Tenant performs any subsequent alterations pursuant to
Sections 7.1 or 7.2, Tenant shall, prior to the commencement of construction
or demolition, at its expense, obtain all building permits, approvals and
certificates required by any Governmental Authority and upon completion, a
certificate of occupancy and shall deliver promptly duplicates of all such
permits, approvals and certificates to Landlord. Tenant will cause Tenant's
contractors and subcontractors to carry worker' compensation, general
liability, property damage insurance and any other insurance reasonably
requested by Landlord, naming Landlord, Landlord's property manager, and any
holder of a Superior Mortgage (as hereinafter defined), in amounts and in
form acceptable to Landlord. Tenant agrees to obtain and deliver to Landlord
certificates of insurance evidencing the required coverage, written and
unconditional waivers or mechanic's liens upon the Property, for all work,
labor and services to be performed and all materials to be furnished in
connection with such work, signed by all contractors, subcontractors,
materialmen and laborers involved in such work. Notwithstanding the
foregoing, if any mechanic's lien is filed against the Premises or the
Property, for work claimed to have been done for, or materials furnished to,
Tenant, whether or not done pursuant to this Article, the same shall be
discharged by Tenant within 30 days after Tenants, notice of the filing of
such lien, by filing the bond required by law, if necessary.
(b) Tenant shall perform any additional improvement or
alteration in a good and workmanlike manner and in compliance with all
applicable legal requirements and in accordance with the standards, if any,
of the National Board of Fire Underwriters or other organizations exercising
similar functions.
(c) All materials and workmanship shall be of good quality,
and shall be of at least equal quality to the Initial Improvements.
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(d) In all events, Landlord shall be permitted to designate,
in its own absolute discretion, the contractor(s) to be used by Tenant for
heating, ventilation and air-conditioning ("HVAC"), plumbing, electrical or
mechanical work, and Tenant hereby waives any rights, of any kind or nature
whatsoever, it may now or hereafter have against Landlord as a result of any
loss, cause or expenses (including attorney's fees), foreseen or unforeseen,
incurred by Tenant by virtue of Tenant's required use of the contractor(s) so
selected by Landlord.
(e) Immediately following completion of any improvement,
addition, or alteration, Tenant shall deliver to Landlord (i) "as-built"
final plans and drawings reflecting all alterations, which plans and drawings
shall be, subject only to normal construction tolerances, identical to the
plans submitted to Landlord by Tenant, upon which Landlord granted its
approval, and (ii) a certificate of Tenant's architect stating that the
alterations, as completed, conform with the plans and all legal requirements.
(f) The approval of Landlord of any of Tenant's drawings,
plans and/or specifications shall not constitute an assumption of any
liability on the part of Landlord for their accuracy or their conformity with
applicable law, and Tenant shall be solely responsible therefor. Approval by
Landlord of any Tenant's plans and specifications shall not constitute a
waiver by Landlord of the right to thereafter require Tenant to amend same to
provide for immaterial omissions therein later discovered by Landlord.
7.5 Except as provided below, all improvements to the Premises,
including, without limitation, the Initial Improvements, and all fixtures,
paneling, partitions, railings and like installations (excluding movable
partitions and Tenant's personal property, trade fixtures and equipment but
including wall-to-wall carpeting, drapes and fixtures) installed in the
Premises at any item, either by Tenant, or by Landlord or Tenant's behalf,
shall become the property of Landlord and shall remain upon and be
surrendered with the Premises unless Landlord, by notice to Tenant no later
than thirty (30) days prior to the Expiration Date or earlier termination of
this Lease, elects to have the same removed by Tenant, in which event, the
same shall be so removed from the Premises by Tenant on lease termination, at
Tenant's expense, and Tenant shall immediately, at its sole expense, repair
and restore the Premises to the condition existing immediately prior to the
installation of the items removed, normal wear and tear and casualty
excepted, and repair any damage to the Premises or the Property due to such
removal. All property permitted or required by Landlord to be removed from
the Premises after Tenant's surrender thereof shall be deemed abandoned and
may, at the election of Landlord, either be retained as Landlord's property
or may be removed from the Premises by Landlord at Tenant's expense. At the
request of Tenant, prior to completion of such improvements or alterations,
Landlord will promptly notify Tenant whether Tenant may or must remove or
leave such improvements or alterations at the expiration of this Lease.
7.6. Tenant agrees not to employ, either directly or indirectly, or
permit the employment of, any contractors, subcontractors, materialmen,
laborer, vendor, mover or any other party ("CONTRACTING PARTIES") employed
for any services relating to or in connection with the Premises which, at
Landlord's sole opinion, would create any difficulty, strike or
jurisdictional
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dispute with other Contracting Parties engaged by Tenant, Landlord, other
tenants in the Building or others, or would in any way disturb the
construction, maintenance, cleaning, repair, management, security or
operation of the Building or any part thereof. Tenant, upon demand by
Landlord, shall cause all such Contracting Parties causing such interference,
difficulty or conflict, to leave or be removed from the Building immediately.
8. REPAIRS AND MAINTENANCE.
8.1. Landlord, at its expense, shall keep, maintain and repair in
good condition the foundation, the structural columns and beams, the exterior
and the roof of the Building, the HVAC, other systems and the Common Areas of
the Building, except for (i) those repairs which arise out of the fault or
negligence of Tenant, (ii) those repairs for which Tenant is responsible
pursuant to Section 8.2 hereof or pursuant to any other provision of this
Lease, or (iii) repairs to Tenant's personal property; provided, however,
that Landlord shall have no obligation or liability to perform repairs in the
Premises until receipt of written notice from Tenant specifying the repairs
required.
8.2. Tenant shall, throughout the Term, take good care of and
maintain the Premises and the fixtures and appurtenances therein, and shall
make all non-structural repairs and replacements, as and when needed to
preserve the Premises in good working order and condition, in each case
ordinary wear and tear and casualty excepted. All damage or injury to the
Premises or to any other part of the Property, whether requiring structural
or nonstructural repairs, caused by or resulting from any carelessness, act,
omission, negligent or improper conduct of Tenant, Tenant's servants,
employees, contractors, agents, invitees or licensees, or by this use or
manner or use of the Premises by Tenant or nay such person, shall be repaired
promptly by Tenant at its sole cost and expense, to the satisfaction of
Landlord. Tenant shall also repair all damage to the Property and to the
Premises caused by the moving of Tenant's fixtures, furniture, or equipment
into out of the Premises or the installation thereof. All such repairs shall
be of quality and class equal to the Initial Improvements. Notwithstanding
anything herein to the contrary, Landlord shall, at Tenant's sole cost and
expense, have the right to perform any repairs outside of the Premises, or
to any of the systems in the Building which are Tenant's responsibility
pursuant to this Section 8.2. In addition, if Tenant fails after ten (10)
days' notice to proceed with due diligence to make any repairs required to be
made by Tenant (except in an emergency, wherein Landlord may proceed
immediately if Tenant does not immediately proceed to repair), such repairs
may be made by the Landlord. Any repairs made by Landlord on behalf of
Tenant hereunder shall be at the expense of Tenant and the costs and expenses
thereof incurred by Landlord shall be collectible as Additional Rent on the
date on which the next installment of Fixed Rent is due hereunder following
delivery by Landlord of an invoice therefor.
9. UTILITIES AND SERVICES.
9.1. (a) As long as Tenant is not in default beyond any applicable
grace period under any of the covenants of this Lease, Landlord shall provide:
(a) at least two automatic passenger elevator facilities with cars 24 hours a
day, 365 days a year for routine and ordinary use; (b) HVAC to the Premises on
business days (holidays excepted) from 8 a.m. to 6 p.m. (weekdays)
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and from 9 a.m. to 1 p.m. on Saturdays, in accordance with standards
customarily provided in similar type buildings in Somerset County; (c) hot
and cold running water for ordinary purposes at all times; (d) cleaning
services in accordance with SCHEDULE H attached hereto, for the Common Areas
of the Building, and the Premises, on business days (holidays excepted),
provided that the same are kept in order by Tenant; (e) window washing on the
inside and outside of the windows of the Premises no less frequently that
three (3) times per year, and (f) freight elevator service during regular
business hours for routine and ordinary use, subject to scheduling by
Landlord. Special cleaning services in excess of those provided by Landlord,
at Tenant's request, shall be at Tenant's sole cost and expenses and subject
to Landlord's reasonable approval. For purposes hereof the term "holidays"
shall mean President's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving, Christmas and New Year's Day. The cost of the services
described in this Section 9.1 shall be included in the Cost of Operation and
Maintenance.
(b) If Tenant shall require HVAC service at times other than
those times during which the same is to be provided pursuant to Section
9.1(a), Landlord shall furnish the same upon advance notice from Tenant,
given prior to 12:00 noon on Fridays when the service is required on Saturday
or Sunday, by 12:00 noon immediately preceding the day which service is
required on a holiday and by 3:00 p.m. any business day on which its service
is required, and Tenant shall pay Landlord its then established charges
therefore in demand, which as of the date of this Lease shall be $65.00 per
hour. Landlord's hourly charge for overtime and HVAC is estimated on the
direct kilowatt per hour usage and on a floor by floor basis.
(c) Landlord shall provide, at its sole cost and expense, a
card access system on the front exterior entrance of the Building for use by
all tenants of the Building. Landlord shall, at its sole cost and expense,
supply Tenant with 100 access cards. Tenant shall distribute such cards only
to Tenant's employees and shall cause any employee to return such to Tenant
at the time as such employee leaves its job with Tenant. Tenant shall pay
Landlord for any access cards in excess of 100, in an amount then being
charged for such cards by Landlord to the tenants in the Building. Landlord
shall provide all information regarding the card access system to Tenant to
enable Tenant to purchase a compatible card access system for the Premises.
Any card access system installed by Tenant for the Premises shall be at
Tenant's sole cost and expense and shall be performed in accordance with the
provisions of Article 7 hereof.
9.2. Landlord reserves the right to suspend services of the
heating, elevators, plumbing, air conditioners, power systems or cleaning or
other services, which necessary by reason of accident or for repairs,
alterations, replacements or improvements necessary in the judgment of
Landlord for as long as may be reasonably required by reason thereof, or by
reason of strikes, accidents, laws, orders or regulations or any other reason
beyond the reasonable control of Landlord, and in such case, Tenant shall not
be entitled to any abatement of rent or any other offset whatsoever.
Landlord shall provide Tenant with advance notice of any proposed suspension
of services and the duration of the suspension and will use commercially
reasonable efforts to effect the repairs, alterations and replacements.
10. INSURANCE.
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10.1. Tenant shall maintain, at its sole cost and expense:
(a) commercial general liability insurance providing coverage
for bodily injury, personal injury, property damage and contractual liability
having a combined single limit of $5,000.00, or such higher limits as Landlord
shall reasonably require, with carriers and in forms reasonably satisfactory to
Landlord, provided, that such are customarily required to be carried by tenants
operating similar facilities in similar type building in Somerset County or as
may be reasonably required by a holder of a Superior Mortgage.
(b) All-risk property insurance covering tenant's personal
property, including, but not limited to, furniture, fixtures, equipment,
machinery, goods, supplies kept of maintained in the Premises or any
alteration, addition or improvements in the Premises, including, but not
limited to, Landlord Work, the Special Work and the Date Center Work (but
excluding the Landlord Base Work).
(c) Worker's compensation insurance covering all employees in
compliance with statutory requirements and employer's liability in a limit of
$500,000 per injury by accidents or disease.
(d) Business interruption insurance to protect Tenant against
loss of earnings in the event of an interruption of Tenant's business through
destruction of real or personal property at the Premises by a peril insurable
under an all-risk property insurance policy. Such policy shall insure
against loss of earnings from the perils of fire and lightening, extended
coverage, vandalism, malicious mischief, water damage, flood and earthquake.
