<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM 10-Q
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _________________ to _______________
Commission File Number 0-17920
BRITE VOICE SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
KANSAS 48-0986248
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
7309 E. 21ST STREET NORTH
WICHITA, KANSAS 67206
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (316) 652-6500
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 [ ]
As of May 8, 1997, 11,830,095 shares of the registrant's common stock were
outstanding.
TOTAL NUMBER OF PAGES: 14
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BRITE VOICE SYSTEMS, INC.
INDEX
Page
Number
------
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Balance Sheets - March 31, 1997
and December 31, 1996................................... 3
Consolidated Statements of Income - Three Months
Ended March 31, 1997 and 1996.......................... 5
Consolidated Statements of Cash Flows - Three Months
Ended March 31, 1997 and 1996.......................... 6
Notes to Financial Statements............................ 7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations.................... 8
PART II. OTHER INFORMATION........................................ 13
SIGNATURES............................................................. 14
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
BRITE VOICE SYSTEMS, INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
ASSETS
March 31, December 31,
1997 1996
----------- -----------
(Unaudited)
CURRENT ASSETS
Cash and cash equivalents...................... $ 6,426 $ 8,084
Accounts receivable, less allowance for
doubtful accounts: $490 - 1997; $471 - 1996.. 38,335 35,067
Inventories.................................... 14,564 12,507
Prepaid expenses and other..................... 2,093 2,601
----------- -----------
Total Current Assets........................ 61,418 58,259
----------- -----------
PROPERTY AND EQUIPMENT
Land and building.............................. 3,074 3,074
Furniture and equipment........................ 24,703 23,430
----------- -----------
27,777 26,504
----------- -----------
Less accumulated depreciation.................. (13,140) (12,204)
----------- -----------
Total Property and Equipment................ 14,637 14,300
----------- -----------
OTHER ASSETS...................................... 3,178 2,323
----------- -----------
TOTAL ASSETS................................ $ 79,233 $ 74,882
----------- -----------
----------- -----------
See Notes to Financial Statements
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BRITE VOICE SYSTEMS, INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
LIABILITIES AND STOCKHOLDERS' EQUITY
March 31, December 31,
1997 1996
----------- -----------
(Unaudited)
CURRENT LIABILITIES
Accounts payable............................... $14,282 $10,539
Accrued salaries and wages..................... 2,430 1,974
Other accrued expenses......................... 1,032 1,512
Deferred revenue............................... 2,498 2,063
Customer deposits.............................. 2,960 3,526
Income taxes payable........................... 1,589 1,087
----------- -----------
Total Current Liabilities................... 24,791 20,701
----------- -----------
COMMITMENTS AND CONTINGENCIES..................... -- --
STOCKHOLDERS' EQUITY
Preferred stock, no par value; authorized
10,000,000 shares; none issued and
outstanding................................. -- --
Common stock, no par value; authorized
30,000,000 shares; issued 11,830,095
shares - 1997; 11,829,595 shares - 1996..... 38,419 38,417
Retained earnings.............................. 16,245 14,938
Foreign currency translation adjustment........ (222) 826
----------- -----------
Total Stockholders' Equity.................. 54,442 54,181
----------- -----------
TOTAL LIABILITIES AND
STOCKHOLDERS' EQUITY..................... $79,233 $74,882
----------- -----------
----------- -----------
See Notes to Financial Statements
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BRITE VOICE SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE DATA)
Three Months Ended
March 31,
1997 1996
------- -------
(Unaudited)
REVENUES
Systems.............................................. $19,106 $14,116
Services............................................. 11,884 11,732
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30,990 25,848
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COSTS AND EXPENSES
Cost of Sales:
Systems........................................... 8,693 6,010
Services.......................................... 6,833 5,621
Research and engineering............................. 3,075 2,586
Selling, general and administrative.................. 10,384 7,927
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28,985 22,144
------- -------
INCOME FROM OPERATIONS.................................. 2,005 3,704
OTHER INCOME, NET....................................... 76 57
------- -------
INCOME BEFORE TAXES..................................... 2,081 3,761
INCOME TAX PROVISION.................................... 790 1,058
------- -------
NET INCOME.............................................. $ 1,291 $ 2,703
------- -------
------- -------
EARNINGS PER SHARE...................................... $ 0.11 $ 0.23
------- -------
------- -------
WEIGHTED AVERAGE SHARES OUTSTANDING..................... 12,143 11,921
See Notes to Financial Statements
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BRITE VOICE SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
Three Months Ended
March 31,
1997 1996
------- -------
(Unaudited)
CASH FLOWS FROM OPERATING ACTIVITIES
Net income........................................... $ 1,291 $ 2,703
Items not requiring (providing) cash:
Depreciation and amortization..................... 1,154 838
Gain on disposition of assets..................... (15) --
Changes in:
Accounts receivable............................... (3,735) 2,460
Inventories....................................... (2,356) (1,071)
Accounts payable and accrued expenses............. 3,847 (1,018)
Other current assets and liabilities.............. 975 (1,949)
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Net cash provided by operating activities...... 1,161 1,963
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CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of property and equipment, net.............. (1,547) (1,491)
Purchase of temporary investments.................... -- (1,987)
Increase in other assets............................. (982) (89)
Proceeds from sale of property....................... 16 --
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Net cash used in investing activities.......... (2,513) (3,567)
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CASH FLOWS FROM FINANCING ACTIVITIES
Issuance of common stock............................. 2 2,832
Principal payment on debts........................... -- (621)
------- -------
Net cash provided by financing activities...... 2 2,211
------- -------
EFFECT OF EXCHANGE RATE CHANGES ON CASH................. (308) (173)
------- -------
INCREASE (DECREASE) IN CASH AND
CASH EQUIVALENTS..................................... (1,658) 434
CASH AND CASH EQUIVALENTS,
BEGINNING OF PERIOD.................................. 8,084 3,405
------- -------
CASH AND CASH EQUIVALENTS, END OF PERIOD................ $ 6,426 $ 3,839
------- -------
------- -------
See Notes to Financial Statements
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BRITE VOICE SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. The 1997 and 1996 financial statements (except for the December 31, 1996
Balance Sheet) included herein have been prepared by the Company, without audit,
and reflect all adjustments (consisting only of those of a normal recurring
nature) which are, in the opinion of management, necessary to fairly present the
financial position, results of operations and cash flows for the interim
periods. Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted, although the Company believes that
the disclosures are adequate to make the information presented not misleading.
It is suggested that these condensed financial statements be read in conjunction
with the financial statements and the notes thereto for the year ended December
31, 1996, contained in the Company's Annual Report to Stockholders and Form 10-K
filed with the Securities and Exchange Commission.
2. Inventories consist of the following (in thousands):
March 31, December 31,
1997 1996
--------- ------------
Purchased parts......................... $ 6,185 $ 4,060
Work in progress........................ 5,981 5,581
Finished goods.......................... 2,398 2,866
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$14,564 $12,507
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--------- ------------
3. On March 4, 1996, the Company completed a public stock offering whereby
1,377,401 shares were sold by certain stockholders. The Company granted the
Underwriter an option to purchase up to 206,610 shares, solely to cover
over-allotments. The underwriter's option was exercised, resulting in
proceeds to the Company of $2,761,176, net of expenses.
4. Income taxes paid, net of refunds received, during the three months ended
March 31, 1997 and 1996 were $157,000 and $1,214,000, respectively.
Interest paid during the three months ended March 31, 1997 and 1996 was
$4,000 and $10,000, respectively.
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PART I: FINANCIAL INFORMATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
FORWARD-LOOKING STATEMENTS
From time to time, information provided by the Company, statements made by
its employees or information included in its filings with the Securities and
Exchange Commission, including this Form 10-Q Report, may contain certain
"forward-looking" information, as that term is defined by the Private Securities
Litigation Reform Act of 1995 (the "Act"). The words "expects," "anticipates,"
"believes" and similar words generally signify a "forward-looking" statement.
These forward-looking statements are made pursuant to the safe harbor provisions
of the Act. The reader is cautioned that all forward-looking statements are
necessarily speculative and that there are certain risks and uncertainties that
could cause actual events or results to differ materially from those referred to
in such forward-looking statements. Such risks and uncertainties include those
inherent generally in the voice processing and telecommunications consulting
industries, such as product demand, pricing, market acceptance, reliance on
significant customers, intellectual property rights, risks in product and
technology developments, and other risk factors detailed in the section entitled
"Certain Trends and Uncertainties" contained in the Company's Form 10-K Report
and in the Company's other Securities and Exchange Commission filings. The
Company undertakes no obligation to publicly revise any forward-looking
statement due to changes in circumstances after the date of this report, or to
reflect the occurrence of unanticipated events.
RESULTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 1997 COMPARED TO THREE MONTHS ENDED MARCH 31, 1996
The Company derives revenue from the sale of voice processing systems to
domestic and international customers and the provision of services related to
the operation of these systems. The Company's systems can be divided into two
categories: those that increase its customers' revenues through increased
subscription or user fees ("Network Systems"), and those that reduce customers'
costs or improve the efficiency of services provided to end user customers
("Business Systems").
Total revenues increased $5,142,000, or 19.9%, for the three months ended
March 31, 1997 compared to the three months ended March 31, 1996. The increase
was due primarily to increased equipment sales to new and existing customers,
increases in managed services and service contract and repair revenue, offset by
a decrease in telecommunications management services revenues.
Systems revenues increased $4,990,000, or 35.3%, for the three months ended
March 31, 1997 compared to the prior year, as shown in the following table:
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SYSTEMS REVENUES
Three Months Ended March 31,
----------------------------
1997 1996 % Increase
----------- ----------- ----------
Business Systems................ $ 5,156,000 $ 4,573,000 12.7%
Network Systems................. 13,950,000 9,543,000 46.2%
----------- ----------- ----------
Total........................... $19,106,000 $14,116,000 35.3%
----------- ----------- ----------
----------- ----------- ----------
Business Systems revenue consists principally of sales of interactive voice
response ("IVR"), audiotex or electronic publishing, and small voice messaging
systems for use in conjunction with a corporation's PBX. The increase of
$583,000, or 12.7%, was primarily due to a larger number of systems shipped
outside of the United States during the first quarter of 1997 compared to the
first quarter of 1996. The Company has significantly increased its sales force
for the purpose of marketing its IVR systems to European customers. Sales of
electronic publishing systems in the United States remain slow, as many of the
Company's customers have shifted their emphasis from audiotex systems to other
on-line systems and services. The Company believes that sales of electronic
publishing systems in the future will become increasingly more difficult to
obtain in the domestic market.
Network Systems revenue consists principally of sales of voice messaging,
voice activated dialing and prepaid calling systems. The $4,407,000, or 46.2%,
increase was primarily due to system sales to new customers in Europe and the
Pacific Rim, and system expansion by existing customers in Europe and the United
States. The Company believes that international markets are behind the United
States in terms of market penetration of voice processing systems and that
significant growth potential exists within these markets.
The Company's systems sales are dependent upon continued orders by existing
customers, orders from new customers and development of new products. There can
be no assurance that the Company will be able to increase or maintain its market
share in the future or to sustain recent growth rates.
Services revenues increased $152,000, or 1.3%, for the three months ended
March 31, 1997, principally due to increased maintenance revenues offset by a
decline in telecommunications management services revenues. In addition, the
Company sold its 900 Voice Personals product line in July 1996. With Voice
Personals revenues excluded from the 1996 results, services revenues would have
increased $1,399,000, or 13.3%, for the first quarter. The breakdown of services
revenues is shown in the following table:
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SERVICES REVENUES
Three Months Ended March 31,
---------------------------- % Increase/
1997 1996 (Decrease)
------------ ----------- ----------
Managed services............... $ 3,272,000 $ 2,891,000 13.2%
Service contract and repair.... 3,761,000 2,937,000 28.1%
Information services........... 1,491,000 1,355,000 10.0%
Telecommunications
management services........... 3,360,000 4,549,000 (26.1%)
------------ ----------- ----------
Total.......................... $11,884,000 $11,732,000 1.3%
------------ ----------- ----------
------------ ----------- ----------
Managed services revenues increased $381,000, or 13.2%, primarily due to an
increase in system rentals and the commencement of advertising sales on behalf
of Yellow Pages customers. Excluding Voice Personals revenues, managed services
revenues increased $1,628,000, or 99.0%.
