<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1998
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: 001-13211
INFORMATION MANAGEMENT ASSOCIATES, INC.
(Exact name of registrant as specified in its charter)
Connecticut 06-1289928
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
One Corporate Drive, Suite 414
Shelton, Connecticut 06484
(203) 925-6800
(Address and telephone number of principal executive offices)
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
--- --
The number of shares of the Registrant's Common Stock, no par value, outstanding
on November 9, 1998 was 9,676,171.
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INFORMATION MANAGEMENT ASSOCIATES, INC.
FORM 10-Q
TABLE OF CONTENTS
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS............................................ 1
Condensed Consolidated Balance Sheets as
of September 30, 1998 and December 31, 1997..................... 1
Condensed Consolidated Statements of Operations
for the Three and Nine Months Ended September 30,
1998 and 1997................................................... 2
Condensed Consolidated Statements of Cash Flows for
the Nine Months Ended September 30, 1998 and 1997............... 3
Notes to Condensed Consolidated Financial Statements............ 4
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS....................................... 6
ITEM 3: QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK...... 27
PART II: OTHER INFORMATION............................................... 27
ITEM 1: LEGAL PROCEEDINGS............................................... 27
ITEM 2: CHANGES IN SECURITIES AND USE OF PROCEEDS....................... 28
ITEM 5: OTHER INFORMATION............................................... 28
ITEM 6: EXHIBITS AND REPORTS ON FORM 8-K................................ 29
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
INFORMATION MANAGEMENT ASSOCIATES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
<TABLE>
<CAPTION>
September 30, December 31,
1998 1997
(Unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents......................................... $ 13,798 $ 24,271
Accounts receivable, net.......................................... 21,203 14,815
Other current assets.............................................. 3,092 1,420
-------- --------
Total current assets............................................ 38,093 40,506
Equipment, net...................................................... 3,021 2,279
Minority equity investment ......................................... 1,715 -
Other assets, net................................................... 2,511 1,137
-------- --------
$ 45,340 $ 43,922
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Current maturities of capital lease obligations................... 131 232
Accounts payable and accrued liabilities.......................... 8,761 4,375
Deferred revenues................................................. 2,965 1,686
-------- --------
Total current liabilities....................................... 11,857 6,293
-------- --------
Other long-term liabilities......................................... 502 599
-------- --------
Shareholders' equity:
Common stock, no par value; 9,676,171 shares outstanding
at September 30, 1998 and 9,236,037 shares outstanding
at December 31, 1997................................................ 54,586 51,102
Shares to be issued in connection with acquisition.................. 564 -
Cumulative translation adjustment................................... 91 (101)
Accumulated deficit................................................. (22,260) (13,971)
-------- --------
Total shareholders' equity...................................... 32,981 37,030
-------- --------
$ 45,340 $ 43,922
======== ========
</TABLE>
The accompanying notes are an integral part of these
condensed consolidated financial statements
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INFORMATION MANAGEMENT ASSOCIATES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1998 1997 1998 1997
<S> <C> <C> <C> <C>
Revenues:
License Fees......................... $ 8,706 $4,506 $21,429 $12,985
Service and maintenance.............. 7,098 4,784 17,615 12,459
------- ------ ------- -------
Total revenues..................... 15,804 9,290 39,044 25,444
------- ------ ------- -------
Cost of revenues:
Cost of license fees................. 105 68 316 209
Cost of services and maintenance..... 4,303 2,532 10,865 6,791
------- ------ ------- -------
Total cost of revenues............. 4,408 2,600 11,181 7,000
------- ------ ------- -------
Gross profit........................... 11,396 6,690 27,863 18,444
------- ------ ------- -------
Operating expenses:
Sales and marketing.................. 5,807 3,169 14,729 8,859
Product development.................. 2,167 1,552 5,879 4,648
General and administrative........... 3,216 1,223 6,166 3,538
Acquired product development costs .. - - 7,658 -
One time settlement charge........... 2,163 - 2,163 -
------- ------ ------- -------
Total operating expenses........... 13,353 5,944 36,595 17,045
------- ------ ------- -------
Operating income (loss)................ (1,957) 746 (8,732) 1,399
Other income (expense)................. 179 206 716 (261)
------- ------ ------- -------
Income (loss) before provision for
income taxes........................ (1,778) 952 (8,016) 1,138
Provision for income taxes............. 119 57 273 159
------- ------ ------- -------
Net income (loss)...................... (1,897) 895 (8,289) 979
Accretion of preferred stock dividends. - (66) - (454)
------- ------ ------- -------
Income (loss) applicable to common
shareholders........................ $(1,897) $ 829 $(8,289) $ 525
======= ====== ======= =======
Basic net income (loss) per share...... (.20) .11 (.87) .10
======= ====== ======= =======
Shares used in computing basic net
income (loss) per share............. 9,676 7,607 9,558 5,410
======= ====== ======= =======
Diluted net income (loss) per share.... (.20) .10 (.87) .09
======= ====== ======= =======
Shares used in computing diluted
earnings per share.................. 9,676 7,983 9,558 5,750
======= ====== ======= =======
</TABLE>
The accompanying notes are an integral part of these
condensed consolidated financial statements
2
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INFORMATION MANAGEMENT ASSOCIATES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(In thousands)
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
1998 1997
<S> <C> <C>
Cash Flows from Operating Activities:
Net income (loss)................................................. $ (8,289) $ 979
Adjustments to reconcile net income (loss) to net cash used in
operating activities:
Depreciation and amortization.................................. 1,235 1,070
Charge for acquired product development cost................... 7,658 -
Changes in operating assets and liabilities:
Accounts receivable, net....................................... (5,691) (2,160)
Other current assets........................................... (1,499) (1,242)
Notes receivable from officers................................. - 570
Other assets, net.............................................. 1,093 87
Accounts payable and accrued liabilities....................... 432 (1,500)
Deferred revenues.............................................. (968) 109
Other long-term liabilities.................................... (56) (49)
-------- -------
Net cash used in operations................................ (6,085) (2,136)
Cash Flows from Investing Activities:
Acquisition of equipment.......................................... (1,752) (1,078)
Cash paid in connection with acquisitions and related deal costs.. (1,632) -
Minority equity investment........................................ (1,715) -
-------- -------
Net cash used in investing activities...................... (5,099) 1,078
Cash Flows from Financing Activities:
Proceeds from initial public offering, net of issuance costs...... - 32,411
Repayment of bank term loan....................................... - (2,500)
Net proceeds from (repayment of) bank line of credit.............. - (4,860)
Repayment of subordinated note payable to stockholder............. - (252)
Proceeds from exercise of stock option............................ 665 -
Repayment of capital lease obligations............................ (148) (205)
-------- -------
Net cash provided by financing activities.................. 517 24,594
-------- -------
Effect of exchange rate changes..................................... 194 (144)
-------- -------
Net Increase (Decrease) in Cash and Cash Equivalents................ (10,473) 21,236
Cash and Cash Equivalents, beginning of period...................... 24,271 3,073
-------- -------
Cash and Cash Equivalents, end of period............................ $ 13,798 $24,309
======== =======
</TABLE>
The accompanying notes are an integral part of these
condensed consolidated financial statements
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INFORMATION MANAGEMENT ASSOCIATES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. Basis of Presentation.
The accompanying condensed consolidated financial statements have been
prepared by Information Management Associates, Inc. and its wholly owned
subsidiaries (collectively, the "Company"), without audit, pursuant to the rules
and regulations of the Securities and Exchange Commission (the "Commission").
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to such rules and regulations. However,
the Company believes that the disclosures are adequate to make the information
presented not misleading. These condensed consolidated financial statements and
the notes thereto should be read in conjunction with the consolidated financial
statements and notes thereto included in the Company's Form 10-K for the year
ended December 31, 1997.
The unaudited information has been prepared on the same basis as the annual
financial statements, and in the opinion of the Company's management, reflects
all normal recurring adjustments necessary for a fair presentation of the
information for the periods presented. Operating results for any quarter are not
necessarily indicative of the results for any future periods.
2. Business Acquisitions and Investment
On March 30, 1998, the Company acquired substantially all of the net assets
of Marketing Information Systems, Inc. ("MIS") and Telemar Software
International, LLC ("TSI") ("the Acquisitions"), each of which markets
proprietary call center software focused on the IBM AS/400 user market.
The final as adjusted aggregate purchase price of $8.6 million consisted of
$1.3 million of cash, 254,841 shares of common stock valued at $3.4 million,
$3.5 million of net assumed liabilities and $385,000 of transaction costs. Of
the 254,841 shares, 42,508 shares (valued at $564,000) have been placed in
escrow and will be released from escrow no later than March 30, 1999, subject to
the satisfactory collection of accounts receivable and the absence of any
indemnification claims. The value of the common stock was determined based on
the average trading price of the Company's common stock for the two days prior
to, the day of, and the two days after, the date that the terms of the
Acquisitions were announced.
The Acquisitions have been accounted for under the purchase method of
accounting and the aggregate purchase price was allocated to the acquired assets
and assumed liabilities based on their estimated value. Of the aggregate
purchase price, $7.7 million was allocated to acquired product development costs
and charged to operations at the date of acquisition, $719,000 was allocated to
purchased software and will be amortized over three years and $250,000 was
allocated to goodwill and will be amortized over seven years.
4
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On August 11, 1998 the Company acquired 19.8% of the common stock of Mitsucon
Technologia S/A., a Brazilian software and services company that acts as a
distributor for the Company, for a purchase price of approximately $1.7 million
in cash, including transaction costs.