(e) During the course of the construction of any improvement
by Tenant, Tenant shall cause its general contractor to carry statutory
worker's compensation insurance, commercial general liability insurance and
automobile liability insurance. Except for worker's compensation, Landlord
and Landlord's property manager shall be named additional insureds. A
Certificate of Insurance evidencing such insurance shall be delivered to
Landlord before such work begins.
(f) Automobile liability insurance with a combined single limit
of $1,000,000 covering all owned, non-owned and hired vehicles.
10.2. If Tenant shall fail to maintain such insurance as is
required by this Article 10, Landlord may obtain such insurance, and the
amount of the premium or premiums paid by Landlord for such insurance shall
be collectible as Additional Rent on the date on which the next installment
of Fixed Rent is due hereunder following delivery by Landlord of an invoice
therefore.
10.3. All insurance policies maintained by Tenant under this
Article 10 shall name Landlord, Landlord's property manager and any holder of a
Superior Mortgage as an additional insured.
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10.4. Each party hereby waives any rights of action against the
other for loss or damage covered by the property insurance required hereunder
and each party covenants and agrees with the other that it will obtain a
waiver from the carriers of such property insurance policies releasing such
carrier's subrogation rights as against the Landlord and/or Tenant, as the
case may be. Tenant shall provide Landlord with Certificates of Insurance
which shall evidence that the insurance required hereunder is in full force
and effect, that such insurance will not be terminated or cancelled without
thirty (30) days' prior written notice to Landlord by the carrier of such
insurance. The Certificates will be delivered prior to occupancy of the
Premises and Tenant shall deliver new Certificates showing the renewal of the
coverages at least ten (10) days prior to the expiration of the existing
coverages.
10.5. The policies of insurance referred to in this Article 10
shall be from a company rated in the A.M. Best Key Rating Guide with the
policyholders service rating of not less than A and a financial rating of not
less than XII or as reasonably required by a holder of a Superior Mortgage.
Each insurance company providing an insurance as required herein shall be
licensed to do business in the State of New Jersey.
10.6. Tenant shall not do anything, or suffer or permit
anything to be done in or about the Premises, or the Property which shall (a)
subject Landlord to any liability or responsibility for injury to any person
or property by reason of any activity being conducted on the Premises, (b)
cause by increase in the insurance rates or coverage applicable to the
Building or equipment or other property located therein, or (c) be prohibited
by an license or other permit required or issued by Governmental Authority.
Tenant, at Tenant's expense, shall comply with all rules, orders, regulations
or requirements of the National Board of Fire Underwriters or any similar
body. In the event that any alteration of the Premises by Tenant, any act or
omission of Tenant, or Tenant's occupancy of the Premises shall cause the
rate of fire or insurance or coverage on the Building or the Premises to be
increased, Tenant shall pay the amount of any such increase as Additional
Rent on the date on which the next installment of Fixed Rent is due hereunder
following delivery by Landlord of an invoice therefor.
11. USE.
11.1. Tenant shall use the Premises for general business,
professional, executive, and administrative offices and such activities as
are normally incidental thereto and for no other purposes.
11.2. Tenant shall not use or occupy, suffer or permit the
Premises or any part thereof to be sued in any manner, or anything to be done
therein or suffer or permit anything to be brought into or kept therein, which
would in any way tend to or: (a) cause substantial or objectionable noise, (b)
violate any laws or requirements of a Governmental Authority, (c) make void or
voidable any insurance policy then in force with respect to the Property, (d)
make unobtainable from reputable insurance companies authorized to do business
sin the State of New Jersey at standard rates any fire insurance with extended
coverage, or liability, elevator, boiler or other insurance required to be
furnished by landlord under the terms of a Superior Mortgage (e)
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cause, or be likely to cause, physical damage to the Property, (f) constitute
a public or private nuisance, (g) impair the appearance, character of
reputation of the Building, (h) discharge objectionable fumes, vapors or
odors into the Building's air conditioning system or into the Building's
flues or vents or otherwise in such manner as may unreasonable offend other
occupants, or (i) impair on interfere with any of the Building's services,
including the furnishing of electrical energy, or the proper and economic
cleaning, air conditioning or other services of the Building or the Premises,
or impair or interfere with the use of any of the other areas of the
Building, or unreasonable discomfort, annoyance or inconvenience to Landlord
or any of the other tenants or occupants or the Building. The provision of
this Section, and the application thereof, shall not be deemed to be limited
in any way to or by the provisions of any other Section of this Article or
any of the Rules and Regulations set forth in SCHEDULE I hereto.
11.3. Tenant will not at any time use or occupy, or suffer or
permit the use or occupancy of the Premises in violation of any certificate
of occupancy issued for or insurance policies issued on the Building or any
applicable laws, statutes, rules, ordinances, orders, regulations of any
Governmental Authority (collectively, "LEGAL REQUIREMENTS"), including,
without limitation, any recycling laws or other environmental or conservation
laws. Tenant agrees that it shall promptly, at its sole cost and expense,
make any capital improvements to the Premises (including, but not limited to
installing sprinklers) which result from the Tenant's specific use of the
Premises, as opposed to Tenant's use of the Premises for general office
purposes.
11.4. (a) Tenant shall not place a load upon any floor of the
Premises that exceeds the floor load per square foot that such floor was
designed to carry and which is allowed by certificate, rule, regulation,
permit or law. If Tenant wishes to place any safe, heavy machinery, heavy
equipment, bulky matters or fixtures in the premises, it may do so at its own
expense but Landlord reserves the right to prescribe their weight and
position. Business machines and mechanical equipment in the Premises shall
be placed and maintained by Tenant, at Tenant's expense , in such manner as
shall be sufficient in Landlord's reasonable judgment to absorb vibration and
noise and prevent unreasonable annoyance or inconvenience to any other tenant
or occupant of the Building.
11.5. Tenant shall not store, use or dispose of any "hazardous
materials" or "hazardous substances" (as such terms are defined in Section
1014(14) of the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time (42 U.S.C. Section 9601
et seq.) or N.J.A.C. 7:16-1.1 or in the Industrial Site Recovery Act
("ISRA"), N.J.S.A. 13:1k-6 et seq.) in, on, under or about the Premises,
provided, however, the foregoing prohibition shall not apply to standard
office supplies, if and to the extent permitted by Environmental Laws, Tenant
shall at Tenant's own expense, comply with ISRA and all other applicable
federal, state, and local laws, promulgated with respect to hazardous
substances and the regulations promulgated thereunder applicable to the
Premises and Tenant's use thereof (the "ENVIRONMENTAL LAWS"). Tenant shall
defend, indemnify and hold harmless Landlord from and against all claims,
costs, and liabilities, including attorneys' fees, arising out of or in
connection with Tenant's breach of its obligations under this Section 11.5.
Tenant's obligations under this Section 11.5 shall survive the expiration or
earlier termination of this Lease.
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(b) Tenant shall deliver prompt to Landlord a true and
complete photocopy of any correspondence, notice, report, sampling, test,
finding, declaration, submission, order, complaint, citation or any other
instrument, document, agreement and or information submitted to, or received
from, any Governmental Authority in connection with any Environmental Law
relating to or affecting Tenant or Tenant's employees with respect to
Tenant's use of occupancy of the Premises and/or the Premises, which in each
case shall be kept confidential by Landlord.
(c) If Tenant's operations at the Premises now or hereafter
are subject to the provisions of ISRA of any other Environmental Law, then
Tenant agrees to comply, at its sole cost and expense, with all requirements
of ISRA and any other applicable Environmental Law to the satisfaction of
Landlord and the Governmental Authority having jurisdiction over such matters
including, but not limited to, performing site investigations and performing
any removal and remediation required in connection therewith), in connection
with (i) the occurrence of the Expiration Date, (ii) any termination of this
Lease prior to the Expiration Date, (iii) any closure, transfer or
consolidation of Tenant's operations at the Premises, (iv) any change in the
ownership of control of Tenant, (v) any permitted assignment of this Lease of
permitted sublease of all or part of the Premises or (vi) any other action by
Tenant which triggers ISRA or any other Environmental Law.
(d) Tenant hereby agrees to defend indemnify and hold
Landlord harmless from and against any and all claims, losses, liability,
damages and expenses (including, without limitation, site investigation
costs, removal and remediation costs and attorneys' fees and disbursements)
arising out of or in connection with (i) Tenant's use and occupancy of the
Premises, (ii) any spill or discharge of a hazardous substance or hazardous
waste by Tenant or its employees, agents and contractors and/or (iii)
Tenant's failure to comply with the provisions of this Article II.
(e) Tenant's obligations under this Article II shall survive the
expiration or earlier termination of this Lease.
11.6. (a) Landlord represents and warrants to Tenant that (i)
Landlord has received no notice of any lien, action or proceeding relating to
hazardous materials, hazardous substances or violating of Environmental Laws
with respect to the Property, (ii) no hazardous materials or hazardous
substances are present in the Building or on the Property in violation of
Environmental Laws, and (iii) the Property is in compliance with
Environmental Laws.
(b) Landlord hereby agrees to defend, indemnify and hold
Tenant harmless from and against any and all claims, losses, liabilities,
damages and expenses (including without limitation site investigation costs,
removal and remediation costs and attorneys' fees and disbursements arising
out of or in connection with (i) the environmental condition of the Property,
the Building and the Premises on or before the Commencement Date to the
extent not caused by Tenant, and/or (ii) a breach of Landlord's
representations and warranties contained in Section 11.6(a) above.
(c) Landlord's representations, warranties and obligations
under this
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Article II shall survive the expiration or earlier termination of
this Lease.
12. ASSIGNMENT AND SUBLETTING.
12.1. Subject to the terms of Section 12.11 hereof, neither
this Lease, nor the term and estate hereby granted, nor any part hereof or
thereof, shall be assigned, mortgaged, pledged, encumbered or otherwise
transferred by Tenant by operation of law or otherwise, and neither the
Premises, nor any part thereof, shall be encumbered in any manner by reason
of any act or omission on the part of Tenant or anyone claiming under or
through Tenant, in each case without the consent of Landlord. Landlord
agrees not to unreasonably withhold its consent to an assignment of this
Lease of a sublet of the Premises provided:
(a) Tenant shall furnish Landlord with (i) the name and
business address of the proposed assignee of subtenant, (ii) a copy of the
proposed assignment of subletting agreement which includes the rental amounts
to be paid by the subtenant, and (iii) information with respect to the
nature, character or the business and financial condition of the proposed
assignee of subtenant as Landlord may reasonably request.
(b) The proposed assignee or subtenant agrees to only use the
Premises for purposes expressly permitted by this Lease.
(c) No subletting shall be for a term (including renewals, if
any) ending later than one day prior to the expiration date of this Lease.
(d) No default by Tenant of its obligations hereunder shall
have occurred and be continuing either at the time that Landlord's consent to
any assignment or subletting is required or as of the date of the
commencement of the term of any such assignment or subletting.
(e) Landlord shall have no available space comparable in site
with the space proposed to be sublet.
(f) The proposed subtenant or assignee shall not then be a
tenant. Subtenant or assignee of any space in the Building.
(g) In no event shall the proposed subtenant be a person or
entity with whom Landlord is then actively negotiating to lease space in the
Building.
(h) The Premises or any part thereof shall not, without
Landlord's prior consent, be publicly advertised for subletting or
assignment at a rental rate less than the rental rate being sought by
Landlord for comparable space in the Building.
12.2. Landlord and Tenant agree that it will not be unreasonable
for Landlord to withhold its consent to any assignment of subletting it Landlord
reasonably believes that the assignment or subletting will increase Landlord's
financial risk or responsibility or jeopardize the
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enforceability of the Lease of restrict its ability to lease other space in
the Building.