Service contract and repair revenues increased $824,000, or 28.1%, due
primarily to the Company's continuing emphasis on expanding its base of
customers who subscribe to quarterly or annual maintenance contracts.
Information services revenue increased $136,000, or 10.0%, due primarily to the
introduction of new audio products. The Company believes that due to the lower
level of electronic publishing system sales being made, continued expansion of
information services revenue will be dependent upon developing additional new
audio products and applications.
Telecommunications management services revenues decreased $1,189,000, or
26.1%. This decrease is due to the absence of large billing verification
refunds received during the quarter, offset by increases in the Company's
software services products and operations management revenues. The Company
continues to pursue large billing verification contracts, but is unable to
predict the success of its efforts in this area.
Cost of systems sales increased $4,990,000, or 35.3%. As a percentage of
systems sales, actual costs increased to 45.5% from 42.6% in 1996. Actual costs
increased due primarily to an increase in the number of systems shipped to
international customers. The increase as a percentage of revenues is due to an
increase in pass-through sales and a decline in software content, and the fact
that gross margins on international sales have historically been lower than on
domestic sales.
Cost of services revenue increased $1,212,000, or 21.6%, for the three
months ended March 31, 1997. As a percentage of services revenues, actual costs
increased to 57.5% in 1997, compared to 47.9% in 1996. The increase in actual
costs was due primarily to an expansion of the infrastructure of the
telecommunications management services departments. The decline in margins was
due principally to a shift in the revenue mix from predominantly billing
verification revenues to lower margin software services and operations
management revenue. The Company expects this trend toward lower high-margin
billing verification revenues to continue for the foreseeable future.
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Research and engineering expenses increased $489,000, or 18.9%, for the
three months ended March 31, 1997. The increase in actual expenditures was due
to an increase in staff dedicated to designing new products and enhancing
existing products. As a percentage of revenue, these expenses decreased slightly
to 9.9% of total revenues in the first quarter of 1997, compared to 10.0% in
1996. The Company believes that it must continue to increase spending on
research and engineering activities in absolute terms in order to remain
competitive in the voice response market. Such expenses could increase as a
percentage of revenues as well.
Selling, general and administrative expenses increased $2,456,000, or
31.0%, for the three months ended March 31, 1997. The increase in actual
expenditures was primarily due to an increase in the Company's international
sales staff. As a percentage of revenues, these expenses increased to 33.5% in
1997, compared to 30.7% in 1996. The Company continues to expand its
international and domestic sales and marketing efforts. The Company anticipates
that these expenses as a percentage of revenues will begin to decline as the
additional staff begins generating revenues.
The effective income tax rate for the three months ended March 31, 1997 is
38.0%, compared to 28.1% in 1996. The variance from the United States statutory
rate in 1997 is due primarily to foreign taxes and state income taxes. The
variance in 1996 was due primarily to the utilization of net operating losses,
credit carryforwards acquired through the Company's 1993 merger with Perception
Technology Corporation, and a reduction in the Company's deferred tax valuation
allowance.
LIQUIDITY AND CAPITAL RESOURCES
As of March 31, 1997, the Company had a current ratio of 2.5 to 1, and
working capital of $36,627,000, compared to a current ratio of 2.8 to 1 and
working capital of $37,558,000 at December 31, 1996.
Cash flows from operating activities provided net cash of $1,161,000 for
the three months ended March 31, 1997. Cash derived from net income, items not
requiring cash outlay, and an increase in accounts payable were offset by
increases in accounts receivable and inventory. Accounts receivable at March
31, 1997 increased by $3,268,000 compared to December 31, 1996, principally due
to international sales, which typically have longer payment and collection
cycles. Inventory increased by $2,057,000, primarily due to the longer lead
time associated with international orders. The Company believes the increase in
each of these areas to be in line with the business growth experienced in
systems sales during the first quarter of 1997, and the backlog of orders at
the end of the quarter.
The Company regularly invests excess funds in short-term securities, such
as bankers' acceptances, government obligations and variable rate demand notes,
having maturities up to one year. Management believes that restricting
investments to these types of securities maximizes financial flexibility and
minimizes exposure to interest rate and market risks. The Company utilizes
these investments as a source of liquidity, to the extent that cash requirements
exceed short-term cash receipts.
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The Company maintains a $5,000,000 line of credit that is used from time to
time to fund short-term cash requirements. There were no borrowings outstanding
under the line as of March 31, 1997.
On April 22, 1997, the Company announced plans to reorganize its
operations and relocate its corporate headquarters to the Orlando, Florida
area. The Company anticipates that this decision will result in a
non-recurring charge in either the second or third quarter of the current
year, consisting of both cash and non-cash expenses. Because the final
details of the plans related to the reorganization are not complete, the
amount of the charge has not been determined.
The Company believes that the additional expenses anticipated as a result
of the reorganization and relocation can be funded through the use of the
Company's line of credit and utilization of both operating and capital leases.
The Company believes that this borrowing capacity and cash generated through
operations will be sufficient to fund all of the Company's known capital
requirements for at least the next twelve months.
INFLATION
Inflation has not had a material impact on the Company's results of
operations. Because of the competitive nature of the computer industry, the
costs of parts used in the Company's products have remained relatively stable.
However, should inflation rise to higher levels, the Company believes that such
inflationary costs would be passed on to customers by both the Company and its
competition.
ACCOUNTING PRONOUNCEMENT
The Financial Accounting Standards Board issued FASB Statement 128,
"Earnings Per Share" in February 1997. FASB 128 modifies the way companies
report earnings per share information. The Company will be required to adopt
FASB 128 for the year ending December 31, 1997. All prior period earnings per
share data will be restated to conform with the statement. The Company does not
believe that adoption of FASB 128 will materially affect earnings per share data
previously reported.
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PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None
ITEM 2. CHANGES IN SECURITIES
None
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
ITEM 5. OTHER MATTERS
None
ITEM 6. EXHIBITS REQUIRED BY ITEM 601 OF REGULATION S-K
(a) Exhibits.
Exhibit 10 - Office Lease Agreement between the Company and
Heathrow Office Building Corporation, dated April 16, 1997, pertaining to the
Company's headquarters facility in Lake Mary, Florida.
Exhibit 27 - Financial Data Schedule
(b) No reports on Form 8-K were filed during the quarter for which
this report is filed.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: May 13, 1997
BRITE VOICE SYSTEMS, INC.
/s/ Glenn A. Etherington
---------------------------------------
Glenn A. Etherington
Chief Financial Officer
Duly Authorized Officer on behalf of the
Registrant
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OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT ("Lease") is made this 16th day of April, 1997,
by and between HEATHROW OFFICE BUILDING CORPORATION, a corporation formed and
existing under the laws of the State of Florida (the "Landlord") and BRITE VOICE
SYSTEMS, INC., a corporation formed and existing under the laws of the State of
Kansas (the "Tenant").
WITNESSETH, that for good and valuable consideration, the Landlord hereby
leases to the Tenant, and the Tenant hereby leases from the Landlord, certain
space containing an agreed-upon amount of 23,401 rentable square feet of floor
area on the third floor calculated in accordance with BOMA standards based on
22,719 useable square feet of floor area and a 1.03 conversion factor (the
"Third Floor Space") and an agreed upon amount of 2,969 rentable square feet of
floor area on the first floor calculated in accordance with BOMA standards based
on 2,627 useable square feet of floor area and a 1.13 conversion factor (the
"First Floor Space") (the Third Floor Space and the First Floor Space are
hereinafter collectively referred to as the "Premises") of an office building
(the "Building"), as more particularly shown on the floor plan attached hereto
as Exhibit A, which Building together with other real property and improvements
is located at 250 International Parkway in Lake Mary, Florida (collectively the
"Property"), all upon the following terms and conditions:
ARTICLE I - TERM
Section 1.01 LENGTH. This Lease shall be for a term (the "Term") which
begins on that date (the "Commencement Date") which is the earlier of (i) June
1, 1997 (the "Target Date"), (ii) the first date on which the initial
improvements to the Premises described in Section 5.01 below are substantially
complete (i.e., sufficient for the Tenant to occupy such Premises and undertake
business therein), or (iii) the date on which Tenant actually moves into
occupancy of the Premises and conducts business therein; provided Tenant may
occupy the First Floor Space prior to the completion of the initial improvements
to the Third Floor Space (the "Early Occupancy Period") under the terms
conditions of this Lease, and Tenant shall pay annualized Base Rent of $17 per
square foot for the First Floor Space prorated for the Early Occupancy Period.
In addition, Landlord shall provide Tenant with 2,415 rentable square feet (the
"Temporary Space") on the first floor of the Building in "as is" condition from
the date of this Lease through June 15, 1997, under the terms and conditions
hereof, except Tenant shall have no obligation to pay Rent for the Temporary
Space. The Term shall expire on that date which is five years after such
Commencement Date (the "Expiration Date"). In the event that the Tenant enters
into occupancy of the Premises prior to the Commencement Date for the purpose of
constructing improvements or installing fixtures therein (and without conducting
business therein), then all terms of this Lease except that regarding the
payment of rent and other charges shall apply to such occupancy.
Section 1.02 CONFIRMATION. Landlord shall, within 30 days after the
commencement of the Term, confirm to Tenant in writing the actual dates of the
Commencement Date and the Expiration Date.
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Section 1.03 SURRENDER. The Tenant shall at the expiration of the Term
or any earlier termination of this Lease (a) promptly surrender to the Landlord
possession of the Premises, including any fixtures or other improvements which
under the provisions of this Lease are property of the Landlord, all in good
order and repair (ordinary wear, tear and any damage resulting from a casualty
loss excepted) and broom clean, (b) remove therefrom the Tenant's signs, goods
and effects and any machinery, trade fixtures and equipment used in conducting
the Tenant's trade or business and not owned by the Landlord, (c) repair any
damage to the Premises or the Building caused by such removal, and (d) Tenant
shall remove any other personal property which Landlord requests be removed.
Any property not removed by Tenant shall be deemed as abandoned and may be sold,
destroyed or otherwise despised of by Landlord without notice or liability to
Tenant or any other third party. Tenant will pay all costs of disposition of
such property which obligation shall survive the termination of Lease.
Section 1.04 HOLDING OVER. If the Tenant continues to occupy the
Premises beyond the Expiration Date or any earlier termination of this Lease,
such occupancy shall be subject to all of the same terms and conditions as are
contained in this Lease, except that the rental payable during the period of
such occupancy shall be equal to 1.5 times the amount of all Rent which was last
in effect during the Term. Nothing in the foregoing shall be deemed in any way
to limit or impair the Landlord's right to immediately evict the Tenant or
exercise its other rights and remedies under the provisions of this Lease or
applicable law, including the collection of consequential and other damages, on
account of the Tenant's occupancy of the Premises without having obtained
Landlord's prior consent.
Section 1.05 OPTION TO RENEW.
(A) RENEWAL PERIOD. So long as Tenant is not in default under the
terms of this Lease either at the time of exercise or at the time the Renewal
Period (as defined below) commences, the Tenant shall have the right to renew
(the "Renewal Option") the Term for an additional five year period commencing on
the fifth anniversary of the Commencement Date and expiring five years therefrom
(the "Renewal Period"). Tenant shall exercise the Renewal Option by giving
written notice (the "Renewal Notice") to Landlord not earlier than two hundred
seventy (270) days prior to the Expiration Date and not later than two hundred
forty (240) days prior to the Expiration Date (the "Notice Date"). In the event
Landlord has not received the Renewal Notice by the Notice Date, the Renewal
Option shall expire, and this Lease shall terminate in all respects on the
Expiration Date, except for provisions which specifically survive the
termination of this Lease. In the event Landlord receives the Renewal Notice on
or before the Notice Date, the Term shall be extended for the Renewal Period on
the same terms, covenants, and conditions of this Lease, except that the monthly
Base Rent during the Renewal Period will be determined pursuant to subparagraph
(B) below.