3. Earnings (Loss) Per Share.
The Company has adopted the provisions of Statement of Financial Accounting
No. 128, Earnings Per Share (SFAS 128) and the Securities and Exchange
Commission Staff Accounting Bulletin 98 (SAB 98), effective December 31, 1997.
SFAS 128 established new standards for computing and presenting income (loss)
per share. Under SFAS 128, income (loss) per share is computed both under the
basic and diluted methods. Basic income (loss) per share is computed by dividing
income (loss) available to common shareholders by the weighted average number of
common shares outstanding; diluted income (loss) per share is computed by giving
effect to all dilutive common share equivalents that were outstanding during the
period. Dilutive common share equivalents include stock options, warrants and
convertible preferred stock. SAB 98 eliminates the requirement to include in
income (loss) per share the dilutive effect of certain stock options granted
during the twelve months preceding an initial public offering, calculated using
the treasury stock method and the initial public offering price.
The calculation of diluted income (loss) per share for the three and nine
months ended September 30, 1998 does not include stock options as the effect on
diluted income (loss) per share would have been antidilutive. The calculation of
diluted income (loss) per share for the three and nine months ended September
30, 1997 does not include the conversion of Series A and Series B preferred
stock or the conversion of the redeemable common stock warrants as the effect on
diluted income (loss) per share would have been antidilutive.
The calculations of basic and diluted income (loss) per share are as follows
(in thousands except per share amounts):
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1998 1997 1998 1997
(unaudited) (unaudited) (unaudited) (unaudited)
<S> <C> <C> <C> <C>
Basic/Diluted income (loss) per
share:.......................................
Net income (loss) applicable
to common shareholders..................... (1,897) 829 (8,289) 525
====== ===== ====== =====
Basic net income (loss) per share............ (.20) .11 (.87) .10
====== ===== ====== =====
Basic weighted average shares outstanding.... 9,676 7,607 9,558 5,410
====== ===== ====== =====
Diluted net income (loss) per share.......... (.20) .10 (.87) .09
====== ===== ====== =====
Basic weighted average shares outstanding.... 9,676 7,607 9,558 5,410
Weighted average shares resulting
from exercise of options, calculated
by treasury stock method..................... -- 376 -- 340
------ ----- ------ -----
Diluted weighted average shares outstanding.. 9,676 7,983 9,558 5,750
====== ===== ====== =====
</TABLE>
4. Revenue Recognition
As of January 1, 1998, the Company adopted Statement of Position 97-2,
Software Revenue Recognition (SOP 97-2), which was effective for transactions
that the Company entered into after December 31, 1997. The adoption of SOP 97-2
did not have a material adverse affect on the revenues or earnings of the
Company for the three and nine months ended September 30, 1998.
5
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5. Comprehensive Income
As of January 1, 1998, the Company adopted Statement of Financial Accounting
Standards No. 130, Reporting Comprehensive Income (SFAS 130). SFAS 130
establishes new rules for the reporting and display of comprehensive income and
its components. Comprehensive income is a more inclusive financial reporting
methodology that includes disclosure of certain financial information that
historically has not been recognized in the calculation of net income. For the
three and nine months ended September 30, 1998, there was no material difference
between reported net loss and comprehensive net loss.
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Overview
The Company develops, markets and supports customer interaction software
designed to increase the productivity and revenue-generating capabilities of
mid-size to large-scale telephone call centers. The Company's EDGE TeleBusiness
software ("EDGE") is a suite of applications and tools that enable businesses to
automate telebusiness activities (telemarketing, telesales, account management,
customer service and customer support) on an enterprise-wide basis. The Company
complements its EDGE products by offering its clients professional consulting,
technical support and maintenance services.
The following Management's Discussion and Analysis of Financial Condition and
Results of Operations should be read in conjunction with the Condensed
Consolidated Financial Statements and the Notes thereto included elsewhere in
this Form 10-Q. Statements in the following discussion which express "belief",
"anticipation" or "expectation", as well as other statements which are not
historical fact, and statements as to product compatibility, design, features,
functionality and performance insofar as they may apply prospectively, are
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995 and the
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Company's actual results could differ materially from those expressed in these
forward-looking statements as a result of certain factors, including those set
forth under "Factors That May Affect Future Results" and elsewhere in this Form
10-Q.
RESULTS OF OPERATIONS
The following table sets forth the percentage of total revenues for certain
items in the Company's Consolidated Statement of Operations for the three months
and nine months ended September 30, 1998 and 1997.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1998 1997 1998 1997
(unaudited) (unaudited) (unaudited) (unaudited)
<S> <C> <C> <C> <C>
Revenues:
License fees 55.1% 48.5% 54.9% 51.0%
Services and maintenance............... 44.9% 51.5% 45.1% 49.0%
------ ----- ------ -----
Total revenues....................... 100.0% 100.0% 100.0% 100.0%
Cost of revenues
License fees......................... 0.7% 0.7% 0.8% 0.8%
Service and maintenance.............. 27.2% 27.3% 27.8% 26.7%
------ ----- ------ -----
Total cost of revenues............... 27.9% 28.0% 28.6% 27.5%
------ ----- ------ -----
Gross profit........................... 72.1% 72.0% 71.4% 72.5%
Operating expenses:
Sales and marketing.................. 36.8% 34.1% 37.7% 34.8%
Product development.................. 13.7% 16.7% 15.1% 18.3%
General and administrative........... 20.3% 13.2% 15.8% 13.9%
Acquired product development costs - - 19.6% -
One time settlement charge........... 13.7% - 5.5% -
------ ----- ------ -----
Total operating expenses........... 84.5% 64.0% 93.7% 67.0%
Operating income (loss)................ (12.4)% 8.0% (22.4%) 5.5%
------ ----- ------ -----
Interest income (expense).............. 1.1% 2.2% 1.9% (1.0%)
------ ----- ------ -----
Income (loss) before provision for
income taxes......................... (11.3) 10.2% (20.5) 4.5%
Provision for income taxes............. 0.8% 0.6% 0.7% 0.7%
------ ----- ------ -----
Net income (loss)...................... (12.0)% 9.6% (21.2%) 3.8%
====== ===== ====== =====
</TABLE>
The following table sets forth each component of revenue, the cost of such
revenue expressed as a percentage of such revenue for the periods indicated:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1998 1997 1998 1997
(unaudited) (unaudited) (unaudited) (unaudited)
<S> <C> <C> <C> <C>
Cost of license fees................... 1.2% 1.5% 1.5% 1.6%
Cost of services and maintenance....... 60.6% 52.9% 61.7% 54.5%
</TABLE>
7
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Three Months Ended September 30, 1998 Compared to Three Months Ended September
30, 1997
Revenues
License Fees. License fee revenues consist of revenues from initial licenses
for the Company's software products and license upgrades to existing customers
for additional users or modules. Total license fees increased 93.2% from $4.5
million, or 48.5% of total revenues, in the quarter ended September 30, 1997 to
$8.7 million, or 55.1% of total revenues, in the quarter ended September 30,
1998. The increase in license fees was primarily attributable to an increase in
the average size of initial customer licenses and the number of licenses sold.
The Company believes that the increased number and size of licenses for its EDGE
products has primarily resulted from increased market awareness and acceptance
of the Company's software products resulting from increased corporate marketing
and expansion of the sales force and expansion of Company's network of
international distributors and resellers. The Company also generated license
fees in the third quarter from the products acquired in the Acquisitions, from
which there were no revenues in 1997.
Services and Maintenance. Services and maintenance revenues derive from
professional services associated with the implementation and deployment of the
Company's software products and maintenance fees for ongoing customer support.
Services and maintenance revenues increased 48.4% from $4.8 million, or 51.5% of
total revenues, in the quarter ended September 30, 1997 to $7.1 million, or
44.9% of total revenues, in the quarter ended September 30, 1998. The increase
in services and maintenance was primarily attributable to the significant
increase in software licenses.
Cost of Revenues
Cost of License Fees. Cost of license fees consists primarily of the costs
of media packaging, documentation, third-party software and software production
personnel. Cost of license fees increased 54.4% from $68,000 or 1.5% of the
related license revenues, in the quarter ended September 30, 1997 to $105,000,
or 1.2% of the related license revenues, in the quarter ended September 30,
1998. The increase in the cost of license fees was primarily attributable to an
increase in the amount of third-party products resold by the Company.
Cost of Services and Maintenance. Cost of services and maintenance consists
primarily of salaries, bonuses, benefits and other costs related to the
installation, implementation, training and maintenance support of the Company's
software products. The cost of services and maintenance increased 69.9% from
$2.5 million, or 52.9% of service and maintenance revenues, in the quarter ended
September 30, 1997 to $4.3 million, or 60.6% of service and maintenance
revenues, in the quarter ended September 30, 1998. The increases in the dollar
amount of costs of services and maintenance and the amount of these costs as a
percentage of revenues were primarily attributable to an increase in third party
consulting costs, which are typically billed to the customer on a pass through
basis, and increases in salary, benefits and overhead related to the hiring of
new client services staff. The increase in
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third party consulting costs resulted primarily from the Company's efforts to
work more cooperatively with other vendors, including systems integrators, on
larger software projects. The new hires were necessary to perform increased
service requests from customers.
Operating Expenses
Sales and Marketing. Sales and marketing expenses consist primarily of
commissions, salaries, bonuses and other related expenses for sales and
marketing personnel, as well as marketing, advertising and promotional expenses.
Sales and marketing expenses increased 83.2% from $3.2 million, or 34.1% of
revenues, in the quarter ended September 30, 1997 to $5.8 million, or 36.8% of
revenues, in the quarter ended September 30, 1998. The increase in sales and
marketing expenses was primarily related to the hiring of additional sales and
marketing personnel, increased commissions as a result of substantially higher
license revenues, increased use of outside third party consultants for sales
and marketing efforts and increased marketing activities, including advertising,
trade shows and promotional expenses. The Company plans to continue to expand
its sales and marketing staff over the next twelve months and expects that sales
and marketing expenses will continue to increase as a percentage of revenue
during that time.