12.3. Except for an assignment or sublease to an Affiliated
Company (as defined in Section 12.11 hereof), Landlord shall have the right
to be exercised by written notice given to Tenant within thirty (30) days
after the receipt of the information described in Section 12.1(a), to
recapture the entire Premises, in the case of an assignment, or the portion
of Premises proposed to by sublet by Tenant. The exercise by Landlord of its
recapture rights shall terminate this Lease with respect to the recaptured
space as of the date Tenant proposes to assign this Lease of sublet attempts
to assign this Lease of sublet the entire Premises and the Landlord exercises
its recapture rights with respect thereto, the Term shall end on the date
Tenant proposes to assign this Lease or sublet the Premises as provided int
is notice as if that date were the Expiration Date, provided in its notice as
if that date were the Expiration Date, provided that Tenant shall have
fifteen (15) days after receipt of Landlord's notice to recapture or
terminate and rescind its request for Landlord's approval to assign this
Lease of sublease the Premises. If this Lease be so terminated with respect
to less than the entire Premises, the Fixed Rent, Additional Rent and
Tenant's Proportionate Share shall be proportionally adjusted on the basis of
the number of rentable square feet retained by Tenant.
12.4. Except for an assignment or sublet to an Affiliated
Company, Tenant agrees to pay Landlord, in consideration for Landlord's
consent to the assignment or subletting, fifty percent (50%) of any Net
Profits (as hereinafter defined) received by Tenant from its assignee or
subtenant with respect thereto. For purposes hereof, the term "Net Profits"
shall mean, in the case of a sublease, the amount by which the aggregate of
all rents, additional charges or consideration payable under a sublease to
Tenant by the subtenant (including sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, equipment, furniture or other
personal property to the extent such sums exceed the fair market value or
fair market rental value of such items, as the case may be) exceed the sum of
(i) brokerage commissions due and owing to a real estate brokerage firm in
connection with the sublease, together with rent concessions, legal and
advertising expenses and construction allowances and all other costs incurred
by Tenant in securing and entering into the sublease; and in the case of an
assignment, the amount by which all sums and considerations paid to Tenant by
an assignee of this Lease for or by reason of such assignment (including sums
paid for the sale or rental of Tenant's fixtures, leasehold improvements,
equipment, furniture or other personal property to the extent such sums
exceed the fair market value or fair market rental value of such items, as
the case may be) exceed the sum of brokerage commissions due and owing to a
real estate brokerage firm, in connection with the assignment, together with
rent concessions, legal and advertising expenses and construction allowances
and all other costs incurred by Tenant in securing and entering into the
assignment, plus the Fixed Rent and all other amounts payable by Tenant,
including Additional Rent, payable by Tenant hereunder for the remainder of
the Term.
12.5. Tenant agrees to pay to Landlord an amount that will
reimburse Landlord for legal fees actually and reasonably incurred by it to
engage outside counsel to assist it in reviewing and approving any proposed
assignment to subletting.
12.6. No assignment, subletting or occupancy shall be deemed a
waiver of the provisions in this Article 12 or a release of Tenant from the
full performance by Tenant of all of the
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terms, conditions and covenants of this Lease. Each assignee of subtenant
shall assume and be deemed to have assumed this Lease and shall be and remain
liable jointly and severally with Tenant for the payment of the Fixed Rent
and Additional Rent and for the due performance of all the terms, covenants,
conditions and agreements herein contained on Tenants's part to be performed
for the Term.
12.7. If Landlord consents to any proposed assignment or
sublease and Tenant fails to consummate the assignment or sublease to which
Landlord consented with ninety (90) days after the giving of such consent,
Tenant shall be required again to comply with all of the provisions and
conditions of this Article 12 before assigning this Lease or subletting the
Premises.
12.8. Tenant agrees that under no circumstances shall Landlord
be liable in damages or subject to liability by reason of Landlord's failure
or refusal in accordance with the terms of this Article 12 to grant its
consent to any proposed assignment of this Lease of subletting of the
Premises. The rights to monetary damages are specifically and irrevocably
waived by Tenant. Tenant's only remedy for Landlord failure or refusal to
grant its consent to an assignment of sublease shall be an action for
specific performance, injunction or declaratory judgment and the costs for
seeking such remedy. Landlord acknowledges that Tenant may commence such
action by way of an expedited proceeding (e.g., Order to Show Cause) before
the Superior Court of New Jersey, Somerset County, and Landlord shall take
all reasonable actions (including acceptance of a Verified Complaint and an
Order to Show Cause) requested by Tenant to ensure that such dispute is heard
before the Superior Court in such an expedited proceeding. Landlord and
Tenant further agree that a determination of such court shall be final and
non-appealable.
12.9. If Landlord withholds its consent of any proposed
assignment or sublease, Tenant shall defend, indemnify, and hold Landlord
harmless from and reimburse Landlord for all liability, damages, costs,
fees, expenses, penalties, and charges (including, but not limited to,
reasonable attorneys' fees and disbursements) arising out of any claims that
may be made against Landlord by any brokers or other persons claiming a
commission or similar compensation in connection with the proposed assignment
of sublease.
12.10. Tenant shall deliver promptly to Landlord an executed
copy of each assignment or subletting agreement as may be authorized by this
Article within ten (10) days of the execution of any such agreement. Such
agreements shall be in form and substance satisfactory to Landlord. Any
sublease shall provide that it is subject and subordinate to this Lease and
to the matters to which this Lease is subordinate, and that in the event of
at termination of this Lease, such subtenant shall, at Landlord's option,
attorn to Landlord as its sublessor pursuant to the then applicable terms of
such sublease for the remaining term thereof, except that Landlord shall not
be (a) liable for any previous act of omission of Tenant as sublessor under
such sublease, (b) subject to any or (c) bound by any previous modification
of such sublease not consented to in writing by Landlord or by any previous
payment of rent more than one (1) month in advance.
12.11. Tenant shall have the right upon at least thirty (30)
days' prior written notice, but without having to obtain Landlord's consent,
to assign this Lease, to sublet all or any portion of
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the Premises or to sell or otherwise transfer all or a majority of the stock
in Tenant to the following parties (individually an "AFFILIATED COMPANY"):
(i) any corporation that is controlling, controlled by or under common
control with Tenant, (ii) in connection with a merger or consolidation
involving Tenant, to a surviving entity whose credit worthiness is
substantially similar to Tenant's credit worthiness as of the date of the
merger or consolidation, or (iii) to a corporation that acquires all or a
majority of Tenant's stock or assets, whose credit worthiness is
substantially similar to Tenant's credit worthiness as of the date of the
acquisition. For purposes of this Section 12.11, the terms "control", with
respect to any corporation, means the ownership of at least 50% of the voting
securities, by ownership interest contract or otherwise. For purposes of
this Lease, the term "SUCCESSOR CORPORATION" shall mean any corporation
described in clauses (ii) and (iii) of the first sentence of this Section
12.11.
12.12. Each of the following events shall be deemed to constitute
an assignment of this Lease and each shall require the prior written consent of
Landlord.
(a) any assignment or transfer of this Lease by operation of
law, except for an assignment of sublease to an Affiliated Company; or
(b) any hypothecation, pledge, or collateral assignment of
this Lease; or
(c) any involuntary assignment or transfer of this Lease in
connection with bankruptcy, insolvency, receivership, or similar proceedings;
or
(d) except as otherwise provided in Section 12.11 hereof,
other than as a result of death, any assignment, transfer, disposition, sale
of acquisition or a controlling interest in Tenant to or by any person,
entity, or group or related persons or affiliated entities, whether in a
single transaction or in a series of related or unrelated transactions; or
(e) other than as a result of death, any issuance of an
interest or interests in Tenant (whether stock, partnership interests, or
otherwise) to any person, entity, or group of related persons or affiliated
entities, whether in a single transaction or in a series of related or
unrelated transactions, which results in such person, entity, or group
holding a controlling interest in Tenant where such person, entity or group
did not so hold a controlling interest on the Commencement Date. for purposes
of the immediately foregoing, a "CONTROLLING INTEREST" of Tenant shall mean
50% or more of the aggregate issued and outstanding equitable interests
(whether stock, partnership interests, or otherwise) of Tenant or the ability
of a person to control the management or policies of Tenant.
13. DEFAULT.
13.1. Each of the following events shall constitute an "EVENT OF
DEFAULT" under this Lease:
(a) the feature of Tenant to pay an installment of Fixed Rent of
Additional
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Rent, or other sum of money whatsoever which Tenant shall be obligated to pay
under the provision of this Lease, within five (5) days after receipt of
written notice thereof, provided, however, Landlord shall not be obligated to
give Tenant notice of such non-payment if Tenant fails to pay an installment
of Fixed Rent, Additional Rent or other sum of money with such five (5) day
period more than twice during the Term;
(b) the failure of Tenant to use, or suffer or permit the use
of the Premises or any part thereof for any purpose other than as expressly
specified in Article 11 hereof;
(c) the failure of Tenant to comply with any of the
provisions of Section 11.5 hereof;
(d) the failure of Tenant to maintain the insurance required
pursuant to the terms hereof, or Tenant's failure to deliver to Landlord the
insurance certificates required herein within ten (10) days after receipt of
notice of such default;
(e) the failure of Tenant to deliver the estoppel certificate
to Landlord within the time period provided in Section 26 hereof;
(f) the failure of Tenant to deliver to Landlord the
subordination agreement required by Section 17 hereof within Premises may be
taken or occupied by someone other than Tenant;
(g) the levy of any execution of attachment against Tenant or
any of Tenant's property pursuant to which the Premises may be taken or
occupied by someone other than Tenant;
(h) if Tenant shall file a voluntary petition in bankruptcy
or insolvency, or shall be adjudicated a bankrupt or insolvent, or shall file
any petition or answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy act or any other recent of future applicable
federal, state or other statute or law, or shall make any assignment for the
benefit of creditors or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant, or of all or
any part of Tenant's property and, provided further, that within thirty (30)
days after the commencement of any such proceeding against Tenant, such
proceeding shall not have been dismissed or stayed, or if, within thirty (30)
days after the appointment of any trustee, receiver of liquidator or Tenant,
or of all or any part of Tenant's property without the consent of
acquiescence of Tenant, such appointment shall not have been vacated or
otherwise discharged, or if any execution or attachment shall be issued
against Tenant or any of Tenant's property pursuant to which the Premises
shall be taken or occupied or attempted to be taken or occupied;
(i) if any event shall occur whereby this Lease of the estate
hereby granted or the unexpired balance of the Term, would, by operation of
law or otherwise, devolve upon or pass to any person, firm or corporation
other than Tenant except as is expressly permitted
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under Article 12;
(j) if the Premises shall become vacant, deserted or abandoned
for a period of sixty (60) consecutive days;
(k) if Tenant shall assign this Lease of Sublet the Premises in
violation of the terms and provisions of Article 12 hereof; or
(l) the failure of Tenant to perform or observe any of the
other terms, covenants, conditions or agreements of this Lease, if such
failure continues for thirty (30) days after delivery by Landlord of written
notice to Tenant of such failure (provided, that in the case for any such
default which cannot be cured by the payment of money and cannot with
diligence be cured within said 30-day period, if Tenant shall commence
promptly to cure the same and thereafter prosecutes the curing thereof with
diligence and provides Landlord with written evidence thereof, the term
within which such default may be cured shall be extended for sixty (60) days.
13.2. In the event Tenant become a debtor in a case pending
under the Bankruptcy Code (11 U.S.C. Section 101 et. seq.), Landlord's right
to terminate this Lease shall be subject to this case may be, to assume or
assign this Lease. To the extent permitted or allowed by law, the trustee or
debtor shall not have the right to assume or assign this Lease, until the
trustee or debtor (i) promptly cures all defaults under the lease, (ii)
promptly compensates Landlord for monetary damages incurred as a result of
such default, and (iii) provides "ADEQUATE ASSURANCE OF FUTURE PERFORMANCE" ,
which shall mean, in addition to any other requirements of 11 U.S.C. Section
365(b) (3), that all of the following have been satisfied: (a) in addition to
rent payable under the Lease, the trustee or debtor shall establish with
Landlord a security deposit equal to three months of Fixed Rent; (b) maintain
said security deposit in said amount whenever it is drawn upon by Landlord;
(c) trustee or debtor must agree that Tenant's business hall be conducted in
a first class manner; and (d) the use of the Premises shall not change, if
all the foregoing are not satisfied, Tenant shall be deemed not to have
provided Landlord with adequate assurance of future performance of this Lease.