(B) RENEWAL PERIOD BASE RENT. Base Rent for the Renewal Period shall
be ninety-five percent (95%) of the then-fair market rental value for comparable
office space in the Heathrow, Florida area, determined as follows:
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(i) Landlord and Tenant will have fifteen (15) days after
Landlord receives the Renewal Notice within which to agree on the then-fair
market rental value of the Premises as set forth above, and rental increases to
the monthly rent for the Renewal Period. If they agree on the Base Rent and
rental increases for the Renewal Period within fifteen (15) days, they will
amend this Lease by stating the initial Base Rent and rental increases for the
Renewal Period.
(ii) If they are unable to agree on the initial Base Rent and
rental increases for Renewal Period the within fifteen (15) days, then, the
initial Base Rent for the Renewal Period will be the then-fair market rental
value of the Premises as determined in accordance with paragraph (B)(iv) and the
periodic rental increases will be consistent with current market standards for
rent increases at that time, in amounts and at frequencies determined by the
appraisers pursuant to paragraph (B)(iv).
(iii) The "then-fair market rental value of the Premises"
means what a landlord under no compulsion to lease the Premises and a tenant
under no compulsion to lease the Premises would determine as rents (including
initial Base Rent and rental increases) for the Renewal Period, as of the
commencement of the Renewal Period, taking into consideration the uses permitted
under this Lease, the quality, size, design, and location of the Premises, and
the rent for comparable buildings located in the vicinity of Heathrow, Florida.
The then-fair market rental value of the Premises and the rental increases in
the monthly rent for the Renewal Period will not be less than that provided
during the initial Term.
(iv) Within seven (7) days after the expiration of the fifteen
(15) day period set forth in paragraph (b)(ii), Landlord and Tenant will each
appoint a real estate appraiser with at least five (5) years full-time
commercial appraisal experience in the area in which the Premises are located to
appraise the then-fair market rental value of the Premises. If either Landlord
or Tenant does not appoint an appraiser within ten (10) days after the other has
given notice of the name of its appraiser, the single appraiser appointed will
be the sole appraiser and will set the then-fair market rental value of the
Premises. If two appraisers are appointed pursuant to this Section, they will
meet promptly and attempt to set the then-fair market rental value of the
Premises. If they are unable to agree within thirty (30) days after the second
appraiser has been appointed, they will attempt to elect a third appraiser
meeting the qualifications stated in this Section within ten (10) days after the
last day the two appraisals are given to set the then fair market rental value
of the Premises. If they are unable to agree on the third appraiser, either
Landlord or Tenant, by given ten (10) days prior notice to the other, can apply
to the then presiding judge of the County Court for the location of the Premises
for the selection of a third appraiser who meets the qualifications stated in
this Section. Landlord and Tenant will bear one-half (1/2) of the cost of
appointing the third appraiser and of paying the third appraiser's fee. The
third appraiser, however selected, must be a person who has not previously acted
in any capacity for either Landlord or Tenant.
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Within thirty (30) days after the selection of the third appraiser, a
majority of the appraisers will set the then-fair market rental value of the
Premises. If a majority of the appraisers are unable to set the then-fair
market rental value of the Premises within thirty (30) days after selection of
the third appraiser, the three appraisals will be averaged and the average will
be the then-fair market rental value of the Premises.
ARTICLE II - RENT
Section 2.01 BASE RENT. Tenant shall pay a minimum annual rental in each
one-year period during the Term hereof which shall be referred to hereinafter as
"Base Rent", without reduction, abatement or setoff. Base Rent shall be
calculated and increased for each such year as follows:
(1) Base Rent for the first one-year period in the Lease Term shall
be the sum of $448,290.00, payable in equal monthly installments of $37,357.50
each.
(2) Base Rent for the second one-year period in the Lease Term shall
be the sum of $461,475.00, payable in equal monthly installments of $38,456.25.
(3) Base Rent for the third one-year period in the Lease Term shall
be the sum of $474,660.00, payable in equal monthly installments of $39,555.00
each.
(4) Base Rent for the fourth one-year period in the Lease Term shall
be the sum of $487,845.00, payable in equal monthly installments of $40,653.75
each.
(5) Base Rent for the fifth one-year period in the Lease Term shall
be the sum of $501,030.00, payable in equal monthly installments of $41,752.50
each.
Section 2.02 REAL ESTATE TAXES. Commencing after the end of the
tax/fiscal year in which the Commencement Date falls, Tenant shall pay to
Landlord in each year of the Term a proportionate share (the "Proportionate
Share") of the amount, if any, by which the Real Estate Taxes (defined below)
applicable to the Property in each such year exceeds the Base Real Estate Taxes
(defined below). For these purposes, the percentage used in determining the
Tenant's Proportionate Share shall be 37.34%, which is the percentage reached by
dividing the number of rentable square feet of the Premises set forth on page 1
hereof by 70,613.00, which is the total number of rentable square feet in the
Building. The term "Real Estate Taxes" shall be construed to mean any and all
real property taxes, assessments, sewer rates, ad valorem charges, rents and
charges, front foot benefit charges, all other governmental impositions in the
nature of any of the foregoing, and all reasonable costs and expenses (including
attorneys' fees and costs of court or other proceedings) incurred in contesting
property tax assessments or any other such governmental impositions. The "Base
Real Estate Taxes" shall be the Real Estate Taxes imposed in connection with the
Building and the Property and applicable during the tax/fiscal year in which the
Term of this Lease commences. Tenant shall not be entitled to any credit or
rebate in the event Real Estate Taxes
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during any one year in the Term are lower than the Base Real Estate Taxes.
In the event that the Real Estate Taxes during any one subsequent year in the
Term are lower than the Base Real Estate Taxes, due to Landlord's successful
contesting of tax assessments or otherwise, then the amount of Real Estate
Taxes in such year shall be the Base Real Estate Taxes for all following
years in the Term. Tenant shall pay all personal property taxes with respect
to the personal property located on the Premises.
Section 2.03 OPERATING EXPENSES. Commencing after the calendar year in
which the Commencement Date falls, Tenant shall pay to Landlord in each year of
the Term a Proportionate Share of the amount by which the Operating Expenses
(defined below) for each such year exceed the Base Operating Expenses (defined
below). For these purposes, the percentage used in determining the Tenant's
Proportionate Share shall be 37.34%, which is the percentage reached by dividing
the number of rentable square feet of the Premises set forth on page 1 hereof by
the total number of rentable square feet in the Building. "Operating Expenses"
shall mean all expenses, costs and disbursements of every kind and nature
incurred in connection with the management, maintenance, repair and operation
of the Building and Property, including but not limited to the following: (1)
cost of wages and salaries of all employees engaged in the operation and
maintenance of the Building and surrounding grounds and common areas, including
but not limited to payroll taxes, insurance and benefits; (2) cost of all
supplies and materials used in the operation, maintenance and repair of the
Building and all other portions of the Property; (3) cost of all utilities
(including surcharges) including but not limited to water, sewer, electricity
and gas for both the rentable space and the common areas of the Building; (4)
costs incurred under all maintenance and service agreements for the Building,
including but not limited to access control, energy management services, window
cleaning, elevator maintenance, janitorial service and landscaping; (5) cost of
insurance relating to all of such property, including but not limited to the
cost of casualty and liability insurance; (6) cost of repairs and general
maintenance to the Building; (7) all property management fees and expenses or,
in lieu thereof (at the discretion of Landlord), an administrative charge of 15%
of all other Operating Expenses; (8) cost of audit and accounting services; (9)
the costs of any improvements required or made necessary by law or changes in
law; (10) cost of any capital improvements made to the Building that, in
Landlord's reasonable judgment, will reduce other operating expenses or increase
energy efficiency, provided such costs are amortized in accordance with
generally accepted accounting principles ("GAAP") at such rates as may have been
paid by Landlord on funds borrowed for the purpose of constructing such capital
improvements or, if no such funds were borrowed, at such reasonable rates as are
not in conflict with GAAP, provided the amortized cost for any year shall not
exceed the savings resulting from such improvements in such year; and (11) cost
of any licenses or permits required by any public authority. For purposes of
this provision, Operating Expenses shall not include (a) the cost of capital
improvements (except as expressly provided above), (b) the costs of tenant
improvements within tenant spaces, (c) ground rent or debt service, or (d)
depreciation. The "Base Operating Expenses" shall be the Operating Expenses
applicable during the calendar year in which the Term of this Lease commences.
Tenant shall not be entitled to any credit or rebate in the event Operating
Expenses in any one year during the Term are lower than the Base Operating
Expenses. Notwithstanding the foregoing, Landlord agrees to limit Operating
Expenses which are within its reasonable control so that such Operating Expenses
do not increase
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more than five percent (5%) each year cumulatively over the Term. Operating
Expenses which may be controlled by Landlord include those referenced in
subparagraphs (1) and (7) above, and specifically exclude subparagraphs (3)
and (5) above.
Section 2.04 WHEN DUE AND PAYABLE.
(A) All rental obligations set forth in the foregoing provisions and
elsewhere in this Lease, except for Base Rent, shall be referred to hereinafter
as "Additional Rent." All Base Rent and Additional Rent are sometimes
hereinafter together referred to as "Rent."
(B) The Base Rent for each year (or part thereof) during the Term,
plus any applicable sales tax thereon, shall be due and payable in 12
consecutive, equal monthly installments, in advance, on the first day of each
calendar month during the Term, provided that the installment of Rent for the
first full calendar month of the Term shall be due upon execution of this Lease.
(C) Tenant shall pay all Additional Rent, plus any applicable sales
tax thereon, within 30 days after being billed therefor by Landlord. However,
Landlord may, at its discretion, (a) make from time to time during the Term a
reasonable estimate of the Additional Rent which may become due for any year,
(b) require the Tenant to pay to the Landlord such Additional Rent in equal
installments at the time and in the manner that the Tenant is required hereunder
to pay monthly installments of Base Rent, and (c) at the Landlord's reasonable
discretion, increase or decrease from time to time during such year the amount
initially estimated for such year, all by giving the Tenant written notice
thereof. In such event, the Landlord shall cause the actual amount of such
Additional Rent to be calculated, and the Tenant or the Landlord shall within 30
days pay to the other the amount of any deficiency or overpayment, whichever the
case may be.
(D) Landlord shall have the right to apply any payment of Rent by
Tenant to any amounts outstanding in any order in Landlord's sole discretion.
Acceptance by Landlord of any partial payment of Rent shall not be deemed a
waiver or satisfaction of the Tenant's obligation to pay all remaining amounts
of Rent hereunder, which shall remain due in their entirety according to the
terms of this Lease.
Section 2.05 PRORATION. All items of Rent shall be prorated for any
month during the Term which is not a full calendar month or in which two
different rental rates are applicable. Appropriate prorations shall also be
made in determining the Tenant's proportionate share of increases in Real Estate
Taxes to the extent the tax/fiscal year is not a calendar year. If only part of
any calendar year falls within the Term, the amount computed as Additional Rent
for such calendar year under the foregoing provisions of this section shall be
appropriately prorated, but the expiration of the Term before the end of a
calendar year shall not limit the Tenant's obligation hereunder to pay the
prorated portion of Additional Rent applicable to that portion of such calendar
year falling within the Term.