Product Development. Product development expenses consist primarily of
salaries, bonuses, other related personnel expenses and consulting fees, as well
as the cost of facilities and equipment. Product development expenses increased
39.6% from $1.6 million, or 16.7% of revenues, in the quarter ended September
30, 1997 to $2.2 million, or 13.7% of revenues, in the quarter ended September
30, 1998. The increase in product development expense in the quarter ended
September 30, 1998 was primarily due to an increase in salaries and benefits
related to the hiring of new software development staff, an increase in third
party consulting expense and continuing development of the in-process
development projects acquired from MIS and TSI. Both new hires and third party
outside consultants are working on new product development.
One Time Settlement Charge. The one time settlement charge reflects the
total cost of the settlement of litigation against the Company by Rockwell
International Corporation, including the payment of $1.75 million to Rockwell
and approximately $413,000 in legal fees, court costs, disbursements and
expenses. This one time settlement charge represented 13.7% of revenues for the
quarter ended September 30, 1998. See Part II, Item 1 of this Form 10-Q for a
discussion of the litigation settlement.
General and Administrative. General and administrative expenses represent the
costs of executive, finance and administrative support personnel, the portion of
occupancy expenses all allocable to administration, unallocated corporate
expenses such as fees for legal and auditing services and bad debt expense.
General and administrative expenses increased 163.0% from $1.2 million, or 13.2%
of revenues, in the quarter ended September 30, 1997 to $3.2 million, or 20.3%
of revenues, in the quarter ended September 30, 1998. The primary reason for the
increase in general and administrative expenses in the quarter ended September
30, 1998 was the increase in bad debt reserves of $1.8 million following a
comprehensive review of accounts receivable. This review took into account the
Company's rapid growth in revenues and corresponding growth in accounts
receivable as well as certain economic uncertainties in markets in which the
Company operates, including South America, Asia Pacific and the teleservices
outsourcing industry.
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Other Income (Expense). Other income (expense) was $206,000 for the quarter
ended September 30, 1997 compared to $179,000 for the quarter ended
September 30, 1998. Other income (expense) consists primarily of interest earned
on short-term investments less interest expense on debt and equipment financing.
Interest income decreased by $25,000 from $207,000 in the quarter ended
September 30, 1997 to $182,000 in the quarter ended September 30, 1998 while
interest expense decreased by $94,000 from $102,000 in the quarter ended
September 30, 1997 to $8,000 in the quarter ended September 30, 1998. Interest
income decreased due to a decline in the amount of short-term investments held
by the Company and interest expense decreased due to the pay off of debt with
proceeds from the Company's initial public offering of common stock ("IPO").
Provision For Income Taxes. Provision for income taxes consists of foreign
and state income and withholding taxes. The provision for income taxes
increased from $57,000 in the quarter ended September 30, 1997 to $119,000 in
quarter ended September 30, 1998. At September 30, 1998, the Company had
approximately $6.8 million of U.S. Federal net operating loss carryforwards, of
which approximately $4.5 million resulted from the exercise of non-qualified
stock options, and approximately $1.3 million of state net operating loss
carryforwards which can be used, subject to certain limitations, to offset
future taxable income, if any. When realized, the tax benefits of the portion
of the net operating losses attributed to the exercise of stock options will be
credited directly to paid in capital. These U.S. Federal net operating loss
carryforwards expire through 2002.
In addition, the Company has United Kingdom net operating loss carryforwards
of approximately $1.3 million, which can be utilized to offset future taxable
income and which have no expiration.
The Company has recorded a full valuation allowance against its deferred tax
assets, including those resulting from net operating loss carryforwards, as a
result of uncertainties regarding the realization of the asset. Such
uncertainties result from cumulative losses in recent years and the lack of a
sufficiently quantifiable backlog given the Company's selling cycle and the
industry in which the Company operates. As the future realization of deferred
tax assets is primarily contingent upon the Company's ability to generate future
taxable income, and given the limited history of generating such taxable income,
the Company does not believe it appropriate to recognize a net deferred tax
asset based on forecasted operating results.
The IPO resulted in a change of ownership, as defined by Federal income tax
laws and regulations. As a result of this change in ownership, the amount of
U.S. Federal net operating loss carryforwards generated prior to the IPO which
can be utilized to offset Federal taxable income has an annual limitation of
approximately $4.7 million.
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Nine Months Ended September 30, 1998 Compared to Nine Months Ended September 30,
1997
Revenues
License Fees. Total license fees increased 65.0% from $13.0 million, or
51.0% of total revenues, for the nine months ended September 30, 1997, to $21.4
million, or 54.9% of total revenues, for the nine months ended September 30,
1998. The increase in license fees was primarily attributable to an increase in
the average size of initial customer licenses and the number of licenses sold.
The Company believes that the increased number and size of licenses for its EDGE
products has primarily resulted from increased market awareness and acceptance
of the Company's software products resulting from increased corporate marketing
and expansion of the sales force and the Company's network of international
distributors and resellers. The Company also generated license fees in the first
nine months of 1998 from the products acquired in the Acquisitions, from which
there were no revenues in 1997.
Services and Maintenance. Services and maintenance revenues increased 41.4%
from $12.5 million, or 49.0% of total revenues, in the nine months ended
September 30, 1997 to $17.6 million or 45.1% of total revenues, for the nine
months ended September 30, 1998. The increase in services and maintenance
revenues was primarily attributable to the significant increase in software
licenses.
Cost of Revenues
Cost of license fees. Cost of license fees increased 51.2%, from $209,000 or
1.6% of the related license revenues, in the nine months ended September 30,
1997 to $316,000 or 1.5% of the related license revenues, for the nine months
ended September 30, 1998. The increase in cost of license fees was primarily
attributable to an increase in the amount of third party products resold by the
Company.
Cost of Services and Maintenance. The cost of services and maintenance
increased 60.0% from $6.8 million, or 54.5% of service and maintenance revenues,
in the nine months ended September 30, 1997 to $10.9 million, or 61.7% of
service and maintenance revenues, for the nine months ended September 30, 1998.
The increases in the dollar amount of costs of services and maintenance and the
amount of these costs as a percentage of revenues were primarily attributable to
an increase in third party consulting costs, which are typically billed to the
customer on a pass through basis and increases in salary, benefits and overhead
related to the hiring of new client services staff. The increase in third party
consulting costs resulted primarily from the Company's efforts to work more
cooperatively with other vendors, including systems integrators, on larger
software projects. The new hires were necessary to perform increased service
requests from customers.
Operating Expenses
Sales and Marketing. Sales and marketing expenses increased 66.3% from $8.9
million, or 34.8% of revenues, in the nine months ended September 30, 1997 to
$14.7 million, or 37.7% of revenues, for the nine months ended September 30,
1998. The increase in sales and marketing expenses was primarily related to the
hiring of additional sales and marketing personnel, increased commissions as a
result of substantially higher license revenues, an increased use of
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outside third-party consultants for sales and marketing efforts and increased
marketing activities, including advertising, trade shows and promotional
expenses.
Product Development. Product development expenses increased 26.5% from $4.6
million, or 18.3% of revenues, for the nine months ended September 30, 1997 to
$5.9 million, or 15.1% of revenues, for the nine months ended September 30,
1998. The increase in product development expense in the nine months ended
September 30, 1998 was primarily due to an increase in salaries and benefits
related to the hiring of new software development staff and an increase in third
party consulting expense. Both new hires and third party outside consultants are
working on new product development.
One Time Settlement Charge. The one time settlement charge reflected the
total cost of the settlement of litigation against the Company by Rockwell
International Corporation including the payment of $1.75 million to Rockwell and
approximately $413,000 in legal fees, court costs, disbursements and expenses.
This one time settlement charge represented 5.5% of revenues for the nine months
ended September 30, 1998. See Part II Item 1 of this Form 10-Q for discussion of
the litigation settlement.
General and Administrative. General and administrative expenses increased
74.3% from $3.5 million, or 13.9% of revenues, for the nine months ended
September 30, 1997 to $6.2 million, or 15.8% of revenues, for the nine months
ended September 30, 1998. The primary reason for the increase in general and
administrative expenses for the nine months ended September 30, 1998 was the
increase in bad debt reserves by $1.8 million in the third quarter following a
comprehensive review of accounts receivable. This review took into account the
Company's rapid growth in revenues and corresponding growth in accounts
receivable as well as certain economic uncertainties in markets in which the
Company operates including South America, Asia Pacific and the teleservices
outsourcing industry.
Acquired Product Development Costs. Acquired product development costs
resulted from the March 30, 1998 acquisitions of MIS and TSI. There was no
similar acquisition activity for the nine months ended September 30, 1997. In
connection with the acquisitions of MIS and TSI, the Company allocated $7.7
million of the purchase price to incomplete research and development ("R&D")
projects. This allocation represented the estimated fair value based on risk-
adjusted cash flows related to the incomplete products. At the acquisition date,
the development of these projects had not yet reached technological feasibility
and the R&D in progress had no alternative future uses. Accordingly, these costs
were expensed as of the acquisition date.
The Company used an independent third-party appraiser to assess and value
the in-process research and development. The values assigned to these assets
were determined by identifying significant research projects for which
technological feasibility had not been established, including development,
engineering and testing activities associated with the creation of SalesPath, a
new product under development by MIS, and new releases of MSM and Telemar, which
were telemarketing products marketed by MIS and TSI, respectively. Valuation of
development efforts in the future was excluded from the R&D appraisal.