14. REMEDIES OF LANDLORD.
14.1. If any time during the term of this Lease, one or more
Events of Default shall have occurred and shall not have been remedied, then,
and in any such case, Landlord at Landlord's option may elect to:
(a) terminate this Lease at any time by giving notice of
termination to Tenant, and the Term shall expire by limitation upon the date
prescribed in such notice as fully and completely as if said date ere the
date herein originally fixed for the expiration of the Term, and Tenant shall
thereupon quit and peacefully surrender the Premises to Landlord without
payment therefor by Landlord; or
(b) re-enter the Premises, and remove all persons and property
therefrom,
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either by summary proceedings, any other proceeding at law or by any
other suitable action.
14.2 In the event of the termination of this Lease, or of
reentry by summary proceedings, ejectment of by any suitable action or
proceeding at law, or by agreement, or by force or otherwise, by reason of
default hereunder on the part of Tenant or Tenant's abandonment of the
Premises, Tenant shall pay Landlord as damages, at the election of Landlord,
either:
(a) sums equal to the Fixed Rent and the Additional Rent
payable hereunder which should have been payable by Tenant had this Lease not
so terminated, or had Landlord not so reentered the Premises, payable
monthly, in advance, but otherwise upon the terms therefor specified herein
following such termination or such reentry and until the conclusion of the
Term, provided, however, that if Landlord shall re-let the Premises or any
portion or portions thereof during said period, Landlord shall credit Tenant
with the net rents received by Landlord from such re-letting, such net rents
to be determined by first deducting from the gross rents as and when received
by Landlord from such terminating the Lease or in reentering the Premises,
including reasonable attorneys' fees, and in securing possession thereof, as
well as the expenses of reletting, including altering and preparing the
Premises or any portion or portions thereof for new tenants, moving
allowance, brokers' commissions, advertising expenses, and all other expenses
properly chargeable against the Premises and the rental therefrom; it being
understood that any such re-letting may be for a period shorter or longer
than the remaining term of this Lease, but in no event shall Tenant be
entitled to receive any excess of such net rents over the sums payable by
Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for
the collection of damages pursuant to this subsection to a credit in respect
of any net rents from a reletting, except to the extent that such net rents
are actually received by Landlord. If the Premises or any part thereof
should be re-let in combination with other space, then proper apportionment
shall be made of the rent received from such reletting, and Landlord shall
have the right to grant reasonable rent concessions to attract one or more
new tenants and to permit the term of any new lease covering part or all of
the Premises to be for a shorter or longer period than provided for herein; or
(b) on demand, a liquidation sum which at the time of such
termination of this Lease or at the time of any such reentry by Landlord, as
the case may be, represents the aggregate of the Fixed Rent and the
Additional Rent payable hereunder which would have been payable by Tenant
(conclusively presuming the Additional Rent to be the same as was payable for
the year immediately proceeding such termination) for the period commencing
with such earlier termination of this Lease or the date of such reentry, as
the case may be, and ending with the conclusion of the Term, had this Lease
not so terminated or had Landlord not so reentered the Premised discounted at
a rate equal to the interest rate announced publicly by Citibank, N.A. as its
Base Rate from its New York City office.
14.3. If the Premises or any part thereof be re-let by Landlord
for the unexpired portion of the Term, or any part thereof, before
presentation of proof of such damages to any court, commission or tribunal,
the amount of rent reserved upon such re-letting shall, prima facie, be the
rental value, for purposes of Section 14.2(b), for the Premises, or part
thereof, so re-let during the term of the re-letting. Landlord shall in no
event and in no way be responsible or liable for any failure to relet the
Premises or any part thereof or for
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failure to collect any rent due upon any such re-letting.
14.4. In the event Landlord elects to collect damages from
Tenant under Section 14.2(a), at any time subsequent to such election and
upon ten (10) days prior written notice to Tenant, Landlord may elect to
collect a lump sum under Section 14.2(b), crediting Tenant with amounts
theretofore received by Landlord as damages.
14.5. The foregoing Sections of this Article shall also apply if
the default by Tenant has occurred prior to the Commencement Date and/or prior
to Tenant taking possession of the Premises.
14.6. Landlord, in putting the Premises in good order or
preparing the same for re-rental may, at Landlord's option, make such
alterations, repairs, replacements, and decorations in the Premises as
Landlord, in Landlord's sole judgment, considers advisable and necessary for
the purpose of re-letting the Premises, and the making of such alterations,
repairs, replacements, and decorations shall not operate or be construed to
release Tenant from liability hereunder as aforesaid.
14.7. Mention in this Lease of any particular remedy shall not
preclude Landlord from any other remedy, in law or in equity.
14.8. Notwithstanding anything to the contrary contained in
this Lease, Tenant hereby expressly waives all rights Tenant may have under
J.J.S.A. 3A:18-60 or other similar statute permitting transfer to the
Superior Court of any action for the removal of a lessee.
15. DESTRUCTION, FIRE OR OTHER CASUALTY.
15.1 If the Building, the Premises or any improvement therein,
excepting all items which Tenant is obligated to insure pursuant to Section
10.1, now or hereafter erected in or upon the Building shall be damaged or
destroyed, by fire, storm, earthquake or other casualty, then, Tenant shall
give prompt notice thereof to Landlord and Landlord shall, at Landlord's cost
and expense, proceed with reasonable diligence to conduct any necessary
demolition and to repair and restore the Building, the Premises or the Base
Landlord Work subject to the provisions of Section 15.2
15.2 Landlord shall have no obligation to repair or replace
the Landlord Work, the Special Work, the Data Center Work or any of Tenant's
furniture, equipment or supplies destroyed by fire, storm, earthquake, water
or other casualty.
15.3 If (a) the Building or the Premises is damaged or
destroyed to the extent that Landlord determines that the Building or the
Premises or access to the Premises cannot, with reasonable diligence, be
fully repaired or restored by Landlord within two hundred seventy (270) days
after the date of the damage or destruction, notwithstanding the fact that
the Premises may have not been damaged or destroyed, (b) the Building is
damaged and the total cost of restoration shall amount to fifty percent (50%)
or more of the full insurable value of the Building,
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(c) the proceeds of Landlord's insurance recovered or recoverable as a result
of the damage plus deductibles shall be insufficient to pay fully for the
cost of replacement of the Building (or that would have been recovered ro
recoverable had Landlord obtained customary insurance (instead of
self-insuring) for similar buildings located in a similar area), or (d)
twenty percent (20%) or more of the Premises shall be damaged within the last
three (3) years of the Term, then, in any such event, Landlord may terminate
this Lease by delivering notice thereof to Tenant. Landlord's reasonable
determination with respect to the extent of damage or destruction shall be
binding upon Tenant, Landlord shall notify Tenant of Landlord's determination
(containing an estimate of the damage, the time for repairing the damage, the
adequacy of insurance coverage and whether Landlord elects to terminate), in
writing, as soon as reasonably possible, but in any event prior to the date
which is sixty (60) days after the date of the damage or destruction. Tenant
shall have the right to terminate this Lease by delivering written notice
thereof to Landlord (within 20 days after receipt of Landlord's determination
or notice to Tenant) if either of the events described in clauses (a) or (d)
shall occur. If either party elects to terminate this Lease under this
Article 15, the effective date of the termination shall be the date of such
casualty. Furthermore, it neither Landlord nor Tenant has terminated this
Lease, and the repairs are not actually completed within such 270-day period,
Tenant shall have the right to terminate this Lease during the first five (5)
business days of each calendar month following the end of such period until
such time as the repairs are completed, by notice to Landlord (the "DAMAGE
TERMINATION NOTICE"), effective as of the date set forth in the Damage
Termination Notice (the "DAMAGE TERMINATION DATE"), which Damage Termination
Date shall not be less than ten (10) business days following the end of each
such month. Notwithstanding the foregoing, if Tenant delivers a Damage
Termination Notice to Landlord, then Landlord shall have the right to suspend
the occurrence of the Damage Termination Date for a period ending thirty (30)
days after the Damage Termination Date set forth in the Damage Termination
Notice by delivering to Tenant, within five (5) business days of Landlord's
receipt of the Damage Termination Notice, a certificate of Landlord's
contractor responsible for the repair of the damage certifying that it is
such contractor's good faith judgment that the repairs shall be substantially
completed within thirty (30) days after the Damage Termination Date. If
repairs shall be substantially completed prior to the expiration of such
thirty (30) day period, then the Damage Termination Notice shall be of no
force and effect, but if such repairs shall not be substantially completed
within such thirty (30) day period, then the this Lease shall terminate upon
the expiration of such thirty (30) day period.
15.4. If the Premises are partially or totally destroyed or
damaged and Tenant is unable to occupy and use all or any portion of the
Premises as a result thereof, the Fixed Rent and Additional Rent shall be
abated in proportion to the degree to which Tenant's reasonable use and
occupancy of the Premises is so interrupted until the Premises are once again
usable. Except for abatement, if any, of Fixed Rent and Additional Rent,
Tenant shall have no claim against Landlord for any damages suffered by
reason of any such damage, destruction, repair or restoration.
16. CONDEMNATION.
16.1. In the event that the whole of the Premises shall be
taken by condemnation or in any other manner for any public or quasi public
use or purpose (other than for temporary use or occupancy) (a "TAKING") or if
the Property or Building or any part thereof, is subject to a Taking
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such that the Building or the Premises is unfit for its current use or a
substantial portion of the Premises is untenantable or inaccessible, then the
Term shall cease and terminate as of the date when possession is taken by the
condemning authority and all Fixed Rent and Additional Rent shall be paid up
to that date.
16.2. In the event of a Taking of thirty (30%) percent or more
of the Premises, then, if Tenant shall determine in good faith and certify to
Landlord that because of such Taking, continuance of its business at the
Premises would be uneconomical, Tenant may elect to terminate this Lease at
any time either prior to or within a period of sixty (60) days after the date
when possession of such premises shall be required by the condemning
authority. In the event that Tenant shall fail to exercise any such option
to terminate this Lease, or in the event of a taking of the Premises under
circumstances under which Tenant will have no such option, then, and in
either of such events, Landlord shall restore the Premises so that it is a
completed unit as soon as reasonably practicable, but in no case later than
ninety (90) days after the Taking, subject to any Unavoidable Delays, and the
Fixed Rent and Additional Rent thereafter payable during the Term shall be
equitably prorated based upon the rentable square foot area of the Premises
actually taken.
16.3. In the event of any Taking of all or any part of the
Premises, Landlord shall be entitled to receive the entire award for any such
acquisition or condemnation. Tenant shall have no claim against Landlord or
the condemning authority for the value of any unexpired portion of the Term
and Tenant hereby expressly assigns to Landlord all of its right, title and
interest in and to any such award, and also agrees to execute any and all
further documents that may be required in order to facilitate the collection
thereof by Landlord. Nothing contained herein shall be deemed to prevent
Tenant from making a separate claim in any condemnation proceedings for any
moving expenses and for the value of any Tenant's property which would be
removable at the end of the Term pursuant to the provisions of this Lease.