Section 2.06 LATE PENALTIES. Each such payment of Rent shall be made
promptly when due, without any demand, deduction or setoff whatsoever, at the
place directed by Landlord. Any
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payment of Rent not made when due shall, at Landlord's sole option, bear
interest at the rate of 18% per annum from the due date until paid;
provided, however, Tenant shall have the right once per calendar year to cure
any late payment hereunder within ten days of the due date thereof without
any interest charge. Additionally, any payment of Rent not paid within 10
days of when due shall be considered delinquent and subject to a late payment
charge, for each occurrence of delinquency, of 5% of the amount overdue and
payable. This late payment charge shall be in addition to the interest
provided for above and shall be due and payable with the next succeeding Rent
payment. This late payment charge is intended to compensate Landlord for the
additional administrative costs resulting from Tenant's failure to timely pay
the rent and has been agreed to by Landlord and Tenant after negotiation as a
reasonable estimate of the additional administrative costs incurred by
Landlord as a result of Tenant's failure to timely pay the rent. The
obligation to pay Rent shall survive termination of this Lease.
ARTICLE III - USE OF PREMISES
Section 3.01 USE. The Tenant shall use the Premises for general office
use and for no other purposes. Tenant shall conduct its business and control
its employees, agents, invitees and visitors in such manner (i) as not to cause
the ratio of such persons to the total rentable square feet of the Premises to
be greater than 1 person to every 200 rentable square feet, and (ii) as to not
cause any nuisance or interfere with, annoy, or disturb any other tenant or
Landlord in the operation of the Building, or in the Atrium Area as set forth on
Exhibit A. Tenant will not do anything which could increase insurance rates.
Section 3.02 LAWS. Tenant shall comply with any and all federal, state
and local laws, ordinances and regulations, including but not limited to the
Americans With Disabilities Act, applicable to the Premises, including the
Atrium Area as set forth on Exhibit A, to the Tenant's use of the Premises, and
Tenant shall make any changes or improvements to the Premises required thereby,
subject to Section 5.03 hereof. Landlord shall comply with any and all federal,
state and local laws, ordinances and regulations, including but not limited to
the Americans With Disabilities Act, applicable to the Building and not
otherwise the responsibility of the Tenant hereunder, and shall make any changes
or improvements required thereby.
Section 3.03 COMMON AREAS. The Landlord hereby grants to the Tenant a
non-exclusive license to use (a) all elevators, stairways, lobbies, hallways
and other common areas of the Building, and (b) all portions of the grounds
(including the parking lot as provided below) on which the Building is
located which are manifestly designed and intended for common use by the
occupants of the Building, all for pedestrian ingress and egress to and from
the Premises. Such license shall be exercised in common with the Landlord and
other tenants and their respective employees and invitees and in accordance
with the Rules and Regulations promulgated from time to time pursuant to the
provisions of Article XI. The Tenant shall have the right to use the surface
parking facilities located at the Building at a ratio of 4 parking spaces per
1,000 rentable square feet of the Premises at no charge; provided, however,
that all parking spaces referenced herein shall be nonexclusive, and used in
common with other tenants and the public, except for 10 parking spaces
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which Tenant may mark as "Reserved" at its sole cost and expense, subject to
Landlord approval of the locations of such "Reserved Spaces".
Section 3.04 RELOCATION. The Landlord shall have the right from time to
time during the Term, at the Landlord's expense, to relocate the Tenant from any
premises it occupies, other than the Premises (the "Relocated Premises") from
its present location within the Building to another location within the Building
having at least the same floor area, provided that the Landlord gives the Tenant
written notice of the Landlord's intention to do so at least 60 days before
undertaking such relocation. In such event, the Landlord shall, at the
Landlord's expense, install within the new premises as so relocated improvements
of the same quality and quantity as those made by the Tenant or the Landlord to
the Relocated Premises, and on the completion of such installation shall cause
the Tenant's machinery, furniture, fixtures and equipment within the Relocated
Premises to be moved to the new premises as so relocated. Upon the completion
of such relocation, this Lease shall automatically cease to cover the space
constituting the Relocated Premises immediately before such relocation, and
shall automatically thereafter cover the space to which the new premises have
been relocated, as aforesaid, all on the same terms and subject to the same
conditions as those set forth in the provisions of this Lease as in effect
immediately before such relocation, and all without the necessity of further
action by either party hereto. Also, the Base Rent shall be adjusted on the
basis of the per square foot rates otherwise in effect, and the Tenant's
Proportionate Share of Real Estate Taxes and Operating Expenses shall be
proportionately adjusted, to reflect any difference between the size of the
Relocated Premises prior to relocation and that after relocation. Each party
hereto shall, promptly upon its receipt of a written request therefor from the
other, enter into such amendment of this Lease as the requesting party considers
reasonably necessary to confirm such relocation.
ARTICLE IV - INSURANCE/INDEMNIFICATION
Section 4.01 TENANT'S INSURANCE. The Tenant shall procure and maintain,
at its expense and throughout the Term, the following insurance:
(a) Commercial general liability insurance which (1) insures against
claims for bodily injury, personal injury, advertising injury and property
damage arising from the use, occupancy or maintenance of the Premises or any
other portion of the Property by Tenant or any of its agents, employees,
contractors, invitees and licensees, (2) insures without exclusion damage or
injury arising from heat, smoke or fumes from a hostile fire, (3) has limits of
not less than (i) $1,000,000 per occurrence, (ii) $2,000,000 general aggregate
per location, (iii) $2,000,000 products and completed operations aggregate, (iv)
$1,000,000 for personal and advertising injury liability, (v) $50,000 for fire
damage legal liability, and (vi) $5,000 for medical payments, which minimum
limits may be increased if recommended by Landlord's consultants or other
insurance professionals, (4) includes blanket contractual liability and broad
form property damage liability coverage, and (5) contains a standard separation
of insureds provision;
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(b) Business auto liability insurance which insures against bodily
injury and property damage claims arising out of ownership, use or maintenance
of any auto with a combined single limit per accident of not less than
$1,000,000;
(c) Worker's compensation in statutory limits and employer's
liability insurance with limits of not less than $500,000 for each accident,
$500,000 for each employee for bodily injury by disease, and $500,000 policy
limit for bodily injury by disease;
(d) Umbrella excess liability insurance, in addition to and in excess
of the commercial general liability, business auto liability and employer's
liability insurance described above, which insures against claims for bodily
injury, personal injury, advertising injury and property damage and having
limits of not less than (i) $5,000,000 per occurrence, and (ii) $5,000,000 for
the annual aggregate;
(e) All-risk property insurance covering all of Tenant's personal
property, inventory, equipment, fixtures, alterations and improvements at the
Premises up to the replacement value of such property; and
Each liability insurance policy described above (except employer's
liability policies) shall name Landlord, Landlord's agent and advisor,
Landlord's property manager, and any Mortgagees (defined in Section 12.01
below), and expressly including any trustees, directors, officers, employees or
agents of any such entities, all as additional insureds. Each property
insurance policy described above shall name Landlord as loss payee with respect
to any permanently affixed improvements and betterments to the Premises. All
such policies shall (i) be issued by insurers licensed to do business in the
state in which the Property is located, (ii) be issued by insurers with a
current rating of "A-" "VIII" or better in Best's Insurance Reports, (iii) be
primary without right of contribution from any of Landlord's insurance, (iv) be
written on an occurrence (and not claims-made) basis, and (v) be uncancellable
without at least 20 days' prior written notice to the Landlord and any
Mortgagee. At least 15 days before the Commencement Date (or, if earlier, the
date Tenant first enters into the Premises for any reason), Tenant shall deliver
to the Landlord certificates of insurance satisfactory to Landlord for each such
policy required above. Within 10 days after any such policy expires, Tenant
shall deliver to the Landlord a certificate of renewal evidencing replacement of
the policy. The limits of insurance required by this Lease or as otherwise
carried by Tenant shall not limit the liability of Tenant or relieve Tenant of
any obligations under this Lease, except to the extent provided in any waiver of
subrogation contained in this Lease. Tenant shall have sole responsibility for
payment of all deductibles.
Section 4.02 LANDLORD'S INSURANCE. The Landlord shall maintain
throughout the Term all-risk or fire and extended coverage insurance upon the
Building in an amount equal to the replacement value thereof. The premiums for
such insurance and of each endorsement thereto shall be deemed to be part of the
Insurance Costs for purposes of Section 2.03 hereof. Furthermore, Tenant shall
pay, as Additional Rent and as billed by Landlord, the entire amount of any
increase in premiums for any
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insurance obtained by Landlord which occurs solely due to the particular use
of the Premises by Tenant.
Section 4.03 WAIVER OF SUBROGATION. Notwithstanding anything to the
contrary in this Lease, Landlord and Tenant each waives all rights to recovery,
claims or causes of action against the other and the other's agents, trustees,
officers, directors and employees on account of any loss or damage which may
occur to the Premises, the Property or any improvements thereto or to any
personal property of such party to the extent such loss or damage is caused by a
peril which is required to be insured against under this Lease, regardless of
the cause or origin (including negligence of the other party). Landlord and
Tenant each covenants to the other that, to the fullest extent permitted by law,
no insurer shall hold any right of subrogation against the other party.
Landlord and Tenant covenant to the other that all policies of insurance
maintained pursuant to this Lease respecting property damage shall permit such
waiver of subrogation, and each party agrees to advise all of its insurers in
writing of the waiver and to provide the other with evidence of such
subrogation.
Section 4.04 INDEMNIFICATION. Tenant hereby agrees to indemnify and hold
Landlord and Landlord's agents and advisors harmless from and against any cost,
damage, claim, liability or expense (including attorney's fees) incurred by or
claimed against Landlord, directly or indirectly, as a result of or in any way
arising from Tenant's use and occupancy of the Premises or in any other manner
which relates to the business of Tenant. Furthermore, Tenant hereby releases
and absolves Landlord from any liability for theft, damage or other loss,
regardless of the cause or reason, in connection with any furniture, fixtures,
machinery, equipment, inventory or other personal property of any kind belonging
to Tenant or to any of its employees, agents, invitees or licensees, except to
the extent such theft, damage, or loss is caused by the intentional misconduct
or gross negligence of Landlord, its employees, agents, or contractors.
ARTICLE V - IMPROVEMENTS TO PREMISES
Section 5.01 INITIAL IMPROVEMENTS.
(A) Certain improvements shall be constructed in the Premises
according to the space plan attached hereto as Exhibit B (the "Space
Improvements") for the purpose of initially preparing the Premises for occupancy
by Tenant, all to be paid for as provided in subsection (B) of this section
below. Such Space Improvements shall be constructed by Landlord in accordance
with the following procedures:
(1) The following provisions shall apply:
(a) Landlord shall promptly after execution of this Lease
engage an architect to prepare plans and specifications of the Space
Improvements for Tenant's review and approval. Such plans and specifications
shall be submitted to Tenant within 21 days after the date hereof, and Tenant
shall review and either approve or notify Landlord of proposed
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changes thereto within 7 days after receiving same. If no response is
forthcoming from Tenant within this 7 day period, such plans shall be deemed
approved. Landlord shall make any changes to such plans reasonably (and
timely) requested by Tenant and necessary to make the plans and
specifications conform to Exhibit B.
(b) Promptly after the plans and specifications have been
finalized, Landlord shall solicit a minimum of 3 bids for construction of the
Space Improvements and, unless otherwise agreed to by Tenant, the lowest bid
shall be accepted. Landlord shall enter into written contracts with a
contractor or contractors for the construction of such improvements and, if
appropriate, engage a construction manager for oversight and supervision of the
construction. Landlord shall assign to Tenant all warranties relating to the
construction of the Space Improvements from vendors, contractors, or the
construction manager to the extent permissible under any such contracts or
applicable law.
(c) Tenant and its agents and contractors shall have the
right to enter the Premises prior to the Commencement Date for purposes of
installing wires and cables for telephones and computers, provided that in doing
so such parties shall not interfere with Landlord or its contractors
constructing the Space Improvements, and further provided that prior to any such
entry Tenant shall have obtained the insurance required under Article IV hereof,
and its contractors shall have obtained such liability, workmen's compensation
and other insurance as is reasonably acceptable to Landlord. The Commencement
Date shall not be deemed to occur upon such entry unless Tenant begins
commencing its normal business operations within the Premises.