The nature of the efforts to develop the acquired in-process technology
into commercially viable products relate to the completion of all planning,
designing, prototyping, and testing activities that are necessary to establish
that the proposed technologies meet their design specifications including
functional, technical, and economic performance requirements.
The value assigned to purchased in-process technology was determined by
estimating the contribution of the purchased in-process technology in developing
commercially viable products, estimating the resulting net cash flows from the
expected product sales of such products, and discounting the net cash flows to
their present value using a risk-adjusted discount rate.
Long-term revenue growth was deemed to be reasonable compared to growth
estimates of guideline companies in the same or similar industries facing
similar market risks. An examination of seven guideline companies indicated
that growth estimates ranged from 29% to 53% with an average long-term growth
estimate of 39%. The estimated revenue growth rates for MIS and TSI used in
determining the values of the in-process technologies were 38% and 44%,
respectively. These growth estimates were considered reasonable taking into
consideration the level of sales of the companies in 1997, $4 million and $2.4
million for MIS and TSI, respectively.
Selling, general and administrative expenses and profitability estimates
were determined based on historical indications, anticipated business changes in
the near term, as well as an analysis of the guideline companies.
The rates utilized to discount the net cash flows to their present value
were based on cost of capital calculations and several studies of investment
rates of return. Due to the nature of the forecast and the risks associated
with the projected growth, profitability and developmental projects, a discount
rate of 30% was appropriate for the business enterprises of both MIS and TSI,
25% for the existing products and technology, and 32.5 to 35% for the in-process
R&D. Because the in-process projects were such an integral part of each business
enterprise, only a moderate increase in the discount rate for the in-process
technology was deemed appropriate.
These discount rates were commensurate with MIS' and TSI's market positions,
the uncertainties in the economic estimates described above, the inherent
uncertainty surrounding the successful development of the purchased in-process
technology, the useful life of such technology, the profitability levels of such
technology, and the uncertainty of technological advances that were unknown at
the time of acquisition.
Selection of an appropriate discount rate for each project was based on
perceived risk related to each individual project taking into consideration the
nature of the R&D effort and the stage of development. The risk of MIS achieving
the revenue from SalesPath was deemed higher than the risk of achieving revenue
from in-process releases of MSM since the MSM in-process releases were based on
an existing product. While SalesPath inherently had a higher technical risk
since it was a completely new platform, this risk was lessened by the market's
move away from an AS/400 based product. Further, at the date of acquisition,
SalesPath was estimated to be greater than 80% complete, which decreased the
risk of not completing the project successfully.
The Company believes that the foregoing assumptions used in the forecasts
were reasonable at the time of the acquisition. No assurance can be given,
however, that the underlying assumptions used to estimate expected project
sales, development costs or profitability, or the events associated with such
projects, will transpire as estimated. For these reasons, actual results may
vary from the projected results.
MIS' and TSI's in-process research and development value is comprised of two
individual on-going projects for each company. Remaining development efforts for
these projects include various phases of design, development and testing.
Completion dates for the projects in progress were anticipated to occur over the
next two years at which dates the Company expected to begin generating the
economic benefits from the technologies. Funding for such projects was expected
to be obtained from internally generated sources.
As of September 30, 1998, development of the new releases of the Telemar
product were approximately on schedule with Telemar 6.1 having been released in
beta form September 1998. Based on results through September 30, 1998, the
Company does not believe that 1998 revenues from the Telemar suite of products
will be materially different from the forecast revenues.
As of September 30, 1998, development of the new version of the MSM product
was approximately on schedule with MSM 400 having been released in September
1998. Based on results through September 30, 1998, the Company anticipates that
1998 revenues from the MSM suite of products will be significantly lower than
had been forecast in the valuation model.
As of September 30, 1998, the Company had decided not to develop SalesPath as
a stand-alone product and instead to focus on development of SalesPath component
of the Company's EDGE suite of products, which will support several hardware
platforms. The EDGE component, to be called EDGE-SalesPath, will incorporate
concept and design elements and certain portions of the software from the
purchased in-process SalesPath technology. The change in strategy for the
product is expected to delay the product introduction by approximately one year,
as EDGE-SalesPath is anticipated to be available by late 1999. No revenues will
be generated from EDGE-SalesPath until after its release although revenues from
SalesPath in 1998 had been forecast in the valuation model.
Research and development expenses allocable to the in-process projects
related to the new releases of Telemar and MSM were not materially different
than forecast. Research and development expenses for EDGE-SalesPath (including
development work on SalesPath as a stand alone product prior to the decision to
proceed with an EDGE version of the product) were also not materially different
than forecast. Based on currently available information, development costs to
complete EDGE-SalesPath are expected to exceed forecast costs to complete Sales
Path by approximately $700,000.
As evidenced by their continued support for these projects, management
believes the Company has a reasonable chance of successfully completing the R&D
programs with the changes described above. However, there is risk associated
with the completion of the projects and there is no assurance that any will meet
with either technological or commercial success.
If these projects are unsuccessful, the sales and profitability of the
Company may be adversely affected in future periods. The failure of any
particular individual project in-process may result in economic losses, but it
is unlikely to materially impact the Company's financial condition or results of
operations. Commercial results will be subject to uncertain market events and
risks, which are beyond the Company's control, such as trends in technology,
government regulations, market size and growth, and product introduction or
other actions by competitors.
Other Income (Expense). Other income (expense) was an expense of $261,000
for the nine months ended September 30, 1997 as compared to income of $716,000
for the nine months ended September 30, 1998. Other income (expense) consists
primarily of interest earned on short term investments less interest expense on
debt and equipment financing. Interest income increased by $625,000 from
$116,000 in the nine months ended September 30, 1997 to $741,000 in the nine
months ended September 30, 1998 while interest expense decreased by $448,000
from $478,000 in the nine months ended September 30, 1997 to $30,000 in the nine
months ended September 30, 1998. Interest income increased due to interest
earned on investments from proceeds of the Company's IPO and interest expense
decreased due to the pay off of debt with proceeds from the IPO.
Provision For Income Taxes. Provision for income taxes consists of foreign
and state income and withholding taxes. The provision for income taxes
increased 70.6% from $159,000 for the nine months ended September 30, 1997 to
$273,000 for the nine months ended September 30, 1998.
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Liquidity and Capital Resources
At September 30, 1998, the Company had $13.8 million in cash and cash
equivalents and $21.2 million in accounts receivable. For the nine months ended
September 30, 1998, the Company used net cash of $6.1 million from operating
activities. The net cash of $6.1 million used in operations resulted primarily
from the net loss of $8.3 million, offset by the $7.7 million non-cash charge
for acquired product development costs related to the acquisitions of MIS and
TSI and depreciation and amortization of $1.2 million, reduced by an increase of
$5.7 million in
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accounts receivable, an increase of $1.5 million in other current assets and a
decrease of $968,000 in deferred revenues offset by a decrease of $1.1 million
in other assets, net, and an increase of $432,000 in accounts payable and
accrued liabilities. The fluctuations in operating assets and liabilities were
primarily due to the timing of orders, collections of accounts receivable and
the payment of accounts payable.
For the nine months ended September 30, 1998, the Company's primary investing
activities consisted of $1.8 million of purchases of computer and office
equipment to support the Company's expanding employee base, $1.7 million related
to a minority equity investment and $1.6 million of cash paid in connection
with the acquisitions of MIS and TSI and related deal costs.
For the nine months ended September 30, 1998, the Company's primary financing
activities consisted of the exercise of employee stock options which provided
cash proceeds of $665,000.
The Company anticipates that its current cash and cash equivalents together
with cash provided by operations will be sufficient to meet the Company's
projected working capital and other cash requirements for the foreseeable
future. The Company's future operating and capital requirements will depend on
numerous factors, including the collection of accounts receivable, the level of
resources the Company devotes to marketing and sales activities and internal
research and development programs, advances in technology, the successful
development and introduction of new products and any acquisitions or strategic
alliances or investments which the Company may consider.
Foreign currency risk. The Company's exposure to foreign currency risks has
been relatively low because of the way the Company conducts its international
business. The primary reason for the low level of exposure to foreign currency
fluctuations is that the Company generally requires payment from its
international customers outside the United Kingdom, Europe and Australia in U.S.
dollars. In the United Kingdom and Europe, the Company generally requires
payment from its international customers in pounds sterling. In addition, the
Company has no debt denominated in any foreign currency although it has entered
into equipment and real estate leases that are payable in local currency. For
the nine months ended September 30, 1998, the Company derived 35% of its
revenues from international operations. Approximately 65% of international
revenues were from transactions denominated in pounds sterling with
substantially all of the remaining percentage denominated in U.S. dollars. Gains
and losses on translation into U.S. dollars of foreign currency are recorded as
a separate component of shareholders' equity and do not affect results of
operations.
Because of the historically low level of currency risks, the Company has not
previously engaged in foreign currency hedging programs. However, as revenues
from international operations have grown, the Company has been monitoring its
foreign exchange exposures to assess risks of fluctuations in foreign currency
exchange rates. As part of our monitoring of currency risks, the Company will
consider using foreign currency option contracts and forward contracts in the
future to hedge a portion of our exposure on anticipated transactions and firm
commitment transactions if we determine that such actions are appropriate and
cost-effective. There can be no assurance that the Company's monitoring of
foreign currency exposures or future hedging activities, if any, will
substantially reduce the impact of fluctuations in currency exchange rates on
its results of operations and financial position.