17. SUBORDINATION.
17.1. (a) This Lease and the term and estate hereby granted are
and shall be subject and subordinate to the lien of each mortgage which may
now or at any time hereafter affect all or any portion of the Premises or
Landlord's interest therein and to all ground leases which may now or at any
time hereafter affect all or any portion of the Premises (any such mortgage
or ground lease being herein called a "SUPERIOR MORTGAGE") and each and every
advance made or hereafter to be made under a Superior Mortgage and to all
renewals, modifications, replacements, substitutions and extensions of a
Superior Mortgage; provided, that, Landlord obtains what is commonly known as
a "nondisturbance" agreement in form and substance reasonably satisfactory to
Tenant and the holder of the Superior Mortgage.
(b) The foregoing provisions for the subordination of this Lease
and the term and estate hereby granted to the holder of a Superior Mortgage
shall be self-operative and no further instrument shall be required to effect
any such subordination; provided, however, at any time and from time to time,
upon not less than ten (10) days' prior notice by Landlord, Tenant shall
execute, acknowledge and deliver to Landlord any and all reasonable
instruments that may be necessary or
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proper to effect such subordination or to confirm or evidence the same.
17.2. If all or any portion of Landlord's estate in the
Premises shall be sold or conveyed to any person, firm or corporation upon
the exercise of any remedy provided for in any corporation and each person,
firm or corporation thereafter succeeding to its interest in the Premises
shall (a) not be liable for any act or omission or Landlord under this Lease
occurring prior to such sale or conveyance, (b) not be subject to any offset,
defense or counterclaim accruing prior to such sale or conveyance unless
expressly provided in the estoppel certificate delivered in connection with
such transfer, if any, (c) not be bound by any payment prior to such sale or
conveyance of Fixed Rent, Additional Rent or other payments for more than one
month in advance (except prepayments in the nature of security for the
performance by Tenant of its obligations hereunder), and (d) be liable for
the keeping, observance and performance of the other covenants, agreements,
terms, provisions and conditions to be kept, observed and performed by
Landlord under this lease only during the period such person, firm or
corporation shall hold such interest.
17.3. In the event of an act or omission by Landlord which
would give Tenant the right to terminate this Lease or to claim a partial or
total eviction, Tenant will not exercise any such right until it has given
written notice of such act or omission, or, in the case of the Premises or
any part thereof becoming untenantable as the result of damage from fire or
other casualty, written notice of the occurrence of such damage, to the
holder of any Superior Mortgage whose name and address shall previously have
been furnished to Tenant in writing, and, unless such act, omission or damage
shall have elapsed following such giving of such notice, provided any such
holder, with reasonable diligence, shall, following the giving of such
notice, have commenced and continued to remedy such act, omission or damage
or to cause the same to be remedied.
17.4. If, in connection with obtaining financing for the
Premises or refinancing any Superior Mortgage, the prospective lender
requests reasonable modifications to this Lease as a condition precedent to
such financing or refinancing, then Tenant hereby covenants and agrees not to
unreasonably withhold, delay or condition its consent to such modifications,
provided such modifications do not increase the Fixed Rent or Additional
Rent, do not reduce the length of the Term, do not materially and adversely
affect the leasehold interest created by this Lease and do not materially and
adversely affect the manner in which Tenant's operations are conducted at the
Premises or Tenant's rights or obligations under this Lease.
18. INDEMNIFICATION AND HOLD HARMLESS.
18.1. Tenant on behalf of itself and any party holding by,
through or under Tenant, agrees to indemnify and hold harmless Landlord, its
agents, contractors, employees, and the holder of any Superior Mortgage in
the following manner:
(a) against any default under this Lease by Tenant or any
party holding by, through or under Tenant for any damages, costs, claims or
liabilities, including reasonable attorneys' fees, sustained by Landlord or
any party holding by, through or under Landlord to the extent incurred as a
result of such default;
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(b) against any and all claims, damages, losses and
liabilities, including reasonable attorneys' fees, whatsoever their nature,
cause or origin to the extent attributable in any manner to the omission,
fault, willful act, negligence or other misconduct of Tenant, its agents,
contractors, employees, licensees or invitees arising out of the use and
occupancy of the Premises by Tenant, its agents, contractors, employees,
licensees or invitees; and
(c) against any and all damages or injury to the Premises or
the Building, to the extent caused by Tenant, its agents, contractors,
employees, licensees, or invitees unless same is attributable to the
omission, fault, willful act, negligence or other misconduct of Landlord, its
agents, contractors, employees, licensees or invitees.
19. LANDLORD'S LIABILITY.
19.1. Landlord shall not be liable to Tenant for any
compensation or reduction of Fixed Rent or Additional Rent or for damages
arising from an interruption of Tenant's business by reason of inconvenience
or annoyance or for loss of business arising from the necessity of Landlord
or its agents entering the Premises for any of the purposes in this Lease
authorized, or for repairing the Premises or any portion of the Property,
provided, however, if Landlord fails to provide Tenant with reasonable prior
notice of such entry or repair (except in the case of an emergency when on
notice is required), Landlord shall be liable for any property damage
suffered by Tenant resulting from Landlord's acts in connection with such
repairs. In case Landlord is prevented or delayed from making any repairs,
alterations or improvements, or furnishing any services or performing any
other covenant or duty to be performed on Landlord's part by reason of an
Unavoidable Delay, as defined in Section 38.2, Landlord shall not be liable
to Tenant therefor, nor shall Tenant be entitled to any abatement or
reduction of rent by reason thereof, nor shall the same give rise to a claim
in Tenant's favor that such failure constitutes actual or constructive, total
or partial, eviction from the Premises.
19.2. Landlord or its agents shall not be liable for any loss
of or damage to any property of Tenant by theft, nor for any injury or damage
to persons or property resulting from any cause of whatsoever nature unless
such loss or damage is caused by the gross negligence, fraud or willful
misconduct of Landlord; nor shall Landlord or its agents be liable for any
such damage caused by other tenants of the Building or persons, in, upon or
about the Premises or caused by operations in construction of any private,
public or quasi-public work.
19.3. In any action brought to enforce the obligations of
Landlord under this Lease, any judgment or decree shall be enforceable
against Landlord only to the extent of Landlord's interest in the Property
and no such judgment shall be the basis of execution on, or be a lien on,
assets of Landlord other than its interest in the Property.
20. CUMULATIVE REMEDIES.
21.1. If Tenant shall fail to perform any term, covenant or
agreement contained herein to be performed by Tenant, Landlord may elect to make
advances to perform the same or to cause the same to be performed, in which
event Tenant, shall pay to Landlord all such sums
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advanced by Landlord, as Additional Rent, on the date on which the next
installment of Fixed Rent is due hereunder following delivery by Landlord of
an invoice therefor. All such sums advanced by Landlord, shall accrue
interest commencing on the date of Landlord's advance at the higher of 12%
per annum, or the then prime rate of Citibank, N.A. in New York City, but in
no event higher than the highest rate of interest permitted by law computed
from the date of each advance to the date such sums are paid to Landlord.
Anything to the contrary herein notwithstanding any such advances made by
Landlord shall not be or be deemed a waiver of any default on the part of
Tenant in the observance of the terms, covenants and agreements under this
Lease or of any rights or remedies of Landlord upon any such default.
22. NO WAIVER BY LANDLORD.
22.1. The failure of Landlord to insist in any instance on
strict performance of any covenant or condition hereof, or to exercise any
option herein contained, shall not be construed as a waiver of such covenant,
condition or option in any other instance. Unless otherwise expressly
provided herein, this Lease cannot be changed or terminated except in writing.
23. LANDLORD'S RIGHT TO EXHIBIT THE PREMISES.
23.1. During the last twelve (12) months of the term of this
Lease (if Tenant has not elected to renew the Lease), Landlord or its agents
or designees may have admission to the Premises at all reasonable hours and
upon advance notice for the purpose of exhibiting the same to prospective
lessees of all or any part of the Building.
24. NO ACCEPTANCE OF SURRENDER.
24.1. No act or thing done by Landlord or Landlord's agents or
employees during the Term of this Lease shall be deemed to accept a surrender
of the Premises by Tenant and a termination of this Lease, or shall be valid,
unless in writing, signed by Landlord.
25. QUIET ENJOYMENT.
25.1. If and so long as Tenant pays the Fixed Rent, Additional
Rent and all other sums agreed to be paid by the Tenant under this Lease and
promptly and faithfully performs and observes the terms, covenants and
agreements in this Lease provided to be performed and observed by Tenant,
Tenant quietly shall have and enjoy the Premises from hinderance by Landlord
or anyone claiming through Landlord.
26. ESTOPPEL CERTIFICATES.
26.1. Within ten (10) days after receipt of request therefor,
Tenant will certify to the Landlord and to any party named by Landlord, (a)
that as of the date of such certification, whether or not this Lease is in
full force and effect; (b) that, to Tenant's best knowledge, neither party to
this Lease is in default in keeping, observing or performing any term,
covenant, agreement,
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provision, condition or limitation contained in this Lease, and, if in
default, specifying each such default and whether or not to the best
knowledge of the person making such certification, any event has occurred
which with the passage of time, the giving of notice, or both would
constitute a default hereunder; (c) the last day to which the Fixed Rent and
Additional Rent payable under this Lease have been paid; (d) that Tenant
neither has nor claims to have any right of set-off or deduction against the
payment of Fixed Rent or Additional Rent, or if a right of set-off or
deduction is alleged, specifying the nature and extent thereof; and (e) any
other information reasonably represented by Landlord.
27. PARKING.
27.1. Tenant's occupancy of the Premises shall include, at no
additional cost to tenant, the use of One Hundred Forty (140) unassigned
parking spaces and six (6) reserved parking spaces. Without limitation to
the foregoing, upon each Inclusion Date, First Refusal Inclusion Date and
First Offer Inclusion Date (as those terms are defined below), as the case
may be, Tenant shall be entitled to additional unassigned parking spaces at a
rate of four (4) spaces per 1,000 rentable square feet so leased.
28. NOTICE.
28.1. Any and all notices, consents, approvals, requests and
other communications (collectively, "NOTICES") required to be given or served
by the terms and provisions of this Lease, either by Landlord to Tenant, or
by Tenant to Landlord, shall be in writing and signed by the party giving the
notice, or by a duly authorized officer or representative of a corporate
party, and shall be deemed to have been delivered by Landlord upon receipt if
sent by certified mail, return receipt requested, proper postage prepaid or
by reputable overnight courier and addressed to the party to be notified.
Notice on behalf of either party shall be addressed to that party at the
address set forth below, or to such other address as that party hereafter
shall furnish in writing to the other party:
To Landlord:
The Mutual Life Insurance Company of New York
c/o MONY Real Estate Investment Management
One Atlantic Street
Stamford, Connecticut 06901
Attention: Asset Management Vice President
with a copy to:
The Mutual Life Insurance Company of New York
1740 Broadway
New York, NY 10019
Attention: Senior Legal Counsel
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To Tenant:
U.S. Servis, Inc.
220 Davidson Avenue
Somerset, New Jersey 08873
Attention: Chief Financial Officer
29. BIND AND INURE.
29.1. The terms, covenants and conditions contained in this
Lease shall bind and inure to the benefit of the successors and assigns of
the parties with the same effect as if mentioned in each instance where a
party is named or referred to, except that no violation of the provisions of
Article 12 shall operate to vest any rights in any successor or assignee of
Tenant.
29.2. The obligations of Landlord under this Lease shall no
longer be binding upon Landlord named herein after the sale, assignment or
transfer by Landlord named herein (or upon any subsequent landlord after the
sale, assignment or transfer by such subsequent landlord) of its interest in
the Property as owner or lessor, and in the event of such sale, assignment or
transfer, such obligations shall thereafter be binding upon the grantee,
assignee or other transferee of such interest, and any such grantee, assignee
or transferee, by accepting such interest, shall be deemed to have assumed
such obligations. A lease of Landlord's entire interest in the Property
shall be deemed a transfer for the purposes of this Section.