(B) All costs and expenses of designing and constructing the Space
Improvements described in subsection (A) above shall be paid as follows:
(1) Landlord shall provide and pay an allowance (the
"Allowance") of $14 per rentable square foot of the Premises towards (i) the
costs of designing the space plan in Exhibit B and all of the plans and
specifications for the Space Improvements, and (ii) the costs of constructing
the Space Improvements, including but not limited to all fees, costs and
expenses paid under construction contracts and subcontracts, construction
managers' fees, costs and expenses, the costs of materials, supplies, permits
and other items, and any other out-of-pocket expenditures incurred in any
connection with such construction. Such Allowance shall not be paid for any
other costs or purposes. Tenant shall pay any and all costs of designing and
constructing the Space Improvements which are in excess of the Allowance;
provided Landlord shall cause its architectural firm to prepare a preliminary
space plan for the Tenant for a cost not to exceed $2,300.00.
(2) Tenant shall pay to Landlord the amount by which the total
costs to Landlord of designing and constructing the Space Improvements exceeds
the Allowance within 15 days after receiving Landlord's written statement of
such costs.
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(C) Landlord shall use commercially reasonable efforts to complete
such improvements on or before the Target Date set forth in Section 1.01 hereof,
but Landlord shall have no liability to the Tenant hereunder if prevented from
doing so due to strike or other labor troubles, governmental restrictions,
failure or shortage of utility service, national or local emergency, accident,
flood, fire or other casualty, adverse weather condition, other act of God,
inability to obtain a building permit or a certificate of occupancy, or any
other cause beyond the Landlord's reasonable control. In such event, the
Commencement Date and Expiration Date shall be postponed for a period equaling
the length of such delay. However, if any delay in completion of the Space
Improvements or in delivering possession of the Premises to Tenant are caused by
Tenant, including but not limited to failure of Tenant to timely respond to
submissions by Landlord under subsection (A) of this section above or Tenant's
requesting changes in the Space Improvements which delay completion thereof,
then Tenant shall commence all of its obligations hereunder (including the
payments of Rent), and all terms herein shall be effective and binding, on that
date reasonably calculated by Landlord or its contractor as the date on which
Landlord would have substantially completed the Space Improvements if not for
such delay.
Section 5.02 ACCEPTANCE. Except for latent defects or work described in
Exhibit B but remaining incomplete, the Tenant shall for all purposes of this
Lease be deemed to have accepted the Premises upon assuming occupancy thereof
and to have acknowledged the Premises to be in the condition required hereunder.
Section 5.03 TENANT'S ALTERATIONS. The Tenant shall not make any
alteration, addition or improvement to the Premises, whether structural or
nonstructural and including any signs or other items which may be visible from
the exterior of the Premises, without the Landlord's prior written consent,
which consent shall not be unreasonably withheld. Tenant shall provide such
drawings, plans and specifications as are requested by Landlord in reviewing any
such proposed improvements. Likewise, Landlord shall have the right to place
conditions upon the granting of its approval of any alteration or improvement,
including but not limited to requirements that the work be performed only by
bonded contractors or that Landlord itself perform the work at the Tenant's
expense. If the Landlord consents to any such proposed alteration, addition or
improvement, it shall be made at the Tenant's sole expense (and the Tenant shall
hold the Landlord harmless from any cost incurred on account thereof), and at
such time and in such manner as to not unreasonably interfere with the use and
enjoyment of the remainder of the Property by any other tenant or other person.
All such alterations and improvements shall comply in all respects with any and
all applicable federal, state and local laws, ordinances and regulations,
including but not limited to the Americans With Disabilities Act and regulations
promulgated thereunder. Furthermore, Tenant shall indemnify Landlord from all
damages, losses or liability arising from such alterations or improvements or
the construction thereof by Tenant or by any other party other than Landlord.
Section 5.04 MECHANICS' LIENS. The Tenant shall (a) immediately bond or
have released any mechanics', materialman's or other lien filed or claimed
against any or all of the Premises, the Building, or any other property owned or
leased by the Landlord by reason of labor or materials provided for the Tenant
or any of its contractors or subcontractors, or otherwise arising out of the
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Tenant's use or occupancy of the Premises, and (b) defend, indemnify and hold
harmless the Landlord against and from any and all liability or expense
(including but not limited to attorneys' fees) incurred by the Landlord on
account of any such lien or claim.
Section 5.05 FIXTURES. Any and all improvements, repairs, alterations or
other property attached to, used in connection with or otherwise installed
within the Premises by the Landlord or the Tenant shall, immediately on the
completion of their installation, become the Landlord's property without payment
therefor by the Landlord, except that any furniture, appliances and office
equipment installed by the Tenant and used in the conduct of the Tenant's trade
or business (rather than to service the Premises or any of the remainder of the
Building or the Property) shall remain the Tenant's property.
ARTICLE VI - MAINTENANCE AND SERVICES
Section 6.01 ORDINARY SERVICES. During the hours of 6:00 a.m. to 6:00
p.m. Monday through Friday and 7:00 a.m. to 2:00 p.m. on Saturdays (except
federal holidays) in the appropriate seasons of the year, Landlord shall provide
heating and air-conditioning to the Premises for the comfortable use and
occupancy of the Premises. In addition, Landlord shall provide (a) electricity
and water suitable for the use of the Premises in accordance with the provisions
of Section 3.01, (b) automatic elevator service within the Building, (c)
janitorial service five (5) days per week and trash removal service customarily
provided in similar buildings in the Heathrow, Florida area, (d) public
restrooms and supplies therefor, and (e) any other services customarily provided
in similar buildings in the Heathrow, Florida area, except for maintenance of
the private elevator servicing the Premises. All such services shall be an
Operating Expense of the Building for which Tenant pays a proportionate share as
described in Section 2.03 above.
Section 6.02 EXTRAORDINARY SERVICES. The Landlord shall not be obligated
to provide to or for the benefit of the Premises any of the services referred to
in the provisions of Section 6.01 above other than during the hours referred to
therein. If the Tenant requests such services to be continued during extended
hours, Tenant shall pay to the Landlord as Additional Rent the amount from time
to time charged by the Landlord for such extended service, such amount to be
calculated as a function of the costs to provide such services during extended
hours and the number of tenants sharing same at the time requested. Any service
charge for air conditioning during extended hours shall not exceed Twenty-Five
Dollars ($25.00) per hour.
Section 6.03 EXCESSIVE USE. The Tenant shall not, without first
obtaining the Landlord's written consent thereto, install within the Premises
any electrical machinery, appliances or equipment (including, by way of example
rather than of limitation, any electrical heating, cooking, water-heating or
refrigeration equipment, kitchen equipment, photocopying equipment, electronic
data processing machinery, reproduction equipment or punch-card machinery) which
uses electrical current in excess of that which is standard for the Building,
and Tenant shall pay as Additional Rent the additional expense incurred by the
Landlord as a result of any of the foregoing, including that resulting from any
installation of such equipment. The Landlord shall
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have the right from time to time, using sub-meters or other methods, to
measure the consumption of electricity or other utilities upon the Premises.
In the event Landlord determines Tenant is consuming a disproportionate
amount of electricity or other utilities at the Premises in relation to other
tenants, and regardless of whether such determination is reached by
submetering or other methods, Tenant shall pay Landlord (a) within 30 days
after billing, the out-of-pocket costs of installing submeters, and (b) on a
monthly basis, as Additional Rent, the cost of all such electricity or other
utilities consumed at the Premises as indicated by the submeter(s).
Section 6.04 MAINTENANCE BY TENANT. The Tenant shall at all times
maintain the interior of the Premises in good, clean and safe repair and
condition, ordinary wear and tear excepted.
Section 6.05 MAINTENANCE BY LANDLORD. The Landlord shall furnish,
supply, maintain, and/or replace in good order and repair, consistent with
buildings in the Heathrow, Florida area similar to the Building, (a) the
roof and other structural portions of the exterior of the Building, (b) the
hallways, stairways, lobbies, elevators, restrooms, parking areas and other
common areas of the Building, and (c) the base building heating, ventilating
and air-conditioning facilities.
Section 6.06 INTERRUPTION. The Landlord shall have no liability to the
Tenant on account of any failure, modification or interruption of electricity,
water or other utility or HVAC or other service, but in the event of
interruption Landlord shall take reasonable steps to provide for the resumption
of such service to the extent the same is within Landlord's control.
Notwithstanding the foregoing, if any such failure, modification, or
interruption renders the Premises untenantable, and continues for a period of
more than five business days, Tenant's obligation to pay Rent hereunder shall be
equitably abated commencing after such five day period.
ARTICLE VII - RIGHT OF ENTRY
Section 7.01 RIGHT OF ENTRY. Landlord and its agents and contractors
shall be entitled to enter the Premises at any time (a) to inspect the Premises,
(b) to exhibit the Premises to any existing or prospective purchaser, tenant or
mortgagee thereof, (c) to make any alteration, improvement or repair to the
Building or the Premises, or (d) for any other purpose relating to the operation
or maintenance of the Property, all provided that the Landlord shall (1) give
the Tenant at least 24 hours' prior notice of its intention to enter the
Premises (unless doing so is impractical or unreasonable because of emergency),
and (2) use reasonable efforts to avoid interfering with the Tenant's use and
enjoyment thereof.
ARTICLE VIII - CASUALTIES
Section 8.01 GENERAL. If the Premises are damaged by fire or other
casualty during the Term, then the following shall apply:
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(A) The Landlord shall restore the Premises with reasonable
promptness, taking into account the time required by the Landlord to effect a
settlement with, and to procure any insurance proceeds from, any insurer against
such casualty, to substantially the same condition as existed immediately before
such casualty; provided, such obligation to restore shall be limited to the
amount of available insurance proceeds for such restoration. Landlord may
temporarily enter and possess any or all of the Premises for such purpose. The
Landlord shall not be obligated to repair, restore or replace any fixture,
improvement, alteration, furniture or other property owned or installed by the
Tenant.
(B) The times for commencement and completion of any such restoration
shall be extended for the period of any delay arising due to force majeure
causes beyond the Landlord's control and any delay in the receipt of insurance
funds. If the Landlord undertakes to restore the Premises, but such restoration
cannot be accomplished within 180 days after the receipt of available insurance
funds, then Tenant may terminate this lease by giving written notice thereof to
the Landlord within 15 days after receipt of such estimate from Landlord.
(C) From the time of such casualty to the completion of restoration
as described above, Tenant's rental obligations shall be abated proportionately
from that portion of the Premises which is rendered untenantable as a result of
the casualty.
Section 8.02 SUBSTANTIAL DESTRUCTION. Anything contained in the
foregoing provisions of this section to the contrary notwithstanding:
(A) If during the Term the Building is so damaged by fire or other
casualty that (a) either the Premises or the Building are rendered substantially
unfit for occupancy, as reasonably determined by the Landlord, or (b) the
Building is damaged to the extent that the Landlord elects to demolish the
Building, or if any mortgagee or lender requires that any or all of the
insurance proceeds issued on account thereof be used to retire any or all of the
debt secured by its mortgage, then in any such case the Landlord may elect to
terminate this Lease as of the date of such casualty by giving written notice
thereof to the Tenant within 30 days after such date; and
(B) In such event, (1) the Tenant shall pay to the Landlord the Base
Rent and any Additional Rent payable by the Tenant hereunder and accrued through
the date of such casualty, (2) the Landlord shall repay to the Tenant any and
all prepaid Rent for periods beyond such casualty, and (3) the Landlord may
enter upon and repossess the Premises without further notice.