On January 1, 1999, certain member states of the European Economic Community
will fix their respective currencies to a new currency, the Single European
Currency ("Euro"). On that day the Euro will become a functional legal currency
within these countries. During the three years beginning on January 1, 1999,
business in these countries will be conducted both in the existing national
currency, such as the French Franc or the Deutsche Mark, as well as the Euro.
Companies operating in or conducting business in these countries, will need to
ensure that their financial and other software systems are capable of processing
transactions and properly handling the existing currencies and the Euro.
We are still assessing the impact that the introduction and use of the Euro
will have on our internal systems. Although we will continue to evaluate the
impact of the Euro introduction over time, based on presently available
information we do not presently expect that introduction and use of the Euro
will materially affect the way we conduct our business or materially increase
our exposure to foreign currency risks or result in any material increase in our
costs.
Year 2000 Compliance
The following Year 2000 discussion contains various forward-looking
statements which represent the Company's beliefs or expectations regarding
future events. When used in the Year 2000 discussion, the words "believe",
"expects", "estimates" and other similar expressions are intended to identify
forward-looking statements. Forward-looking statements include, without
limitation, the Company's expectations as to when it and its significant
distributors, customers and suppliers will complete the implementation and
compliance phases of the Year 2000 Plan, as well as its Year 2000 contingency
plans; its estimated costs related to the Year 2000 Plan; and the Company's
belief that its internal systems and equipment will be Year 2000 compliant in a
timely manner. All forward-looking statements involve a number of risks and
uncertainties that could cause the actual results to differ materially from the
projected results. Factors that may cause these differences include, but are
not limited to, the availability of qualified personnel and other information
technology resources; the ability to identify and remediate all date sensitive
lines of code or to replace embedded chips in affected systems or equipment;
unanticipated delays or expenses related to remediation; and the actions of
independent third-parties with respect to Year 2000 problems.
The statements in the following section include "Year 2000 Readiness
Disclosure" within the meaning of the Year 2000 Information and Readiness
Disclosure Act of 1998.
The Year 2000 problem refers to the inability of software to process date
information later than December 31, 1999. Date codes in many software programs
are abbreviated to allow only two digits for the year. Software with date-
sensitive functions that is not Year 2000 compliant may not be able to
distinguish whether "00" means 1900 or 2000. When that happens, some
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software will not work at all and other software will suffer critical
calculation and other processing errors. Hardware and other products with
embedded chips may also experience problems.
The Company believes that its current version of EDGE, Telemar and MSM
products are Year 2000 compliant. In addition, the Company tracks the version of
its products that each of its customers uses. By the end of 1998, the Company
plans to notify any customers that may not be using a Year 2000 compliant
version of the Company's product that Year 2000 compliant versions of those
products are available. The Company believes that all current products will meet
basic functionality requirements, however, because all specific customer
situations and uses cannot be anticipated, IMA may be faced with warranty and
other claims as a result of the Year 2000 transition. The impact of such
customer claims could have a material adverse impact on the Company's results of
operations and financial condition.
Some customers may have written applications using the EDGE product. The
Company, in its consulting capacity, also has written such applications. The
Company believes that most applications written by it are Year 2000 compliant.
The Company does not know, and has no meaningful way of determining, whether
the applications written by customers are Year 2000 compliant.
The Company is in the process of completing a comprehensive evaluation of its
internal systems and equipment that addresses both information technology
systems ("IT") (i.e. business systems and the software development environment)
and non-IT systems, (i.e. elevators, building security and HVAC systems)
including hardware, software and firmware. The Company has begun to upgrade
certain critical systems to meet with Year 2000 requirements. The Company will
be conducting transaction testing in the first half of 1999 to evaluate
compliance of the overall system infrastructure. The Company will consider the
need for remediation plans as it continues to assess the Year 2000 risk. The
Company expects to complete its evaluation by the end of the second quarter of
1999. The Company's inability to remediate non-compliant systems in its
infrastructure could have a material adverse affect on the Company's results of
operations and financial condition.
The costs incurred to date related to upgrading the Company's products to be
Year 2000 compliant were approximately $200,000 and have been funded from
operating cash flows and have not been separately accounted for partly because
the responsibilities and costs were distributed throughout the organization and
represent a small percentage of total operating costs. Expenses associated with
evaluation of the Company's internal systems for Year 2000 problems have been
approximately $100,000. The Company expects to complete an estimate of the
anticipated cost of upgrading internal systems by the end of the first quarter
of 1999. While the Company expects to incur additional expenses to complete
these upgrades, it does not believe the implementation of the Year 2000 programs
discussed above will have a material adverse impact on the Company's financial
condition or results of operations. The Company believes that funds generated
from operations will be sufficient to satisfy costs incurred to date and future
Year 2000 compliance costs.
The Company has initiated the development of a comprehensive Year 2000
contingency plan to address situations that may result if the Company is unable
to achieve Year 2000 readiness of its critical systems. The contingency plan is
expected to be completed during the second quarter of 1999.
The Company also is in the process of conducting a review of its critical
suppliers to determine that the suppliers' operations and the products and
services they provide are Year 2000 compliant. The Company believes the review
of its suppliers will be complete during the first quarter of 1999. The Company
has no practical means to verify the information provided by these independent
third parties and is still pursuing those key distributors and vendors who may
not yet have responded. Based upon this assessment and where practicable, the
Company will attempt to mitigate its risks with respect to any suppliers that
may not meet the requirements, including seeking alternative suppliers. However,
there can be no assurance that the Company will not experience disruptions in
its ability to conduct business because of Year 2000 problems experienced by the
Company's distributors or vendors, such problems remain a possibility and could
have an adverse impact on the Company's results of operations and financial
condition.
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Some commentators have predicted significant litigation regarding Year 2000
compliance issues, and the Company is aware of such lawsuits against other
software vendors. Because of the unprecedented nature of such litigation, it is
uncertain whether, or to what extent, the Company may be affected. However, at
this time the Company believes that the existence of earlier versions of its
products that are not Year 2000 compliant is not likely to have a material
adverse effect on the Company or its operations.
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To the extent that its key distributors or vendors experience problems relative
to achieving Year 2000 compliance, the Company could suffer unanticipated
revenue losses.
In addition, the Company does not currently have meaningful information
concerning the Year 2000 compliance status of its customers. As is the case
with other software companies, if significant numbers of the Company's current
or future customers fail to achieve Year 2000 compliance it could have a
material adverse effect on the Company.
Factors That May Affect Future Results
References in this section to the "Company," "Information Management
Associates, Inc.," "IMA," "we," "us," and "our" refer to Information Management
Associates, Inc.
Statements in this Form 10-Q which express "belief", "anticipation" or
"expectation", as well as other statements which are not historical fact, and
statements as to product compatibility, design, features, functionality and
performance insofar as they may apply prospectively, are forward-looking
statements within the meaning of the Private Securities Litigation Reform Act of
1995 and the Company's actual results could differ materially from those
expressed in these forward-looking statements as a result of numerous factors,
including those set forth below, and elsewhere in this Form 10-Q.
History of Operating Losses; Uncertainty of Future Operating Results. We
incurred significant net operating losses in each of 1992, 1993, 1994, 1995 and
the first nine months of 1998. As of September 30, 1998, we had an accumulated
deficit of $22.3 million. Given our operating history, we cannot predict our
future operating results with any certainty. You should not consider our recent
revenue growth as indicative of future revenue growth or operating results. We
cannot assure you that our business strategies will be successful, nor can we
assure you that we will achieve or sustain profitability on a quarterly or
annual basis.
Fluctuations in Quarterly Performance. Our quarterly operating results
have varied significantly in the past and may continue to do so depending on
several factors, many of which are beyond our control. These factors include,
among others:
. our ability to develop, introduce and market new and enhanced versions
. of our products on a timely basis;
. demand for our products;
. the lengthy sales cycle for full implementation of our products;
. the size, timing and contractual terms of significant orders;
. the timing and significance of product enhancements and new product
announcements by us or our competitors;
. changes in our business strategies;
. the budgeting cycles of our potential customers;
. customer order deferrals in anticipation of enhancements or new
products;
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. changes in the mix of products and services we sell;
. changes in the amount of our revenue attributable to domestic and
international sales;
. changes in foreign currency exchange rates;
. product and price competition;
. cancellations or non-renewals of licenses or maintenance agreements;
investments to develop marketing and distribution channels; and
. changes in the level of our operating expenses.
To achieve our quarterly revenue objectives, we depend upon obtaining orders in
that quarter for delivery in that quarter. The timing of our revenue recognition
is affected by the amount of contracts executed and delivered, whether the
contract contains post delivery obligations and when our customers accept the
product. We derive a significant portion of our revenues in any quarter from
non-recurring, large license fees paid to us by a relatively small number of
customers. We expect this trend to continue for the foreseeable future.
Therefore, if a customer defers, cancels or fails to honor its contractual
obligations, our operating results could be materially adversely affected in a
given quarter. On the other hand, significant sales occurring earlier than
expected may adversely affect subsequent quarters. In addition, we have
experienced and expect to continue to experience stronger demand during the
quarters ending in June and December than during the quarters ending in March
and September. We receive a substantial portion of our orders in the last months
or weeks of any given quarter.
Because of the factors stated above, we are not able to predict our
quarterly revenues and operating results with any significant degree of
accuracy. If revenue levels fall below expectations, the shortfall would likely
materially adversely affect our business, operating results and financial
condition. As a result, we believe that you should not rely on period-to-period
comparisons of our results of operations as meaningful indicators of future
performance. We cannot assure you that we will be able to achieve or sustain
profitability on a quarterly or annual basis. We expect that in some future
quarter or quarters our total revenues or operating results will not meet the
expectations of public market analysts and investors. Our failure to meet
expectations or adverse conditions prevailing or appearing to prevail generally
or with respect to our business will likely materially adversely affect our
Common Stock price.