29.3. Nothing contained in this Lease shall be deemed to confer
upon any tenant, or anyone claiming under or through any tenant, any right to
insist upon, or to enforce against Landlord or Tenant, the performance or
observance by Tenant of its obligations hereunder or under the Rules and
Regulations.
30. WAIVER OF TRIAL BY JURY.
30.1. Landlord and Tenant hereby waive trial by jury in any
action, proceeding or counterclaim brought by either against the other on any
matter whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use of or occupancy of the
Premises, and any statutory remedy.
30.2. In the event Landlord commences any summary proceeding or
other action for breach of this Lease, Tenant covenants and agrees that it will
not interpose any counterclaim of whatsoever nature or description in any such
proceeding, unless Tenant would be precluded from bringing such claim in a
separate action.
31. BROKERAGE FEES.
31.1. Tenant represents that there were no brokers instrumental in
consummating this lease except Cushman & Wakefield of NJ, Inc. and Edward S.
Gordon Company of New Jersey,
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Inc. Tenant agrees to hold Landlord harmless from and against any and all
claims or demands for brokerage commissions arising out of or in connection
with the execution of this Lease based on conversations or negotiations with
Tenant on the part of any broker other than the above-named brokers, whose
fees shall be paid by Landlord in accordance with a separate agreement.
32. EXECUTION.
32.1. This Lease may be executed in counterparts, each of which,
when taken together, shall constitute one and the same agreement.
33. RECORDATION OF LEASE.
33.1. In no event shall Tenant have the right to record this Lease
and any such recording shall constitute an Event of Default.
34. SURRENDER.
34.1. On the last day of the Term, or upon any earlier
termination of this Lease, or upon any rightful re-entry by Landlord upon the
Premises, Tenant shall, at its own expense, quit and surrender the Premises
to Landlord broom clean, in good order, condition and repair, except for
ordinary wear, tear and damage by fire or other insured casualty, together
with all improvements which have bene made upon the Premises (except as
otherwise provided for in this Lease, including, but not limited to, in
Articles 6 and 7 hereof). Tenant shall remove from the Premises and the
Building all of Tenant's property, including, without limitations all
furniture, trade fixtures and equipment and all personal property and
personal effect of all persons claiming through or under Tenant, except as
previously agreed by Landlord and Tenant, shall pay the cost of repairing all
damage to the Premises and the Building occasioned by such removal and shall
deliver all keys and pass cards to Landlord.
34.2. If the Premises are not surrendered at the expiration of
the Term, Tenant shall indemnify Landlord against loss or liability resulting
from delay by Tenant in so surrendering the Premises, including any claims
made by any succeeding tenant founded on such delay. If the Premises shall
not be surrendered upon the termination of this Lease, Tenant shall be deemed
to be occupying the Premises as a Tenant from month-to-month, subject to all
the terms and provisions of this Lease insofar as the same are applicable to
a month-to-month tenancy, at a monthly rental equal to twice the sum of: (i)
the monthly installments of Fixed Rent; (ii) the Monthly Tax Payment for the
last month of the Term; and (iii) Tenant's Projected Share for the last month
of the Term.
34.3. Tenant's obligations under this Article shall survive the
Expiration Date or sooner termination of this Lease.
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35. ACCESS; CHANGE IN FACILITIES.
35.1. Landlord reserves the right, at any time, without
incurring any liability to Tenant therefor, to make such changes in or to the
Building and the fixtures and equipment of the Building, as well as in the
entrances, passageways, halls, doors, doorways, corridors, elevators,
escalators, stairs, toilets and other public parts of the Building, as it may
reasonably deem necessary or desirable, provided any such change does not
deprive Tenant of access to the Premises, interfere with the use of the
Premises, nor reduce the area of the Premises in excess of five percent (5%)
in the aggregate (provided an appropriate adjustment in Fixed Rent and
Tenant's Proportionate Share due to such reduction in the area of the
Premises is made).
35.2. Tenant shall permit Landlord to install, use and maintain
pipes, ducts and conduits within or through the Premises, or through the
walls, columns and ceilings therein, provided that the installation work is
performed (and the result is such that) at such times and by such methods as
will not unreasonably interfere with Tenant's use and occupancy of the
Premises, or damage the appearance thereof.
35.3. Landlord or Landlord's agents shall have the right upon
reasonable prior notice to Tenant at all reasonable hours (except) in the
case of an emergency, in which case no notice is required to be given by
Landlord) to enter the Premises for any of the purposes specified in this
Article and (a) to examine the Premises or for the purpose of performing any
obligation of Landlord or exercising any right or remedy reserved to Landlord
in this Lease; (b) in the last four months of the Lease (if Tenant has not
elected to renew the Lease), and at reasonable times, to exhibit the Premises
to others; (c) to make such decorations, repairs, alterations, improvements
or additions, or to perform such maintenance, including the maintenance of
all air-conditioning, elevator, plumbing, electrical, sanitary, mechanical
and other service or utility systems as Landlord may reasonably deem
necessary or desirable; (d) to take all materials into and upon the Premises
that may be required in connection with any such decorations, repairs,
alterations, improvements, additions or maintenance; and (e) to alter,
renovate and decorate the Premises at any time during the Term if Tenant
shall have removed all or substantially all of Tenant's Property from the
Premises and stopped paying Fixed Rent; provided, however, Landlord shall
perform the work or exercise its rights described in clauses (a) through (d)
in the manner so as not to unreasonably interfere with Tenant's business.
35.4. The exercise of any right reserved to Landlord in this
Article shall not constitute an actual or constructive eviction, in whole or
in part, or entitle Tenant to any abatement or diminution or rent, or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Landlord or Landlord's agents.
36. INTEGRATION OF AGREEMENT.
36.1. This lease contains the entire agreement of the parties
hereto and no representations, inducements, promises or agreements, oral or
otherwise, between the parties not embodied herein, shall be of any force or
effect. If any term or provision of this Lease shall be
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invalid or unenforceable, the remaining terms and provisions hereof shall not
be affected thereby. If the application of any term or provision of this
Lease to any person or circumstance shall to any extent be invalid or
unenforceable such term or provision shall remain applicable as to those
persons or circumstances to which it shall be valid and enforceable to the
fullest extent permitted by law.
37. SECURITY DEPOSIT. Upon the execution of this Lease, Tenant
shall deposit with Landlord the sum of $600,000.00, the same to be held by
Landlord, separate from other funds of Landlord, in a federally insured
interest bearing account, as security for the full and faithful performance
by Tenant of the terms and conditions by it to be observed and performed
hereunder. Provided that Tenant is not in default of any of its obligations
under the Lease, within thirty (30) days after the end of a calendar year
included within the Term, Landlord shall deliver to Tenant any accrued
interest earned on the security deposit within the prior calendar year. If
any Fixed Rent, Additional Rent or other sum payable by Tenant to Landlord
becomes overdue and remains unpaid, or should Landlord make any payments on
behalf of Tenant, or should Tenant fail to perform any of the terms and
conditions of this Lease on its part to be performed, then Landlord, at its
option, and without prejudice to any other remedy which Landlord may have on
account thereof, shall appropriate and apply said deposit, or so much thereof
as may be required to compensate or reimburse Landlord, as the case may be,
toward the payment of Fixed Rent, Additional Rent or other such sum payable
hereunder, or loss or damage sustained by Landlord due to the breach or
failure to perform on the part of Tenant, and within ten (10) business days
after demand, Tenant shall restore such security to the original sum
deposited. Tenant shall not assign or encumber, or attempt to assign or
encumber, the security deposit, and Landlord shall not be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
37.2. Conditioned upon the full compliance by Tenant of all of
the terms of this Lease, and the prompt payment of all sums due hereunder,
without default, Landlord agrees to return 14% of the security deposit to
Tenant by January 31, of each calendar year included within the Term
beginning on January 31, 1998.
37.3. In the event of any transfer of title to the Building,
Landlord shall transfer the security deposit to said transferee and/or
assignee, and, upon written confirmation of said transfer executed by
Landlord and said transferee and/or assignee, Landlord shall be released by
Tenant from all liability for the return of such security deposit. In such
event, Tenant agrees to look to the new Landlord for the return of said
security deposit. It is hereby agreed that the provisions of this Section
shall apply to every transfer or assignment made of the security deposit to a
new landlord.
37.4. In the event of bankruptcy or other debtor-creditor
proceedings against Tenant, such security deposit shall be deemed to be
applied first to the payment of Rent and other charges due Landlord for all
periods prior to filing of such proceedings.
37.5. (a) In lieu of depositing cash as a security deposit
upon the execution of this Lease, Tenant may elect to deliver to Landlord a
one (1) year, irrevocable unconditional letter of credit issued by a
commercial bank having an office within the New York City/Northern New Jersey
metropolitan area (which bank shall have a rating of A or better by Moody or
any successor
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thereto) for the benefit of Landlord, containing terms reasonably
satisfactory to Landlord. The face amount of the letter of credit delivered
to Landlord on the execution of this Lease shall be $600,000.00, and the face
amount of any substitute letter of credit delivered to Landlord shall be
equal to the amount of the security deposit then required under this Lease.
Without limitation to the foregoing, the stated amount shall be reduced in
accordance with the terms of Section 37.2 above and Landlord will consent to
any such amendment to the letter of credit providing for such reduction.
(b) Landlord shall have the right to draw down the letter of
credit for any of the reasons set forth in Section 37.1 for the application
of the cash deposit in an amount equal to the Fixed Base Rent, Additional
Rent or other sum payable hereunder, or the loss or damage sustained by
Landlord due the breach or failure to perform on the part of Tenant. To
exercise such right, (i) Landlord shall present the letter of credit to the
issuing bank at the office in new York City/Northern New Jersey set forth on
the letter of credit and (ii) Landlord shall deliver to the issuing bank a
statement from Landlord setting forth the amount of the draw and stating that
Landlord is entitled to draw down the letter of credit pursuant to the
provisions of Section 37.5 of this Lease. Landlord shall apply the proceeds
thereof towards the payment of the Fixed Rent, Additional Rent or such other
sum payable hereunder, or the loss or damage sustained by Landlord due to the
breach or failure to perform on the part of Tenant, and Landlord shall hold
the balance, if any, in accordance with the provisions of Section 37.1
hereof. Within ten (10) business days after demand, Tenant shall deposit
with Landlord an amount (either in the form of cash or in form of a letter of
credit) equal to the portion of said proceeds applied pursuant to the
provisions of the immediately preceding sentence.
(c) At least thirty (30) days prior to the expiration of the
letter of credit delivered by Tenant to Landlord with this Lease, or the
expiration of any substitute letter of credit, or within thirty (30) days
after Moody (or any successor) has lowered the rating of the issuing bank
below A, whichever the case may be, Tenant shall deliver to Landlord a
replacement letter of credit issued by a commercial bank having an office
within the New York City/Northern New Jersey metropolitan area (which bank
shall have a rating of A or better by Moody or any successor thereto)
containing the same terms and for the face amount then required under Section
37.5(a). In the event Tenant fails to deliver said replacement letter of
credit on or before the date set forth above, Landlord shall have the right
to draw down the entire amount of the letter of credit. To exercise such
right, (i) Landlord shall present the letter of credit to the issuing bank at
the office in New York City/Northern New Jersey set forth on the letter of
credit and (ii) Landlord shall deliver to the issuing bank a statement from
Landlord stating that Landlord is entitled to draw down the letter of credit
pursuant to the provisions of Section 37.5 of this Lease. The proceeds of
said letter of credit shall be held by Landlord pursuant to the provisions of
Section 37.1 hereof.
(d) Notwithstanding anything to the contrary contained
herein, Tenant hereby expressly acknowledges that the drawing down of said
letter of credit shall not operate as a waiver of or preclude Landlord from
exercising any of Landlord's other rights and remedies under this Lease. In
addition, Tenant hereby agrees that Landlord shall not be required to give
Tenant any prior notice of the drawing down of the letter of credit, and
Tenant hereby waives
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any such notice to which it may be entitled.