Section 8.03 TENANT'S NEGLIGENCE. Anything contained in any provision of
this Lease to the contrary notwithstanding, if any such damage to the Premises,
the Building or Property are caused by or result from the grossly negligent or
intentional act or omission of the Tenant or any of its employees, contractors,
agents, invitees or licensees, then (a) the Rent shall not be abated or
apportioned as aforesaid, and (b) the Tenant shall pay to the Landlord upon
demand, as Additional Rent, the cost of (i) any repairs and restoration made or
to be made as a result of such
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damage, or (ii) (if the Landlord elects not to restore the Building) any
damage or loss which the Landlord incurs as a result of such damage, except
if and to the extent that the Tenant is released from liability therefor
pursuant to the provisions of Section 4.03 hereof.
ARTICLE IX - CONDEMNATION
Section 9.01 RIGHT TO AWARD. If any or all of the Premises are taken by
the exercise of any power of eminent domain or are conveyed to or at the
direction of any governmental entity under a threat of any such taking (each of
which a "Condemnation"), the Landlord shall be entitled to collect from the
condemning authority thereunder the entire amount of any award or consideration
for such conveyance, without deduction therefrom for any leasehold or other
estate held by the Tenant under this Lease. The Landlord shall be entitled to
conduct any condemnation proceeding and any settlement connected therewith free
of interference from the Tenant, and the Tenant hereby waives any right which it
has to participate therein. However, the Tenant may seek, in a separate
proceeding, a separate award on account of any damages or costs incurred by the
Tenant as a result of any such Condemnation, so long as such separate award in
no way diminishes any award or payment which the Landlord would otherwise
receive as a result of such Condemnation.
Section 9.02 EFFECT OF CONDEMNATION. If (a) all of the Premises are
covered by a Condemnation, or (b) any part of the Premises is covered by a
Condemnation and the remainder is insufficient for the reasonable operation of
the Tenant's business, or (c) any of the Building is covered by a Condemnation
and, in the Landlord's reasonable opinion, it would be impractical to restore
the remainder thereof, or (d) any of the rest of the Property is covered by a
Condemnation and, in the Landlord's reasonable opinion, it would be impractical
to continue to operate the remainder of the Property thereafter, then, in any
such event, the Term shall terminate on the date on which possession of the
property covered by such Condemnation is taken by the condemning authority
thereunder, and all Rent (including any Additional Rent and other charges
payable hereunder) shall be apportioned and paid to such date. If there is a
Condemnation and the Term does not terminate pursuant to the foregoing
provisions of this subsection, the operation and effect of this Lease shall be
unaffected by such Condemnation, except that the Base Rent shall be reduced in
proportion to the square footage of floor area, if any, of the Premises covered
by such Condemnation.
Section 9.03 INTERRUPTION. If there is a Condemnation, the Landlord
shall have no liability to the Tenant on account of any (a) interruption of the
Tenant's business upon the Premises, (b) diminution in the Tenant's ability to
use the Premises, or (c) other injury or damage sustained by the Tenant as a
result of such Condemnation.
ARTICLE X - ASSIGNMENT/SUBLETTING
Section 10.01 ACTIONS COVERED. Any assignment by Tenant of this Lease or
its rights hereunder, any subletting of the Premises and any license, mortgage,
pledge or other transfer of
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any part of the Premises or any of Tenant's interests therein or under this
Lease shall all be referred to hereinafter as a "Transfer." However, the
sale, assignment or other transfer of any direct or indirect controlling
interest in the Tenant (if a corporation), the sale of substantially all of
Tenant's assets, and the merger or consolidation of Tenant into another
organization, after which Tenant shall not be the surviving corporation,
shall not be considered a "Transfer" for the purposes of this Lease, provided
that Landlord has determined that the surviving entity in any such instance
has a networth of not less than the greater of Thirty-Five Million Dollars
($35,000,000.00) or Tenant's networth at such time.
Section 10.02 RESTRICTIONS. Tenant shall not Transfer this Lease or the
Premises without first obtaining the Landlord's prior written consent thereto,
which consent shall not be unreasonably withheld, and otherwise complying with
the terms of this Section; provided, however, Tenant may Transfer 15,000
rentable square feet of floor area or more hereunder only to an entity having a
networth in excess of Four Million Dollars ($4,000,000.00).. In the event that
Tenant proposes any Transfer, Tenant shall notify Landlord in writing at least
30 days before the date on which the Transfer is to be effective and, as
included with such notice, furnish Landlord with (i) the name of the entity
receiving such Transfer (the "Transferee"), (ii) a detailed description of the
business of the Transferee, (iii) audited financial statements of the
Transferee, (iii) all written agreements governing the Transfer, (iv) any other
information reasonably requested by the Landlord with respect to the Transfer or
the Transferee, and (v) Tenant reimburses Landlord for reasonable legal fees,
costs and other expenses incurred in connection with the review and processing
of such documentation. At Landlord's sole option, Landlord may elect to
recapture all or any portion of the Premises proposed by Tenant for any such
Transfer by terminating this Lease with respect to such portion of the Premises,
and releasing Tenant from its obligations hereunder, except for any obligations
which expressly survive the termination of this Lease. Landlord shall respond
to Tenant's request for approval or disapproval of the Transfer, or with
Landlord's election to recapture the portion of the Premises proposed by Tenant
for any such Transfer as provided herein, within 20 days after Landlord receives
the request and all documents and information required above.
Section 10.03 LIABILITY TO LANDLORD. Tenant hereby agrees that
notwithstanding anything in this Lease to the contrary, and regardless of
whether or not Landlord's consent is required hereunder, no Transfer shall be
valid or effective unless and until the Transferee agrees in a written document,
in form and substance satisfactory to Landlord, that the Transferee shall (1) in
the case of a subletting of any part of the Premises, observe and perform all
duties, obligations and liabilities of the Tenant under the terms of this Lease
as such terms relate to the space subleased, or (2) in the case of all other
Transfers, observe and perform all duties, obligations and liabilities of the
Tenant under the terms of this Lease. In addition, no Transfer of any kind,
regardless of whether or not Landlord's consent thereto is required hereunder,
shall serve to relieve or release the Tenant in any way from full and direct
liability for the timely performance of all of the Tenant's duties and
obligations under this Lease.
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Section 10.04 EXTINGUISHING OF OPTIONS. Any renewal or expansion options
held by Tenant pursuant to the terms of this Lease shall be extinguished by
Tenant upon the consummation of a Transfer as provided herein.
Section 10.05 EXCESS RENTS. In the event that Tenant effects any Transfer
and at any time receives rent and/or other consideration on a periodic basis
which exceeds that which Tenant is obligated to pay to Landlord hereunder,
Tenant shall pay to Landlord such excess rent or other consideration when and as
received by Tenant.
Section 10.06 LANDLORD'S TRANSFERS. Landlord shall have the unrestricted
right to assign or transfer its interest in this Lease to purchasers of the
Building, to holders of mortgages or deeds of trust on the Building, or to any
other party, in which event Landlord shall be released from all duties,
obligations and liabilities arising hereunder after the assignment or transfer
becomes effective, including but not limited to the transfer of any security
deposit hereunder.
ARTICLE XI - RULES & REGULATIONS
Section 11.01 LANDLORD'S RULES. The Landlord shall have the right to
impose and subsequently modify, from time to time and at its sole discretion,
reasonable rules and regulations (hereinafter referred to as the "Rules and
Regulations") having uniform applicability to all tenants of the Building
(subject to the provisions of their respective leases) and governing their use
and enjoyment of the Building and the remainder of the Property. The Tenant and
its agents, employees, invitees and licensees shall comply with such Rules and
Regulations. A copy of the Rules and Regulations in effect on the date hereof
is attached hereto as Exhibit C.
ARTICLE XII - MORTGAGE LENDERS
Section 12.01 SUBORDINATION. This Lease shall be subject and subordinate
to the lien, operation and effect of each mortgage, deed of trust, ground lease
and/or other similar instrument covering any or all of the Premises or the
Property, and each renewal, modification or extension thereof (each of which
referred to as a "Mortgage"), all automatically and without the necessity of any
further action by either party hereto, provided, however, that in the event the
beneficiary under any such Mortgage (referred to as a "Mortgagee") succeeds to
the interest of Landlord hereunder through foreclosure or otherwise, such
Mortgagee shall honor this Lease and not disturb Tenant in its possession of the
Premises except upon an Event of Default (defined in Section 14.01 below), and
Landlord shall provide Tenant with the form of such nondisturbance agreement
from any Mortgagee. In addition, Tenant shall attorn to any such Mortgagee and
agrees that such Mortgagee shall not be liable to Tenant for any defaults by
Landlord under this Lease or for any other event occurring prior to such
Mortgagee's succeeding to the interest of Landlord hereunder.
Section 12.02 WRITTEN AGREEMENT. The Tenant shall, within 7 days after
request by the Landlord or any Mortgagee, execute, acknowledge and deliver such
further instrument as is
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requested by Landlord or any Mortgagee to acknowledge the rights of the
parties described in Section 12.01 above and providing such other information
and certifications as is reasonably requested. Any Mortgagee may at any time
subordinate the lien of its Mortgage to the operation and effect of this
Lease without obtaining the Tenant's consent thereto, in which event this
Lease shall be deemed to be senior to such Mortgage without regard to their
respective dates of execution, delivery and/or recordation among the land
records of the jurisdiction in which the Property is located.
Section 12.03 ESTOPPEL CERTIFICATE. The Tenant shall from time to time,
within 7 days after request by the Landlord or any Mortgagee, execute,
acknowledge and deliver to the Landlord (or, at the Landlord's request, to any
existing or prospective purchaser, assignee or Mortgagee) a written
certification (a) that this Lease is unmodified and in full force and effect
(or, if there has been any modification, stating the nature of such
modification), (b) as to the dates to which the Base Rent and any Additional
Rent and other charges arising hereunder have been paid, (c) as to the amount of
any prepaid Rent or any credit due to the Tenant hereunder, (d) that the Tenant
has accepted possession of the Premises and all improvements thereto are as
required hereunder, and the date on which the Term commenced, (e) as to whether,
to the best knowledge, information and belief of the Tenant, the Landlord or the
Tenant is then in default in performing any of its obligations hereunder (and,
if so, specifying the nature of each such default), and (f) as to any other fact
or condition reasonably requested by the Landlord or such other party. Any such
certificate may be relied upon by the Landlord and any such other party to whom
the certificate is directed. Landlord shall, within 7 days after a request by
Tenant, provide Tenant or any third party designated by Tenant, written
confirmation concerning the terms and conditions of this Lease, provided no such
written confirmation may be recorded in the public records without the consent
of the Landlord.
ARTICLE XIII - ENVIRONMENTAL COVENANTS
Section 13.01 PROHIBITIONS. Tenant agrees that Tenant, its employees,
licensees, invitees, agents and contractors shall not use, manufacture, release,
store or dispose of on, under or about the Premises any explosives, flammable
substances, radioactive materials, asbestos in any form, paint containing lead,
materials containing urea formaldehyde, polychlorinated biphenyls, or any other
hazardous, toxic or dangerous substances, wastes or materials, whether having
such characteristics in fact or defined as such under federal, state or local
laws or regulations and any amendments thereto (all such materials and
substances being hereinafter referred to as "Hazardous Materials") provided that
Tenant may store products which are of a type customarily found in offices (such
as toner for copiers and the like) in a safe and lawful manner and without
contaminating the Premises or the environment.
Section 13.02 INSPECTION. Landlord, in addition to its other rights under
this Lease, may enter upon the Premises at any time for the purposes of
inspecting to determine whether the Premises or the environment have become
contaminated with Hazardous Materials. In the event Landlord discovers the
existence of any such Hazardous Materials due to fault or other act of Tenant or
its
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agents, employees, invitees or licensees, Tenant shall reimburse Landlord
upon demand for the costs of such inspection, sampling and analysis.