Ability to Integrate Acquisitions. We completed the acquisitions of
substantially all of the assets of Marketing Information Systems, Inc. ("MIS")
and Telemar Software International, LLC ("TSI") on March 30, 1998 for an
aggregate purchase price of $8.6 million. Each has product lines that focused
on the IBM AS/400 market, a platform to which IMA's flagship product EDGE has
only recently been introduced. Failure to successfully integrate the acquired
product lines, and the employees, distributors, and customers of the acquired
businesses could have a material adverse effect on our business, operating
results and financial condition.
Product Concentration. Although we now receive some revenues from MIS and
TSI products, licensing of EDGE and the provision of professional consulting,
technical support and maintenance services relating to EDGE account for
substantially all of our revenues. We do not expect this to change in the
foreseeable future. Accordingly, factors adversely affecting the pricing of or
demand for EDGE products and services, such as competition or technological
changes, could have a material adverse effect on our business, operating results
and financial
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condition. Our future financial performance will depend, in significant part, on
the continued market acceptance of our EDGE products including its new and
enhanced versions. We cannot assure you that we will continue to successfully
develop and market EDGE.
Lengthy Sales and Implementation Cycles; Post-Delivery Obligations. The
following factors over which we may have little or no control may significantly
delay our sales cycle:
. significant commitment of customer resources for licensing and
implementing our products;
. significant level of education required by prospective customers
regarding the use of our products;
. lengthy customer approval process typically associated with
significant capital expenditures; and
. implementation of our products generally extends for several months
and for larger, more complex implementations, multiple quarters.
We recognize licensing fees upon delivery of the product if:
. we have no significant post-delivery obligations;
. our customer has no acceptance conditions; and
. we believe that we can collect the resulting receivable.
If any of the above conditions do not exist, we will defer the revenue until all
of the conditions are satisfied.
Previously, when we have provided consulting services to implement certain
larger projects, some customers have not honored their obligations by delaying
payments of a portion of license fees until we completed implementation or
disputing the consulting fees charged for implementation. We may experience
delays, cancellations or disputes in the future. If these occur, they could
have a material adverse effect on our business, operating results and financial
condition. They could also cause our quarterly operating results to vary
significantly.
Dependence on Proprietary Technology. Our success and ability to compete
depends in part upon proprietary technology. We rely primarily on a combination
of copyright and trademark laws, trade secrets, nondisclosure agreements and
technical measures to protect our proprietary rights. We typically enter into
confidentiality or license agreements with our employees, distributors, clients
and potential clients and limit access to and distribution of our software,
documentation and other proprietary information. We cannot assure you that
these steps will adequately deter misappropriation or independent third-party
development of our technology. Also, the laws of some foreign countries do not
protect proprietary rights to the same extent as the laws of the United States.
We have placed, and may continue to place, our source code in escrow for
the benefit of a small number of our customers. The escrow agreements permit
these customers to use the source code on a limited, non-exclusive basis if:
(i) we initiate bankruptcy proceedings or bankruptcy proceedings are initiated
against us; (ii) we cease to do business; or (iii) we fail to meet our support
obligations. In addition, we use third-party contractors for selected product
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development projects. The escrow of source code and the use of a third-party
contractor may increase the possibility of misappropriation by third parties.
As the number of products and competitors in our industry segment grows and
the functionality of products in different segments overlaps, we expect that
software product developers increasingly will be subject to infringement claims.
The use of patents to protect software has increased. We believe that our
products and technology do not infringe on any existing proprietary rights.
Nevertheless, we cannot assure you that third parties will not assert successful
infringement claims. The following could have a material adverse effect upon
our business, operating results and financial condition:
. any infringement claim against us, even if unfounded, resulting in
diversion of our time and resources, costly litigation and product
shipment delays;
. any infringement claim that results in the necessity that we enter
into a royalty or licensing agreements which may not be available on
terms favorable to us;
. any infringement claim resolved against us;
. litigation to protect our trade secrets or other intellectual property
rights or to determine the validity and scope of the proprietary
rights of others resulting in substantial costs and diversion of
resources.
Dependence on Indirect Marketing and Distribution Channels; Potential
Conflicts. In addition to our own marketing efforts, we maintain relationships
with consulting and systems integration companies to increase our domestic and
international visibility. In addition to our direct sales force, we distribute
our products domestically and internationally through remarketers and
distributors. We do not maintain exclusive relationships with any of the
consultants, systems integration companies, remarketers or distributors. They
are not under our direct control. They have no minimum purchase obligations and
they may terminate their relationship with us at any time without cause. In
addition, they are free to co-market and distribute potentially competitive
products. Accordingly, we must compete for the focus and sales efforts of these
third party entities. Also, selling through indirect channels may limit our
contacts with our customers, hindering our ability to accurately forecast sales
and revenue, determine contract terms, evaluate customer credit, evaluate
customer satisfaction and recognize emerging customer needs. We cannot assure
you that co-marketers, remarketers and distributors will continue successfully
to distribute or recommend the Company's products. We may not continue to
succeed in increasing the use of these indirect channels profitably. Also, one
or more of these companies may begin to market products in competition with us,
which may adversely affect our business, operating results and financial
condition.
Our strategy of marketing our products directly to end-users and indirectly
through remarketers and distributors may result in conflicts between our direct
sales efforts and third party indirect sales efforts; and conflicts between and
among some of our resellers targeting the same customers. These conflicts could
materially adversely affect our relationships with existing remarketers and
distributors and may adversely affect our ability to attract new remarketers and
distributors.
Need to Expand Marketing and Distribution Channels. As part of our
international strategy, we intend to increase our use of remarketers and
distributors and to expand our existing
20
<PAGE>
co-marketing relationships and establish new relationships with other consulting
and systems integration companies. Also, we seek to expand our international
direct sales force to take advantage of international growth opportunities. Our
ability to achieve revenue growth depends on successful implementation of this
strategy. We have experienced, and continue to experience, difficulty in
recruiting and retaining qualified personnel. We cannot assure you that we will
successfully expand our direct or indirect sales force. Even if we are
successful, we cannot assure you that such sales force expansion will result in
increased revenues. Failure to expand our sales force could materially and
adversely affect our business, operating results and financial condition.
Emerging Markets for Call Center Customer Interaction Software; Dependence
on Increased Use of Products by Existing Customers. The market for call center
customer interaction software is relatively new. It is characterized by:
. ongoing technological developments;
. frequent new product announcements and introductions;
evolving industry standards; and
. changing customer requirements.
Our future financial performance depends in large part on continued growth in
the number of organizations adopting call center customer interaction software
products on an enterprise-wide basis and on the number of applications and
software components developed for such use. We cannot assure you that the call
center customer interaction software market will continue to grow. Failure of
this market to grow, or market growth slower than our current expectations could
materially adversely affect our business, operating results and financial
condition.
Also, some of our larger customers have licensed our software on an
incremental basis and we cannot assure you that these customers will expand
their use of our software on an enterprise-wide basis or license new or enhanced
software products as we introduce them to the market. If our customers do not
deploy our software on an enterprise-wide basis because the software has not met
their expectations or for other reasons, our business, operating results and
financial condition could be materially and adversely affected.
Rapid Technological Change. Any of the following factors which are present
in the call center customer interaction software market could render our
existing products obsolete and unmarketable:
. rapid technological change;
. frequent introductions of new products;
. changes in customer demands; and
. evolving industry standards.
These factors could rapidly diminish our position in existing and future
markets. We expect to make substantial investments from time to time in our
product development and testing although we cannot assure you that we will have
sufficient resources to make the necessary investments.
Our customers have adopted a wide variety of hardware, software, database
and
21
<PAGE>
networking platforms. To gain broad market acceptance, we must continue to
support and maintain our products on a variety of such platforms and develop and
introduce enhancements to our existing products and new products on pace with
technological developments, changing customer requirements and evolving industry
standards. Our future success depends on our ability to address the
increasingly sophisticated needs of our customers. Our success may also depend,
in part, on our ability to introduce products that are compatible with the
Internet, and on the broad acceptance of the Internet as a viable customer
interaction channel. We cannot assure you that the Internet will become a
viable customer interaction channel or that the demand for Internet-related
products and services will increase in the future.
We also cannot assure you that we will be successful in developing and
marketing enhancements to our products that respond to technological
developments, changing customer requirements or evolving industry standards. We
may experience difficulties that could delay or prevent the successful
development, introduction and sale of such enhancements. Our enhancements may
not adequately meet the requirements of the marketplace and achieve any
significant degree of market acceptance. Product enhancement and new product
delays or failure to achieve market acceptance when released could materially
and adversely affect our business, operating results or financial condition. In
addition, the introduction or announcement of new product offerings or
enhancements by us, our competitors or major hardware, systems or software
vendors may cause customers to defer or forego licensing of our products, which
could have a material adverse effect on our business, operating results and
financial condition.
We depend upon the products of other software vendors, including certain
system software vendors, such as Microsoft Corporation, and relational database
software vendors to remain competitive and respond to technological change.
Design defects in such products or unexpected delays in their introduction,
could materially and adversely affect our business, operating results and
financial condition.
Management of Growth. We recently have experienced rapid growth. This
growth could place a significant strain on our management and other resources.
We anticipate that the growth of our company, if any, will require us to
recruit, hire, train and retain a substantial number of new and highly skilled
product development, managerial, finance, sales and marketing and support
personnel. The market for such personnel is intensely competitive and we expect
that such competition will continue for the foreseeable future. We cannot assure
you that we will be able to hire or retain such personnel.