(e) In the event of an assignment of this Lease by Landlord,
Tenant shall obtain either (i) a new letter of credit from the issuing bank
containing the same terms and for the same face amount as the letter of
credit then held by Landlord which names the new landlord as the beneficiary
or (ii) the written consent of the issuing bank to the assignment of the then
existing letter of credit from the existing Landlord to the new Landlord in
form and substance reasonably satisfactory to the new Landlord.
38. UNAVOIDABLE DELAYS.
38.1. In the event Landlord or Tenant shall be delayed in the
performance of any act or obligation hereunder by reason of Unavoidable
Delays, then performance of such act or obligation shall be excused for the
period of the delay, the period for the performance of any such act or
obligation shall be extended for a period equivalent to the period of such
delay and, except as provided for in the Articles 15 and 16, the obligations
of Tenant to pay rent and perform all of the terms, covenants and conditions
on the part of Tenant to be performed shall in no way be affected, impaired
or excused as a result of such delay.
38.2. "UNAVOIDABLE DELAYS" shall mean any and all delays beyond
Landlord's reasonable control, including, without limitation, delays caused
by Tenant, governmental restrictions, governmental regulations, controls,
undue delays, order of civil, military or naval authority, governmental
preemption, strikes, labor disputes, lock-outs, shortage of labor or
materials, inability to obtain materials or reasonable substitutes therefor,
inability to obtain any necessary governmental permits or approvals (except
if such inability is caused by the negligence of Landlord), default of any
building or construction contractor or subcontracts, acts of God, fire,
earthquake, floods, explosions, actions of the elements, extreme weather
conditions, undue precipitation, other weather conditions, enemy action,
civil commotion, riot or insurrection, dire or other unavoidable occurrence.
39. RULES AND REGULATIONS.
39.1. Tenant and Tenant's servants, employees, agents, visitors
and licensees shall observe faithfully and comply strictly with any reasonable
Rules and Regulations for the Property as Landlord, or Landlord's agents, may
from time to time adopt, provided such rules and regulations are generally
applicable to all tenants of the Building and shall be enforced in a
nondiscriminatory manner. Notice of any such Rules or Regulations shall be
given in such manner as Landlord may elect. Nothing in the Lease contained
shall be construed to impose upon Landlord any duty or obligation to enforce
such Rules and Regulations, or terms, covenants, or conditions, in any other
lease, as against any other tenant, and Landlord shall not be liable to Tenant
for violation of the same by any other tenant, its servants, employees, agents,
visitors, or licensees. In the event any such Rule or Regulation conflicts with
any provision of this Lease, said provision of this Lease shall control. The
current Rules and Regulations in effect with respect to the Property are
attached hereto as Schedule I and made a part hereof.
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40. GOVERNING LAW.
40.1. This Lease shall be construed and enforced in accordance
with the Laws of the State of New Jersey.
41. LANDLORD LIABILITY.
41.1. Tenant agrees to look solely to Landlord's estate and
interest in the Property and the Premises for the satisfaction of any right
or remedy of Tenant for the collection of a judgment (or other judicial
process) requiring the payment of money by Landlord, in the event of any
liability of Landlord, and not other property or assets of Landlord and no
property or assets of any shareholder, director, officer or principal of
Landlord shall be subject to levy, execution, attachment, or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to this Lease, the relationship of Landlord and Tenant hereunder, or
Tenant's use and occupancy of the Premises, or any other liability of
Landlord to Tenant.
42. SIGNAGE.
42.1. Landlord shall provide Tenant with six (6) spaces on the
building directly located on the first floor of the Building and directional
signs for the Premises on the first and second floors of the Building, in
locations determined by Landlord, in its sole discretion.
42.2. Tenant, at its sole cost and expense, shall have the right
to place its logo and name on the monument sign bearing the address of the
Building located on Davidson Avenue, provided that, prior to such installation,
Landlord approves the size, location, color and style of Tenant's name and the
size, color and location of Tenant's logo. The size of Tenant's logo and name
on the monument sign shall be proportional with that of other tenants in the
Building. Tenant shall be fully responsible for maintaining and repairing the
sign and the logo so that they are, at all times, in good repair and Tenant
shall be responsible for any damage to the monument sign or any other property
damage or personal injury resulting from such maintenance or repair. Landlord
hereby agrees that the color of Tenant's logo to be placed on the monument sign
may be red, white and blue.
43. EXPANSION RIGHTS.
(a) Tenant shall have the option to include as part of the
Premises, the remaining portion of the second floor of the Building as
designated on SCHEDULE A attached hereto (such space is referred to herein as
the "EXPANSION SPACE") pursuant to the terms of this Lease.
(b) Any such option shall be exercised by a written notice
(hereinafter called the "EXPANSION NOTICE") from Tenant to Landlord given at any
time prior to the date Landlord delivers to Tenant the Refusal Notice (as
defined in Article 44 hereof) and solely if such Refusal Notice pertains to the
Expansion Space and Tenant rejects, or is deemed to reject, Landlord's offer
pursuant to Article 44, provided, that Tenant shall once again be entitled to
exercise its expansion option for the Expansion Space if Landlord does not
timely enter into a lease for the
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Expansion Space with the Third-Party Tenant (as defined below) in accordance
with Section 44(c) below.
(c) In the event that Tenant shall give Landlord the
Expansion Notice, Tenant shall be deemed to have irrevocably agreed to have
the Expansion Space added to and included in the Premises effective as of the
thirtieth (30th) day after the deliver y of the Expansion Notice (the
"INCLUSION DATE").
(d) In the event that Tenant shall properly exercise its
option in accordance with the provisions hereof, then in such event,
effective as of the Inclusion Date:
(i) The Expansion Space shall be deemed added to
and included in the Premises for the period commencing on the Inclusion Date
and ending on the Expiration Date (as such date may be extended pursuant to
the terms of this Lease). The inclusion of such space shall be on all the
terms and subject to the conditions of this Lease (other than Article 6
hereof) and on such additional terms and conditions as is hereinafter set
forth in this Article 43;
(ii) If Tenant shall timely give Landlord the
Expansion Notice, Landlord shall construct improvements to the Expansion
Space in accordance with plans substantially similar to the Final Plans for
the Premises. Landlord shall pay for the Base Space and Tenant shall pay for
any Special Work applicable thereto. The provisions of Article 6 shall apply
to the work in the Expansion space and Tenant's reimbursement obligations.
If the Expansion Notice is given prior to the one year anniversary of the
Commencement Date, the annual Fixed Rent with respect to the Expansion Space
shall equal the then Fixed Rent set forth in Section 3.1 hereof and shall
thereafter be increased in accordance with the terms of Section 3.1. In the
event Tenant delivers the Expansion Notice at any time after the one year
anniversary of the Commencement Date, the annual Fixed Rent with respect to
the Expansion Space shall be the fair rental value of the Expansion Space
(taking into account Landlord's cost of constructing the improvements to the
Expansion Space) as of the date of the Expansion Notice as agreed upon by
Landlord and Tenant. If the parties are unable to agree upon such fair
rental value within 30 days after the delivery of the Expansion Notice, such
value shall be determined by arbitration, as provided in Section 2.5(c)
hereof. Until such time that the fair rental value is determined by
arbitration, the Fixed Rent for the Expansion Space shall equal the then
Fixed Rent (on a per square foot basis) set forth in Section 3.1. Upon the
determination of the fair rental value by arbitration, the parties shall make
an appropriate payment to one another to accurately reflect any overpayment
or underpayment of the Fixed Rent made by Tenant;
(iii) Effective as of the Inclusion Date, for
purposes of calculating the portion of Tenant's Proportionate Share of
increased Taxes and Cost of Operation and Maintenance allocable to the
Expansion Space: (A) the Base Operating Expense Year and Base Tax year shall
be the Operational Year and the Tax Year for the calendar year immediately
preceding the calendar year in which occurs the Inclusion Date, and (B)
Tenant Proportionate Share attributable to the Expansion Space shall be
deemed to be a fraction, expressed as a percentage, the numerator which shall
be the number of rentable square feet included within the Expansion Space,
and the
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denominator of which shall be 162,206;
(iv) Landlord and Tenant shall execute an amendment
to the Lease setting forth without limitation the exercise of the expansion
option, the inclusion of the Expansion Space in the Premises, the Fixed Rent
and Tenant's Proportionate Share attributable to the Expansion Space and the
Inclusion Date.
(e) Except as otherwise expressly provided in Section
43(d)(ii), Tenant agrees to accept the Expansion Space in its condition and
state of repair existing as of the Inclusion Date and understands and agrees
that Landlord shall not be required to perform any work, supply any materials
or incur any expense to prepare such space for Tenant occupancy.
(f) Tenant's expansion option pursuant to this Article 43
shall expire and be of no further force and effect as of the date Landlord
delivers to Tenant the first Refusal Notice pursuant to Article 44 hereof,
and Tenant rejects, or is deemed to reject, Landlord's offer pursuant to
Article 44, provided, that Tenant shall once again be entitled to exercise
its expansion option for the Expansion Space if Landlord does not timely
enter into a lease for the Expansion Space with the Third-Party Tenant (as
defined below) in accordance with Section 44(c) below.
(g) The termination of this Lease shall also terminate
Tenant's option pursuant to this Article 43 whether or not the same shall
have been exercised. Nothing contained in this article shall prevent
Landlord from exercising any right or action granted to or reserved by
Landlord in this Lease to terminate this Lease. Tenant's option set forth in
this Article 43 may not be severed from this lease or separately sold,
assigned or transferred and is only exercisable by US Servis, Inc. or a
Successor Corporation.
(h) Tenant shall have no right to exercise the expansion
option pursuant to this Article 43 if: (i) the named Tenant or any Successor
Corporation is not in occupancy of at least 75% of the rental square footage
of the Premises as of the Inclusion Date, or (ii) there shall be an Event of
Default by Tenant at the time of exercise of its option or as of the
Inclusion Date.
44. RIGHT OF FIRST REFUSAL.
(a) If, at any time during the Term, a prospective tenant (the
"THIRD-PARTY TENANT"), other than an affiliate of Landlord (provided, however,
an affiliate of Landlord shall be subject to the provisions of this Section 44
with respect to the Expansion Space), submits or agrees to a written proposal
for leasing of any portion of the Building (the "REFUSAL SPACE"), which proposal
Landlord is prepared to accept, then Landlord shall send Tenant a notice
describing the premises, rent, term, Tenant's Proportionate Share, rent
concessions, provisions concerning leasehold improvements, parking arrangements,
and all other material business terms of such proposal (the "REFUSAL NOTICE")
and offering to lease the Refusal Space to Tenant upon the terms set forth in
this Article 44.
(b) Tenant shall have a period of ten (10) days after receipt of
the Refusal
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Notice to give Landlord notice that Tenant either accepts or rejects
Landlord's offer. Time shall be of the essence with respect to Tenant's
notice, and Tenant's failure to give any such notice within the 10-day period
shall be deemed a rejection of Landlord's offer, any principles of law or
equity to the contrary notwithstanding. A Refusal Notice may only be
accepted in whole, not in part.
(c) If Tenant rejects, or is deemed to have rejected,
Landlord's offer, Landlord shall be free to lease the Refusal Space to the
Third-Party Tenant upon any terms and conditions that Landlord may determine
from time to time during the one year period after the rejection or deemed
rejection of the Refusal Notice (except, that, if any portion of the
Expansion Space is part of the Refusal Space, such terms must be the same as
those set forth in the Refusal Notice), with no further obligation to Tenant
under this Section with respect to the Refusal Space. If within one year
after the rejection or deemed rejection of the Refusal Notice, Landlord has
not entered into a lease for the Refusal Space with the Third-Party Tenant on
such terms, Landlord shall again offer the Refusal Space which Landlord
intends to accept. Landlord agrees to give Tenant notice when Landlord
ceases negotiations with such Third-Party Tenant prior to the expiration of
such one year period. Tenant's right to lease any Refusal Space pursuant to
this Article 44 shall apply to any proposals received by Landlord relating to
Refusal Space which currently is or subsequently becomes vacant, provided
such proposal is not pursuant to any renewal rights of any other tenant in
the Building or any expansion rights of any other tenant who is located on
the floor on which the Refusal Space is located.