Section 13.03 INDEMNIFICATION. Without limiting the above, Tenant shall
indemnify and hold harmless Landlord from and against any and all claims,
losses, liabilities, damages, costs and expenses, including without limitation
attorneys' fees and the costs of any required or necessary repair, cleanup or
detoxification, arising out of or in any way connected with the existence, use,
manufacture, storage or disposal of Hazardous Materials by Tenant or its
employees, agents, invitees, licensees or contractors on, under or about the
Premises, the Building or the Property. The indemnity obligations of Tenant
under this clause shall survive any termination of this Lease.
ARTICLE XIV - DEFAULT AND REMEDIES
Section 14.01 DEFAULTS. As used in the provisions of this Lease, each of
the following events shall constitute, and is hereinafter referred to as, an
"Event of Default":
(A) If the Tenant fails to (1) pay any Rent or any other sum which it
is obligated to pay by any provision of this Lease, when and as due and payable
hereunder, or (2) perform any of its other obligations under the provisions of
this Lease; or
(B) If the Tenant or any guarantor of this Lease (1) applies for or
consents to the appointment of a receiver, trustee or liquidator of the Tenant
or of all or a substantial part of its assets, (2) is subject to a petition in
bankruptcy or admits in writing its inability to pay its debts as they come due,
(3) makes an assignment for the benefit of its creditors, (4) files a petition
or an answer seeking a reorganization or an arrangement with creditors, or seeks
to take advantage of any insolvency law, (5) performs any other act of
bankruptcy, or (6) files an answer admitting the material allegations of a
petition filed against the Tenant in any bankruptcy, reorganization or
insolvency proceeding.
Section 14.02 GRACE PERIOD. Anything contained in the provisions of this
article to the contrary notwithstanding, on the occurrence of an Event of
Default, the Landlord shall not exercise any right or remedy which it holds
under any provision of this Lease or applicable law unless and until:
(A) The Landlord has given written notice thereof to the Tenant, and
(B) The Tenant has failed, (1) if such Event of Default consists of a
failure to pay money, to pay all of such money within 5 days after such notice,
or (2) if such Event of Default consists of something other than a failure to
pay money, to fully cure such Event of Default within 15 days after such notice
or, if such Event of Default cannot be cured within 15 days and Tenant commences
to cure same within 15 days, to proceed diligently with efforts to
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cure such Event of Default and to fully cure same within 30 days or such
additional time as may be reasonable under the circumstances; all provided,
that
(C) No such notice shall be required, and the Tenant shall be
entitled to no such grace period, (1) in any emergency situation in which the
Landlord acts to cure such Event of Default pursuant to the provisions of
subsection (B) in Section 14.03 below, or (2) if an Event of Default occurs more
than twice during any 12 month period, or (3) in the case of any Event of
Default enumerated in the provisions of subsection (B) in Section 14.01 above.
Section 14.03 REMEDIES. Upon the occurrence of any Event of Default, the
Landlord may (subject to Section 14.02 above) take any or all of the following
actions:
(A) Sell at public or private sale all or any part of the fixtures,
equipment, inventory and other property belonging to Tenant and in which the
Landlord has a lien by grant from Tenant, statute or otherwise, at which sale
Landlord shall have the right to become the purchaser upon being the highest
bidder, and apply the proceeds of such sale, first, to the payment of all costs
and expenses of seizing and storing such property and conducting the sale
(including all attorneys' fees), second, toward the payment of any indebtedness,
including (without limitation) that for Rent, which may be or may become due
from Tenant to Landlord, and, third, to pay Tenant any surplus remaining after
all indebtedness of Tenant to Landlord including expenses has been fully paid;
(B) Perform on behalf of and at the expense of Tenant any obligation
of Tenant under this Lease which Tenant has failed to perform, without prior
notice to Tenant, the total cost of which by Landlord, together with interest
thereon at the rate of 18% per annum from the date of such expenditure, shall be
deemed Additional Rent and shall be payable by Tenant to Landlord upon demand;
(C) With or without terminating this Lease and the tenancy created
hereby, re-enter the Premises with or without court action or summary
proceedings, remove Tenant and all other persons and property from the Premises,
and store any such property in a public warehouse or elsewhere at the costs of
and for the account of Tenant, all without resort to legal process and without
Landlord being deemed guilty of trespass or becoming liable for any loss or
damage occasioned thereby;
(D) With or without terminating this Lease, and from time to time,
make such improvements, alterations and repairs as may be necessary in order to
relet the Premises, and relet the Premises or any part thereof upon such term or
terms (which may be for a term extending beyond the term of this Lease) at such
rental or rentals and upon such other terms and conditions (which may include
concessions, free rent and/or improvements) as Landlord in its sole discretion
may deem advisable; and, upon each such reletting, all rentals received by
Landlord shall be applied, first, to the payment of any indebtedness other than
Rent due hereunder from Tenant to Landlord, second, to the payment of all costs
and expenses of such reletting (including but not limited to brokerage fees,
attorneys' fees and costs of improvements, alterations and repairs),
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third, to the payment of all Rent due and unpaid hereunder, and the balance,
if any, shall be held by Landlord and applied in payment of future rent as
the same may become due and payable hereunder;
(E) Enforce any provision of the Lease or any other agreement between
the parties by injunction, temporary restraining order or other similar
equitable remedy, to which the Tenant hereby expressly consents and agrees;
and/or
(F) Exercise any other legal or equitable right or remedy which it
may have by law or otherwise.
No reentry or taking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease unless a written
notice of such intention be given to Tenant or unless the termination thereof be
decreed by a court of competent jurisdiction. Notwithstanding that Landlord may
have re-leased the Premises without termination, Landlord may at anytime
thereafter elect to terminate this Lease for any previous default. If the
Premises or any part thereof is re-leased, Landlord shall not be liable for, nor
shall Tenant's obligations hereunder be diminished by reason of, any failure by
Landlord to relet the Premises or any failure by Landlord to collect any rent
due upon such reletting. No action taken by the Landlord under the provisions
of this section shall operate as a waiver of any right which the Landlord would
otherwise have against the Tenant for the Rent hereby reserved or otherwise, and
the Tenant shall at all times remain responsible to the Landlord for any loss
and/or damage suffered by the Landlord by reason of any Event of Default.
Section 14.04 DAMAGES. Upon any Event of Default, Tenant shall remain
liable to the Landlord for the following amounts: (a) any Rent of any kind
whatsoever which may have become due with respect to the period in the Term
which has already expired, (b) any rental abatements or other free-rent
concessions extended to Tenant under the Lease, (c) all Rent which becomes due
during the remainder of the Term, (d) all costs, fees and expenses incurred by
Landlord in leasing the Premises to others from time to time, including but not
limited to leasing commissions, construction and other build-out costs, design
and permitting costs and the like, and (e) all costs, fees and expenses incurred
by Landlord in pursuit of its remedies hereunder, including but not limited to
reasonable attorneys' fees and court costs. All such amounts shall be due and
payable immediately upon demand by Landlord and shall bear interest at 18% per
annum until paid. Furthermore, at Landlord's option, Tenant shall be obligated
to pay, in lieu of item (c) above in this Section 14.04, an amount (the
"Substitute Amount") which is equal to the present value of all Rent which would
become due during the remainder of the Term, including all Additional Rent which
shall be deemed to continue and increase over such remainder of the Term at the
average rate of increase occurring over the then-expired portion of the Term,
with such present value to be determined by discounting at an annual rate of
interest which is equal to the bond-equivalent yield for the most recent auction
of U.S. Treasury Bills with a 1-year maturity. Provided that the Substitute
Amount is actually paid in full to Landlord and the Premises are surrendered by
Tenant, Landlord shall affirmatively list the Premises with its broker as
available for lease (to the extent Landlord's contract with such broker does not
already apply to all vacant space at the Building),
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and Tenant shall receive a reduction and reimbursement of all such amounts
which is equal to the amount of any rent actually received from others to
whom the Premises may be rented during the remainder of the original Term.
Tenant and Landlord acknowledge and agree that payment to Landlord of the
foregoing Substitute Amount, together with the corresponding reduction by
reimbursement to Tenant of any rent paid by substitute tenants, are a
reasonable forecast of the actual damages which will be suffered by Landlord
in case of an Event of Default by Tenant, which actual damages are otherwise
difficult or impossible to ascertain, and therefore such payment and
reimbursement together constitute liquidated damages and not a penalty. Any
suit or action brought by Landlord to collect any such liquidated damages
shall not in any manner prejudice any other rights or remedies of Landlord
hereunder.
Section 14.05 LANDLORD'S LIEN. Tenant hereby grants to Landlord an
express first and prior contract lien and security interest on all fixtures,
equipment, inventory and other property which may be placed in the Premises or
affixed or attached thereto and also upon all proceeds of any insurance which
may be issued on account of damage to any such property. All exemption laws are
hereby waived in favor of said lien and security interest benefiting Landlord.
This lien and security interest is given in addition to any statutory lien
benefiting Landlord and shall be cumulative thereto or alternative thereto as
elected by Landlord at any time. If requested by Landlord, Tenant shall
execute, deliver to Landlord and/or file at Tenant's expense with the public
records Uniform Commercial Code financing statements in sufficient form to
perfect the security interest hereby given. Landlord shall, in addition to all
of its rights under the Lease, also have all of the rights and remedies of a
secured party under the Uniform Commercial Code of the state in which the
Premises are located.
Section 14.06 WAIVER OF JURY TRIAL. All parties hereto, both the Landlord
and Tenant as principals and any guarantors, hereby release and waive any and
all rights provided by law to a trial by jury in any court or other legal
proceeding initiated to enforce the terms of this Lease, involving any such
parties, or connected in any other manner with this Lease. Tenant shall not
interpose any counterclaim of any kind in any action or proceeding by Landlord
to recover possession of the Premises based on non-payment of Rent. In the
event of a dispute between Landlord and Tenant, Tenant shall pay Rent into the
registry of the court having jurisdiction over such dispute.
ARTICLE XV - QUIET ENJOYMENT
Section 15.01 COVENANT. Landlord hereby covenants that the Tenant, on
paying the Rent and performing the covenants set forth herein, shall peaceably
and quietly hold and enjoy throughout the Term the Premises and such rights as
the Tenant may hold hereunder with respect to the remainder of the Property.
-xxiii-
<PAGE>
ARTICLE XVI - NOTICES
Section 16.01 NOTICES. Any notice, demand or other communication to be
provided hereunder to a party hereto shall be (a) in writing, (b) deemed to have
been given (i) three (3) days after being sent in the United States mails,
postage prepaid, (ii) one day after being sent by overnight courier, or (iii)
immediately upon its actual delivery, and (c) addressed to the Premises, care of
the President of Tenant, if directed to the Tenant, with a copy to Tom
Garretson, Esq., Triplett, Woolf & Garretson, LLP, 151 N. Main, Suite 800,
Wichita, Kansas 67202-1409, or addressed to c/o LaSalle Advisors Limited
Partnership, 100 E. Pratt Street, Suite 2030, Baltimore, Maryland 21202, Attn:
Asset Manager - _______________________, if directed to the Landlord.
ARTICLE XVII - GENERAL
Section 17.01 ENTIRE AGREEMENT. This Lease represents the entire
agreement between the parties hereto as to the subject matter hereof and
supersedes all prior written or oral negotiations, representations, warranties,
statements or agreements between the parties hereto as to the same.
Section 17.02 AMENDMENT. This Lease may be amended by and only by a
written instrument executed and delivered by each party hereto.
Section 17.03 APPLICABLE LAW. This Lease shall be given effect and
construed by application of the law of the state in which the Property is
located.
Section 17.04 WAIVER. Neither the Landlord nor the Tenant shall be deemed
to have waived the exercise of any right which it holds hereunder unless such
waiver is made expressly and in writing, and no delay or omission by the
Landlord in exercising any such right shall be deemed to be a waiver of its
future exercise. No such waiver as to any instance involving the exercise of
any such right shall be deemed a waiver as to any other such instance or any
other such right. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Rent stipulated in the Lease shall be deemed to be other
than on account of the earliest stipulated Rent, nor shall any endorsement of
any check be an acknowledge and satisfaction, etc.