Our ability to compete effectively and to manage future growth, if any,
depends on our ability to continue to implement and improve operational,
financial and management information systems on a timely basis and to expand,
train, motivate and manage our work force. We cannot assure you of the future
adequacy of our personnel, systems, procedures and controls. Inability to
effectively manage growth and the quality of our products could materially and
adversely affect our business, operating results and financial condition.
Competition. The market for telemarketing, telesales and customer service
software is:
. intensely competitive;
. rapidly evolving; and
22
<PAGE>
. highly sensitive to new product introductions or enhancements and
marketing efforts by industry participants.
Our competitors range from internal information systems departments to packaged
software application vendors. We believe that as the United States and
international software markets continue to grow, a number of new vendors will
enter the market and existing competitors and new market entrants will attempt
to develop applications targeting additional markets. Our segment of the
software industry has experienced consolidation as certain of our larger
competitors have recently acquired other smaller competitors. In addition,
competitors have established and may in the future establish cooperative
relationships or alliances that may increase their ability to provide superior
software solutions or services.
Increased competition resulting from new entrants, consolidation of the
call center customer interaction software industry, cooperative relationships or
alliances could result in new or stronger competitors, price reductions, reduced
operating income or loss of market share, any of which could materially
adversely affect our business, operating results or financial condition. Many of
our current and potential competitors have significantly greater financial,
technical, marketing, service, support and other resources. They generate higher
revenues and have greater name recognition. We cannot assure you that our
competitors will not develop products comparable or superior to ours or adapt
more quickly than we do to new technologies, evolving industry trends or
changing client requirements. We cannot assure you that we will compete
effectively against competitors or that competitive pressures will not
materially and adversely affect our business, operating results or financial
condition.
Dependence on Key Personnel. Our business involves the development,
marketing and installation of complex software products and the delivery of
professional services. Our success will depend in large part upon our ability
to attract, retain and motivate highly skilled employees. The market for such
employees is intense and we expect that such competition will continue for the
foreseeable future. We cannot assure you that we will hire or retain such
personnel. Failure to hire and retain sufficient numbers of highly skilled
employees could materially and adversely affect our business, operating results
and financial condition. In addition, the loss of Albert R. Subbloie, Jr., the
President and Chief Executive Officer, or Gary R. Martino, Chairman of the Board
and Chief Financial Officer, or some of our other key personnel could have a
material adverse effect on our business, operating results or financial
condition, including our ability to attract employees and secure and complete
engagements. We maintain key-man life insurance policies with respect to
certain of our executive officers, including Mr. Subbloie and Mr. Martino.
Risk of Product Defects. Software products, particularly new versions,
frequently contain errors, especially when first introduced. We conduct
extensive product testing during product development. Nevertheless, we have at
times delayed commercial release of software until we corrected problems. In
some cases, we have provided enhancements to correct errors in released
software. We could, in the future, lose revenues as a result of software errors
or defects. Despite testing by us and by current and potential customers, future
software or releases after commencement of commercial shipments may include
errors, resulting in
. loss or delay of revenue;
23
<PAGE>
. delay in market acceptance;
. diversion of development resources;
. damage to our reputation; or
increased service and warranty costs.
Any of these results could materially and adversely affect our business,
operating results and financial condition.
Risks Associated with International Operations. International operations
account for a significant portion of our total revenues and we intend to
continue and expand our international sales activity. Continuation and expansion
of international operations will require significant management attention and
financial resources and will require us to establish additional foreign
operations and hire additional personnel. We may not be able to maintain or
increase international market demand for our products and failure to do so could
materially and adversely affect our business, operating results or financial
condition.
International Currency Risks. We currently denominate our international
sales in U.S. dollars with respect to sales outside of the United Kingdom,
Europe and Australia, and generally in pounds sterling with respect to sales in
the United Kingdom and Europe. An increase in the value of the U.S. dollar or
pound sterling relative to other currencies could make our products more
expensive and, therefore, potentially less competitive in foreign markets.
Currently, we have not employed currency hedging strategies to reduce this risk
although we may consider employing hedging strategies in the future based on our
assessment of exposure to fluctuations in foreign currency exchange rates. We
cannot assure you that our assessments of exposure to fluctuations in foreign
currency exchange rates will be accurate or that any hedging strategies we may
use in the future will be effective.
International Operation and Collection Risks. The following risk factors
associated with our international business may have a material adverse effect on
our future international sales and, consequently, on our business, operating
results or financial condition:
. potentially longer payment cycles;
. difficulties in collecting international accounts receivable;
. difficulties in enforcement of contractual obligations and
intellectual property rights;
. potentially adverse tax consequences;
. increased costs associated with maintaining international marketing
efforts;
. increased costs of localizing products for foreign markets;
. tariffs, duties and other trade barriers;
. adverse changes in regulatory requirements;
. possible recessionary economies outside of the United States; and
. political and economic instability.
Dependence on Licensed Technology. We license, and expect to license in
the future, technology from other companies for use in and with our products.
Our inability to license these products or other necessary products for use in
or with our products could have a material adverse effect on our business,
operating results or financial condition. In addition, the effective
implementation of our products may depend in the future upon the successful
operation of licensed products as an integrated part of, or in conjunction with,
our products. Any undetected errors in such licensed products could impair the
functionality of our products or otherwise delay or prevent the implementation
of an installation or the introduction of new products, and injure
24
<PAGE>
our reputation, which could have a material adverse effect on our business,
operating results or financial condition.
Increased Use of Third-Party Development Tools. Our EDGE products include
application development tools produced by third parties used to build and modify
our applications. Third-party application development tools may become more
widely used as a result of technological advances or customer requirements.
Wider use of third-party applications could require us to make greater use of
third-party tools in the future. This increased use would require us to enter
into license arrangements with such third parties resulting in higher royalty
payments, a loss of product differentiation and delays. Such effects or our
inability to enter into commercially reasonable licenses could have a material
adverse effect on our business, operating results or financial condition.
Dependence on Growth of Client/Server Computing Environment. We market our
products to customers:
. committed or committing their call center systems to client/server
computing environments; or
. converting legacy systems, in part or in whole, to a client/server
computing environment.
Our success will depend on further growth in the number of organizations
adopting client/server computing environments. We cannot assure you that the
anticipated client/server computing trends will occur or that we will respond
effectively to the evolving requirements of this market. Failure of the
client/server market to grow, or growth at a rate slower than experienced in the
past, could materially and adversely affect our business, operating results or
financial condition.
Industry Concentration. We derive a substantial portion of our revenues
from customers in the teleservices outsourcing, telecommunications and financial
services industries. We intend to further develop our knowledge of the business
processes and requirements of other industries in order to establish additional
market opportunities. We may not successfully do so. Our failure to increase
our customers among a broader base of varied industries, or a downturn in one or
more of the teleservices outsourcing, telecommunications or financial services
industries could have a material adverse effect on our revenues from that
industry or the collectibility of customer obligations from that industry or
other aspects of our business, operating results or financial condition.
Product Liability. The risk of product liability claims is inherent in the
sale and support of products. Our license agreements with our customers
typically contain provisions designed to limit our exposure to potential product
liability claims. The laws of certain jurisdictions, however, may not enforce
the limitation of liability provisions contained in our license agreements. A
party could bring a successful product liability claim against us, which could
result in a material adverse effect on our business, operating results and
financial condition.
Regulatory Environment. Federal, state and foreign law regulates certain
uses of outbound call processing systems. Our systems can be programmed to
operate in compliance with these laws through the use of appropriate calling
lists and calling campaign time parameters. Compliance with these laws,
however, may limit the potential use of our products. In addition,
25
<PAGE>
future legislation further restricting telephone solicitation practices, if
enacted, could adversely affect us.
Year 2000 Risks. Many computer systems and software products are coded to
accept only two digit entries in the date code field. These date code fields
will need to accept four digit entries to distinguish 21st century dates from
20th century dates. As a result, many companies' software and computer systems
may need to be upgraded or replaced in order to comply with such Year 2000
requirements. Our failure or inability to identify and correct Year 2000
problems in our products, internal information or other systems, software,
hardware or firmware could have a material, adverse effect on our business,
operating results, and financial condition. We are still reviewing the impact
the Year 2000 issue will have on our internal information systems. We plan to
take necessary actions based on the results of such analyses. If costs related
to Year 2000 are material, our business, operating results, and financial
condition could be materially adversely affected.
In certain cases, we have warranted that the use or occurrence of dates on
or after January 1, 2000 will not adversely affect the performance of our
products with respect to four digit date dependent data or the ability to
create, store, process, and output information related to such data. If any of
our licensees experience Year 2000 problems, those licensees could assert claims
for damages. Such claims, whether or not successful, could materially and
adversely affect our business, operating results and financial condition.
In addition, the purchasing patterns of our customers and potential
customers may be affected by Year 2000 issues. Many companies are expending
significant resources to correct their current software systems for Year 2000
compliance. These expenditures may result in reduced funds available to
purchase software products such as those offered by us. This may adversely
affect on our business, operating results, and financial condition.
26
<PAGE>
In addition to the "Factors That May Affect Future Results" mentioned above,
the Company's business entails a variety of additional risks, which are set
forth in the Company's filings with the Securities and Exchange Commission.