(d) If Tenant accepts Landlord's offer, such space shall be
deemed added to and included in the Premises for the period commencing on the
thirtieth (30th) days after the date Tenant accepts Landlord's offer (the
"FIRST REFUSAL INCLUSION DATE") and ending on the Expiration Date, as such
date may be extended pursuant to the terms of this Lease. The lease of the
Refusal Space shall be on all the terms and conditions contained herein,
except that (i) the Fixed Rent for the Refusal Space shall be the fair rental
value of the Refusal Space as of the date of the Refusal Notice; (ii) the
Base Operating Expense Year and the Base Tax Year for the Refusal Space shall
be the Operational Year and the Tax Year for the calendar year immediately
preceding the calendar year in which the Refusal Space is incorporated into
this Lease; (iii) Tenant's Proportionate Share shall be increased, upon the
ratio of the rentable square footage of the Refusal Space to the rentable
square footage of the Building; and (iv) the length of the Term for the
Refusal Space shall be the greater of four (4) years or the remaining Term of
this Lease. The Refusal Notice shall contain a statement of Landlord's
determination of the fair rental value of the Refusal Space. If the parties
have not agreed upon the fair rental value of the Refusal Space at the time
Tenant exercises its option to lease same, such value shall be determined by
arbitration as provided in Section 2.5(c) hereof. If the fair rental value
of the Refusal Space has not yet been determined as of the First Refusal
Inclusion Date, then the annual Fixed Rent with respect to the Refusal Space
shall equal the then Fixed Rent (on a square foot basis) set forth in Section
3.1. Upon the determination of the fair rental value of the Refusal Space,
the parties shall make an appropriate payment to one another to accurately
reflect any overpayment or underpayment of the Fixed Rent made by Tenant
prior to such determination. Landlord and Tenant shall execute an amendment
to this Lease setting forth without limitation the acceptance of Landlord's
offer with respect to the Refusal Space, the inclusion of the Refusal Space
in the Premises, the Fixed Rent and Tenant's Proportionate Space in the
Premises, the
50
<PAGE>
Fixed Rent and Tenant's Proportionate Share attributable to the Refusal Space
and the date on which the Refusal Space.
(f) If Tenant declines or is deemed to decline to accept
Landlord's offer under the Refusal Notice, Tenant shall, within ten (10) days
after demand therefor by Landlord, confirm in writing that Tenant declined to
exercise such right.
(g) This Section shall not preclude preliminary discussions,
either oral or written, between Landlord and any prospective tenant
concerning terms and conditions for the leasing of any space in the Building.
(h) Tenant agrees to accept the Refusal Space in its
condition and state of repair existing as of the commencement of the lease of
the Refusal Space and Tenant understands and agrees that Landlord shall not
be required to perform any work, supply any materials or incur any expense to
prepare such space for Tenant occupancy.
(i) The termination of this Lease during the Term shall also
terminate Tenant's option pursuant to this Article 44 whether or not the same
shall have been exercised. Nothing contained in this Article shall prevent
Landlord from exercising any right or action granted to or reserved by
Landlord in this Lease to terminate this Lease. Tenant's options set forth
in this Article 44 may not be severed from this Lease or separately sold,
assigned or transferred.
(j) Except for the Expansion Space, Tenant's rights under
this Section 44 are subject and subordinate to the rights of Huls Service,
Inc. ("HULS") as set forth in that certain Lease dated July 7, 1995 by and
between Landlord and Huls (the "HULS LEASE").
45. RIGHT OF FIRST OFFER.
(a) If, at any time after the first anniversary of the
Commencement Date, any rentable space on the first floor of the Building is
available for lease (the "OFFER SPACE") and Landlord or any of its affiliates
do not desire to occupy such space, Landlord shall so notify Tenant in
writing of the availability of such space. Tenant shall have the right,
exercisable upon written notice given to Landlord within ten (10) days after
receipt of Landlord's notice, to lease an area of the Offer Space mutually
agreed upon by Landlord and Tenant, which in no event shall be less than one
half of the rentable area of the first floor of the Building (unless only a
smaller area is available as a result of other tenants occupying space on
such floor). The lease of the Offer Space shall commence on the 30th day
after Tenant accepts Landlord's Offer (the "FIRST OFFER INCLUSION DATE") and
shall be upon all of the terms and conditions contained herein, except that
(i) the Fixed Rent for the Offer Space shall be the fair rental value of the
Offer Space as of the date of Landlord's notice; (i) the Base Operating
Expense Year and the Base Tax Year for the Offer Space shall be the
Operational Year and the Tax Year for the calendar year immediately preceding
the calendar year in which the Offer Space is incorporated into this Lease;
(iii) Tenant's Proportionate Share shall be increased, upon the ratio of the
rentable square footage of the Offer Space to the rentable square footage of
the Building, and (iv) the length of the Term for the Offer Space shall be
the greater of
51
<PAGE>
five (5) years or the remaining Term of this Lease. Landlord's notice shall
include a statement of Landlord's reasonable estimate of the fair market
value of the Offer Space. If the parties have not agreed upon the fair
rental value of the Offer Space at the time Tenant exercises its option to
lease same, such value shall be determined by arbitration, as provided in
Section 2.5(c) hereof. If the fair rental value of the Offer Space has not
yet been determined as of the First Offer Inclusion Date, then the annual
Fixed Rent with respect to the Offer Space shall equal the then Fixed Rent
(on a square foot basis) set forth in Section 3.1. Upon the determination of
the fair rental value of the Offer Space, the parties shall make an
appropriate payment to one another to accurately reflect any overpayment or
underpayment of the Fixed Rent made by Tenant prior to such determination.
Landlord and Tenant shall execute an amendment to this Lease setting forth
without limitation the acceptance of Landlord's offer with respect to the
Offer Space, the inclusion of the Offer Space in the Premises, the Fixed Rent
and Tenant's Proportionate Share attributable to the Offer Space and the date
on which the Offer Space is added to the Premises.
(b) If Tenant fails to exercise its option to lease the
Offer Space within the 10-day period set forth above, Landlord shall be free
to lease the Offer Space to any party upon any terms and conditions Landlord
shall determine, from time to time during the Term, without any further
obligation to Tenant under this Section. Tenant shall have a one time right
to lease any Offer Space pursuant to this Article 45 and the failure to
exercise such right with respect to any Offer Space shall preclude Tenant
from exercising such right in the future regardless if the particular Offer
Space subsequently becomes available for lease. Subsequent to Tenant's
failure to exercise its option, Tenant shall, within ten days after demand
therefor by Landlord, confirm in writing that Tenant has declined to exercise
such right.
(c) Tenant shall have no right to exercise its option to
lease the Offer Space, and any attempted exercise shall be void and of no
effect, if: (i) the named Tenant or any Successor Corporation is not in
occupancy of at least 75% of the rental square footage of the Premises as of
the First Offer Inclusion Date; or (ii) there shall be an Event of Default by
Tenant at the Time of the proposed commencement of the lease of the Offer
Space.
(d) This Section shall not preclude preliminary
discussions, either oral or written, between Landlord and any prospective
tenant concerning terms and conditions for the leasing of any space in the
Building.
(e) Tenant agrees to accept the Offer Space in its
condition and state of repair existing as of the commencement of the lease of
the Offer Space and Tenant understands and agrees that Landlord shall not be
required to perform any work,supply any materials or incur any expense to
prepare such space for Tenant
occupancy.
(f) The termination of this Lease during the Term shall
also terminate Tenant's option pursuant to this Article 45 whether or not the
same shall have been exercised. Nothing contained in this Article shall
prevent Landlord from exercising any right or action granted to or reserved
by Landlord in this Lease to terminate this Lease. Tenant's option set forth
in this Article 45 may not be severed from this Lease or separately sold,
assigned or transferred
52
<PAGE>
and is only exercisable by US Servis, Inc. or a Successor Corporation.
(g) Tenant's rights under this Section 45 are subject
and subordinate to the rights of Huls as set forth in the Huls Lease.
46. REPRESENTATIONS. Landlord hereby represents and warrants
to Tenant that:
(a) Landlord owns fee simply title to the Property.
(b) Landlord has received no written notice from any
applicable Governmental Authority or insurer of the Property stating that the
Property is not in compliance with applicable laws or insurance regulations
pertaining to the physical condition of the Property.
(c) To the best of its knowledge, the condition of the
Property does not materially violate any building, health, fire, water, use
or similar statute,, ordinance, law, rule, regulations or code, including the
ADA.
47. AIR CONDITIONING CONDENSER.
(a) Subject to the provisions of this Article 47,
Landlord hereby agrees that, during the term of this Lease, Tenant may
install, maintain and operate an air conditioning condenser (the "CONDENSER")
on the roof of the Building for the purpose of transmitting condenser water
to supplemental air conditioning units located in the Premises.
(b) If Tenant desires to install the Condenser on the
roof of the Building, Tenant shall submit to Landlord for its approval (which
approval shall not be unreasonably withheld or delayed) detailed plans and
specifications showing the proposed location of the Condenser on the roof,
the modifications to the roof to support and install the Condenser, the size
and shape of the Condenser and any other information relevant to said
installation.
(c) Tenant shall obtain, and shall deliver to Landlord,
all permits, consents and approvals required in connection with the
installation, operation and use of the Condenser before Tenant commences the
installation. As long as the Condenser is on the roof of the Building,
Tenant covenants to maintain all such permits, consents and approvals in full
force and effect.
(d) Tenant agrees to use Landlord's roofing contractor
with respect to any work affecting or penetrating the roof of the Building
and to otherwise comply with the provisions of Article 7. Tenant agrees
further to comply with all the terms and conditions of any roof guaranty or
warranty in connection with the service, maintenance, repair and/or
replacement of the Condenser.
(e) Tenant shall maintain the Condenser and other
related
53
<PAGE>
installations in good condition during the Term. Upon the expiration of the
Term, Tenant shall remove the same, repair all damage to the roof and/or the
Building caused by said removal and restore the roof to the condition
existing prior to such installation, reasonable wear and tear excepted.
(f) Tenant agrees to indemnify and save Landlord
harmless from and against all claims, actions, damages, costs, expenses and
liabilities, including reasonable attorneys' fees and disbursements, to the
extent arising out of or in connection with the installation, maintenance,
repair, replacement, operation and/or use of the Condenser.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals as of the date first written above.
THE MUTUAL LIFE INSURANCE COMPANY OF
NEW YORK
By:
----------------------------------------
Name:
Title:
US SERVIS, INC.
By:
----------------------------------------
Name:
Title:
54
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> MAR-31-1998
<PERIOD-END> MAR-31-1998
<CASH> 5,234,000
<SECURITIES> 0
<RECEIVABLES> 6,675,000
<ALLOWANCES> 690,000
<INVENTORY> 0
<CURRENT-ASSETS> 13,883,000
<PP&E> 2,462,000
<DEPRECIATION> 698,000
<TOTAL-ASSETS> 19,864,000
<CURRENT-LIABILITIES> 3,378,000
<BONDS> 0
0
25,000
<COMMON> 64,000
<OTHER-SE> 16,201,000
<TOTAL-LIABILITY-AND-EQUITY> 19,864,000
<SALES> 0
<TOTAL-REVENUES> 27,607,000
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 26,715,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 99,000
<INCOME-PRETAX> 793,000
<INCOME-TAX> 65,000
<INCOME-CONTINUING> 728,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 728,000
<EPS-PRIMARY> (.03)
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