Section 17.05 TIME OF ESSENCE. Time shall be of the essence of this
Lease.
Section 17.06 HEADINGS. The headings of the articles, subsections,
paragraphs and subparagraphs hereof are provided herein only for convenience of
reference and shall not be considered in construing their contents.
Section 17.07 SEVERABILITY. No determination by any court, governmental
body or otherwise that any provision of this lease or any amendment hereof is
invalid or unenforceable in any instance shall affect the validity or
enforceability of any other such provision or such provision in any circumstance
not controlled by such determination. Each such provision shall be valid and
-xxiv-
<PAGE>
enforceable to the fullest extent allowed by, and shall be construed wherever
possible as being consistent with, applicable law.
Section 17.08 DRAFTING. This Lease has been negotiated and prepared by
both parties and shall not be construed more strictly against one party as the
draftsperson thereof.
Section 17.09 SUCCESSORS AND ASSIGNS. This Lease shall be fully binding
upon the parties hereto and each of their respective successors and assigns.
Whenever two or more parties constitute the Tenant, all such parties shall be
jointly and severally liable for performing the Tenant's obligations hereunder.
Section 17.10 COMMISSIONS. Each party hereto hereby represents and
warrants to the other that in connection with the leasing of the Premises
hereunder, the party so representing and warranting has not dealt with any real
estate broker, agent or finder, except for Cushman & Wakefield (the "Broker").
Each party hereto shall indemnify the other against any inaccuracy in such
party's representation. Landlord hereby agrees that it shall pay a commission
to the Broker according to a separate agreement. The parties acknowledge and
agree that the Broker shall be a third party beneficiary of the foregoing
covenants.
Section 17.11 RECORDATION. This Lease may not be recorded among the land
records or among any other public records, without the Landlord's prior written
consent.
Section 17.12 PERPETUITIES. If the rule against perpetuities would
invalidate this Lease or any portion hereof, or would limit the time during
which this Lease shall be effective, due to the potential failure of an interest
in property created herein to vest within a particular time, then
notwithstanding anything to the contrary herein, each such interest in property
must vest, if at all, before the passing of 21 years from the date of this
Lease, or this Lease shall become null and void upon the expiration of such 21
year period and the parties shall have no further liability hereunder.
Section 17.13 LIABILITY LIMITATION. Neither Landlord nor any trustee,
director, officer, employee, representative, asset manager, investment advisor
or agent of Landlord, nor any of their respective successors and assigns, shall
be personally liable in any connection with this Lease, and Tenant shall resort
solely to the Building for the payment to Tenant of any claim or for any
performance by Landlord hereunder.
Section 17.14 NOT AN OFFER. Submission of this Lease to Tenant is not an
offer or agreement by Landlord to reserve the Premises. Landlord shall not
bound by the terms hereof until Tenant and Landlord have executed this Lease.
Section 17.15 AUTHORITY. Landlord and Tenant, as well as any entities
and/or individuals executing this Lease on behalf of Tenant, represent and
warrant to the other that the execution, delivery and performance of this Lease
have been duly authorized by all required corporate,
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<PAGE>
partnership or other action on its behalf, and this Lease constitutes the
valid and binding obligation of Landlord and Tenant enforceable against each
party in accordance with its terms.
Section 17.16 EXHIBITS. Each exhibit, addendum or other attachment hereto
is hereby made a part of this Lease having the full force of all other
provisions herein.
Section 17.17 RIGHT OF FIRST REFUSAL. If Landlord receives a bona fide
offer for the lease of all or any portion of the space (the "space") of the
Building which space is on the same floor and contiguous to any space leased by
Tenant by Tenant , Landlord will give Tenant the right of first refusal to lease
the space, at the rent and on the terms and conditions of the offer. The right
of first refusal will be extended by Landlord giving Tenant written notice of
the particular offer received by Landlord, together with a summary of the offer,
requiring Tenant to accept the offer and to sign an appropriate amendment to
this Lease subjecting the space to this Lease at the rent and for the term set
forth in the offer, within 30 days after the mailing of such notice. If the
Lease with Tenant is not signed within the 30-day period, Landlord will have the
right to accept the offer free of the rights of Tenant under this Section.
Tenant's right of first refusal to Lease the space will continue throughout the
Term and the Renewal Period with respect to any space available for lease from
time to time. Any space leased by Tenant will be adjusted to reflect the rent
provided to be paid in accordance with the offer. Tenant agrees to execute
amendments to this Lease to reflect additions to the Premises resulting from the
exercise of the right of first refusal. Tenant's lease of any space pursuant to
this right of first refusal will be on all the terms and conditions set forth in
this Lease except as to rent and term, which will be that set forth in the
offer. Landlord is under no obligation to offer for lease all or any portion of
the space to Tenant or any other person. Notwithstanding the foregoing, the
rights of Tenant contained in this Section are expressly subordinate to the
existing rights of current tenants at the Building, including but not limited to
renewal and expansion rights, and to Landlord's right to enter into renewals or
expansion agreements with existing tenants at the Building.
Section 17.18 SIGNAGE. Landlord will provide Tenant with Building
standard signage for the Premises and highlighted signage on the Building
directory. In addition, Landlord will support Tenant's request for monument
signage, the design of which has previously been disclosed to Landlord, which is
subject to government, tenant, and association restrictions, provided that such
"support" will not be deemed to require Landlord to incur any unnecessary or
unreasonable expenditures of time or money.
Section 17.20. RADON DISCLOSURE. Radon is a naturally occurring
radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon testing
may be obtained from your county public health unit.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
-xxvi-
<PAGE>
IN WITNESS WHEREOF, each party hereto has executed this Lease under seal on
the day and year written first above.
LANDLORD:
HEATHROW OFFICE BUILDING
CORPORATION
By: LaSalle Advisors Limited Partnership
Authorized Agent
/s/ Patricia C. Thompson By: /s/ David L. Reahl
- ------------------------ -------------------------------------
Witness Name: David L. Reahl
-------------------------------
Title: Vice President
-------------------------------
/s/ Patricia C. Thompson By: /s/ George W. Duke
- ------------------------ -------------------------------------
Witness Name: George W. Duke
-------------------------------
Title: Principal
-------------------------------
TENANT:
BRITE VOICE SYSTEMS, INC.
/s/ Richard Solick By: /s/ David S. Gergacz
- ------------------------ -------------------------------------
Witness Name: David S. Gergacz
-------------------------------
Title: CEO
-------------------------------
-xxvii-
<PAGE>
EXHIBIT A
[FLOOR PLANS]
-xxviii-
<PAGE>
EXHIBIT B
SPACE PLAN OF THE PREMISES
To be Provided.
-xxix-
<PAGE>
EXHIBIT C
RULES AND REGULATIONS
1. Neither the whole nor any part of the sidewalks, plaza areas,
entrances, passages, courts, elevators, vestibules, stairways, corridors or
halls of the Building shall be obstructed or encumbered by any tenant or used
for any purpose other than ingress and egress to and from the premises of such
tenant.
2. No awning, canopy, sign or other projection shall be attached to the
outside walls or windows of the Building without Landlord's prior written
consent. No curtain, blind, shade, or screen (other than those furnished by
Landlord as building standard) shall be attached to, hung in or used in
connection with any window or door of the premises of any tenant.
3. No tenant shall unreasonably mark, paint, drill into, or in any way
deface any part of the Building or its premises. No unreasonable boring,
cutting, or stringing of wires shall be permitted.
4. No tenant shall make, or permit to be made, any unseemly or disturbing
noises (whether by the use of any musical instrument, radio, television or other
audio device) or allow any unsavory odors to emanate from its space, nor shall
any tenant annoy, disturb or interfere with other tenants or occupants of the
Building or neighboring buildings.
5. No change shall be made in door locks without Landlord's prior written
consent. Each tenant must upon the termination of its tenancy restore to
Landlord all keys to offices and toilet rooms either furnished to, or otherwise
procured by, such tenant. In the event of the loss of any keys during the Term,
Tenant shall pay Landlord the reasonable cost of replacement keys.
6. Landlord reserves the right to control and operate the public portions
of the Building and the public facilities, as well as facilities furnished for
the common use of the tenants, in such manner as it deems best for the benefit
of the tenants generally, including, without limitation, the right to exclude
from the Building, except during the hours the Building is open to the public,
all persons who do not present suitable identification satisfactory to Landlord.
7. Each tenant, before closing and leaving its premises at any time,
shall see that all entrance doors are locked and that all electrical appliances
are turned off. Suite and entrance doors shall remain closed at all times.
8. No premises shall be used, or permitted to be used, for lodging or
sleeping or for any immoral or illegal purpose.
9. Canvassing, soliciting and peddling in the Building are prohibited.
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<PAGE>
10. There shall not be used in the Building by any tenant or their agents
or contractors, in the delivery or receipt of merchandise, freight or other
matter, any hand trucks or other means of conveyance, except those equipped with
rubber tires, rubber side guards, and such other safeguards as Landlord may
require.
11. No animals of any kind shall be brought into or kept about the
Building by any tenant.
12. No tenant shall place, or permit to be placed, on any part of the
floor or floors of its premises a load exceeding the floor load per square foot
which such floor was designed to carry and which is allowed by law.
13. No vending machines shall be permitted to be placed or installed in
any part of the Building or premises by any tenant without the prior written
consent of Landlord. Landlord reserves the right to place or install vending
machines in any of the common areas of the Building.
14. No plumbing or electrical fixtures shall be installed by any tenant
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld.
15. Bicycles, motorcycles or any other type of vehicle shall not be
brought into the lobby or elevators of the Building or into the premises of any
tenant.
16. Tenant will refer all contractors, contractor's representatives and
installation technicians, rendering any services on or to the premises for
tenant, to Landlord for Landlord's approval and supervision before performance
of any service. This provision shall apply to all work performed in the
Building, including installation of telephones, telegraph equipment, electrical
devices and attachments and any installation of any nature affecting floors,
walls, woodwork, trim, windows, ceilings, equipment or any other physical
portion of the Building. Such approval, if given, shall in no way make Landlord
a party to any contract between tenant and any such contractor, and Landlord
shall have no liability therefor.
17. No trash or other objects shall be placed in the public corridors or
sidewalks of the Building.
18. Landlord does not clean or maintain suite finishes which are
non-standard, such as kitchens, bathrooms, wallpaper, special lights, etc.
19. Landlord reserves the right, at any time and from time to time, to
rescind, alter, or waive, in whole or in part, or to add to any of these Rules
and Regulations when it is deemed necessary, desirable or proper, in Landlord's
judgment, for its best interest or for the best interests of all tenants.
20. Violations of these Rules and Regulations, or any amendments thereof
or additions thereto, constitute a default of this Lease.
-xxxi-
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FORM
10-Q FOR THE THREE MONTHS ENDED MARCH 31, 1997 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 6,426
<SECURITIES> 0
<RECEIVABLES> 38,335
<ALLOWANCES> 490
<INVENTORY> 14,564
<CURRENT-ASSETS> 61,418
<PP&E> 27,777
<DEPRECIATION> 13,140
<TOTAL-ASSETS> 79,233
<CURRENT-LIABILITIES> 24,791
<BONDS> 0
0
0
<COMMON> 38,419
<OTHER-SE> 16,023
<TOTAL-LIABILITY-AND-EQUITY> 79,233
<SALES> 19,106
<TOTAL-REVENUES> 30,990
<CGS> 8,693
<TOTAL-COSTS> 28,985
<OTHER-EXPENSES> (76)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 2,081
<INCOME-TAX> 790
<INCOME-CONTINUING> 1,291
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,291
<EPS-PRIMARY> 0.11
<EPS-DILUTED> 0
</TABLE>