ITEM 3: QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not Applicable
PART II: OTHER INFORMATION
ITEM 1: LEGAL PROCEEDINGS
(a) In the Company's Form 10-Q for the quarter ended June 30, 1998, the
Company reported that Rockwell International Corporation, Rockwell
Semiconductor Systems, Inc. and Rockwell Telecommunications, Inc. (collectively,
"Rockwell") had filed a two count complaint against the Company. (Rockwell
International Corporation, et al. v. Information Management Associates, Inc. 97
CH 809). Rockwell's claims related to the Company's provision of a call center
solution to United States Cellular Corporation ("USCC"). Rockwell had obtained
a preliminary injunction preventing the Company from completing USCC's Call
Center Solution or doing other work for USCC. Although the Company had
contested any wrong doing and appealed the preliminary injunction decision, the
Company decided to settle the matter quickly to enable it to resume its
relationship with USCC which included USCC's exercise of its option to license
additional software from the Company during the quarter ended September 30, 1998
for a fee of $1.75 million. Under the terms of the settlement, the litigation
was dismissed and all claims by Rockwell relating to the Company's relationship
with USCC have been released. IMA agreed to pay Rockwell $1.75 million in four
installments over one year.
(b) On August 20, 1998, the Company filed a two count complaint against APAC
Teleservices, Inc. ("APAC") in the United States District Court for the Northern
District of Illinois asserting claims for breach of contract and unjust
enrichment for APAC's failure to pay $255,772 to the Company for professional
services rendered to APAC (Information Management Associates, Inc. v. APAC
Teleservices, Inc., 98C 5162) (the "Complaint" or the "Federal Action"). On
August 21, 1998, the Company filed a demand for arbitration with the American
Arbitration Association in Chicago, Illinois, asserting that APAC breached its
written agreement with the Company by failing to make payment of $575,983 for
software license and maintenance fees (Information Management Associates, Inc.
v. APAC Teleservices, Inc., No. 51 117 0036498) (the "Demand" or the
"Arbitration"). On October 8, 1998, APAC filed its answer to the Complaint,
denying that it owed the monies claimed by the Company. In connection with the
Demand, APAC also filed a counterclaim seeking an unspecified amount of damages
based on allegations that the Company's software and maintenance services were
deficient (hereinafter referred to as the "Counterclaim"). On October 30, 1998,
the Company responded to the Counterclaim, denying the material allegations,
further denying that APAC had suffered damages, and raising several affirmative
defenses. On November 10, 1998, APAC was granted leave to file a counterclaim in
the Federal Action. The Company believes that it will prevail in its claims set
forth in
27
<PAGE>
the Complaint and the Demand. The Company believes that APAC's Counterclaim is
without merit and intends to vigorously oppose the Counterclaim. Nevertheless,
the final outcome of any legal proceeding is subject to a great many variables
and cannot be predicted with any degree of certainty. In the event that the
Counterclaim or any future counterclaim brought in the Federal Action is
ultimately decided in favor of APAC, damages and associated cost could have a
material adverse effect on results of the Company's operations.
ITEM 2: CHANGES IN SECURITIES AND USE OF PROCEEDS
a. Not Applicable.
b. Not Applicable.
c. Not Applicable
d. Use of Proceeds
(1) On July 30, 1997, the Company's Registration Statement on Form S-
1 (the "Registration Statement"), File No. 333-22923, with
respect to its initial public offering of common stock was
declared effective by the Securities and Exchange Commission. The
use of proceeds from the offering was described in the Company's
Form 10-Q for the quarter ended September 30, 1997, the Company's
Form 10-K for the year ended December 31, 1997 the Company's Form
10-Q for the quarter ended March 31, 1998 and the Company's Form
10-Q for the quarter ended June 30, 1998. Except as noted below,
no information has changed with respect to the use of proceeds
from the information set forth in the Company's most recent Form
10-Q.
(2) The Company used the net offering proceeds through September 30,
1998 as follows: (a) approximately $7.4 million for repayment of
indebtedness; (b) approximately $8.7 million for working capital;
(c) approximately $2.2 million for one time settlement charge;
(d) approximately $2.3 million for the acquisition of equipment;
(e) $1.7 million for the acquisition of a minority equity
investment; (f) approximately $1.6 million for the acquisition of
assets of MIS and TSI; and (g) approximately $6.6 million for
temporary investments, primarily in commercial paper.
Each of these amounts is a reasonable estimate of the amount of the
net offering proceeds set forth above so applied. The use of proceeds
does not represent a material change in the use of proceeds described
in the prospectus included in the Registration Statement.
ITEM 5: OTHER INFORMATION
On August 11, 1998 pursuant to a Stock Purchase Agreement by and among
Mitsucon Tecnologia S/A ("Mitsucon"), Mitsucon Comercial Ltda., Mitsucon
Informatica, Ltda., Ernesto Hiroshi Sunago, Mario Minoru Noguchi and Cristina
Antakly Adib dated July 31, 1998, the Company purchased 19.8% of the outstanding
capital stock of Mitsucon, a Brazilian corporation that distributes the
Company's products in the Brazilian market. The purchase price was approximately
$1.6 million in cash. The Company incurred approximately $105,000 in transaction
related expenses.
28
<PAGE>
ITEM 6: EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
27 Financial Data Schedule (Exhibit 27 is submitted as an exhibit only
in the electronic format of this Quarterly Report on Form 10-Q
submitted to the Securities and Exchange Commission).
99 Standard Form Office Lease by and between EOP Operating Limited
Partnership and Information Management Associates, Inc effective as
of September 10, 1998.
(b) Reports on Form 8-K.
Filed on August 17, 1998 announcing an agreement by the Company to
purchase 19.8% of the outstanding capital stock of Mitsucon
Technologia S/A. See Section II, Item 5 of this Form 10-Q
SIGNATURES
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: November 16, 1998 /s/ Albert R. Subbloie, Jr. President, Chief
--------------------------- Executive
Albert R. Subbloie, Jr. Officer and Director
(Principal Executive
Officer)
Dated: November 16, 1998 /s/ Gary R. Martino Chairman of the
--------------------------- Board of Directors,
Gary R. Martino Chief Financial
Officer, Treasurer
and Director
(Principal Financial
Accounting Officer)
29
<PAGE>
EXHIBIT 10.1
101 NORTH WALKER
STANDARD FORM OFFICE LEASE
BETWEEN
EOP OPERATING LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP
("LANDLORD")
AND
INFORMATION MANAGEMENT ASSOCIATES, INC., A CONNECTICUT CORPORATION
("TENANT")
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
I. Basic Lease Information; Definitions................ 1
II. Lease Grant......................................... 4
III. Adjustment of Commencement Date/Possession.......... 4
IV. Rent................................................ 5
V. Use................................................. 10
VI. Security Deposit.................................... 11
VII. Services to be Furnished by Landlord................ 12
VIII. Leasehold Improvements.............................. 13
IX. Graphics............................................ 14
X. Repairs and Alterations............................. 14
XI. Use of Electrical Services by Tenant................ 15
XII. Entry by Landlord................................... 16
XIII. Assignment and Subletting........................... 16
XIV. Liens............................................... 19
XV. Indemnity and Waiver of Claims...................... 19
XVI. Tenant's Insurance................................. 20
XVII. Subrogation......................................... 22
XVIII. Landlord's Insurance................................ 22
XIX. Casualty Damage..................................... 23
XX. Demolition.......................................... 24
XXI. Condemnation........................................ 24
XXII. Events of Default................................... 25
XXIII. Remedies............................................ 26
XXIV. LIMITATION OF LIABILITY............................. 27
XXV. No Waiver........................................... 28
XXVI. Event of Bankruptcy................................. 28
XXVII. Waiver of Jury Trial................................ 29
XXVIII. Relocation.......................................... 29
</TABLE>
<PAGE>
<TABLE>
<S> <C>
XXIX. Holding Over................................................ 30
XXX. Subordination to Mortgages; Estoppel Certificate............ 30
XXXI. Attorneys' Fees............................................. 31
XXXII. Notice...................................................... 31
XXXIII. Landlord's Lien............................................. 31
XXXIV. Excepted Rights............................................. 31
XXXV. Surrender of Promises....................................... 32
XXXVI. Miscellaneous............................................... 32
XXXVII. Entire Agreement............................................ 35
</TABLE>
-ii-
<PAGE>
OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease") is made and entered into as of
the 10th day of September, 1998, by and between EOP OPERATING LIMITED
PARTNERSHIP, a Delaware limited partnership ("Landlord") and INFORMATION
MANAGEMENT ASSOCIATES, INC., a Connecticut corporation ("Tenant").
I. BASIC LEASE INFORMATION; DEFINITIONS.
A. The following are some of the basic lease information and defined
terms used in this Lease.
1. "Additional Base Rental" shall mean Tenant's Pro Rata Share of
Basic Costs and any other sums (exclusive of Base Rental) that
are required to be paid by Tenant to Landlord hereunder, which
sums are deemed to be additional rent under this Lease.
Additional Base Rental and Base Rental are sometimes collectively
referred to herein as "Rent".
2. "Base Rental" shall mean the sum of One Million Four Hundred
Sixty-six Thousand Eight Hundred Fifty and 00/100 Dollars
($1,466,850.00), payable by Tenant to Landlord in eighty four
(84) monthly Installments as follows:
a. Twelve (12) equal installments of Fifteen Thousand Seven
Hundred Sixteen and 25/100 Dollars ($15,716.25), each
payable on or before the first day of each month during the
period beginning January 1, 1999, and ending December 31,
1999.
b. Twelve (12) equal installments of Sixteen Thousand Two
Hundred Ninety-eight and 33/100 Dollars ($16,298.33), each
payable on or before the first day of each month during the
period beginning January 1, 2000, and ending December 31,
2000.
c. Twelve (12) equal Installments of Sixteen Thousand Eight
Hundred Eighty and 42/100 Dollars ($16,880.42), each payable
on or before the first day of each month during the period
beginning January 1, 2001, and ending December 31, 2001.
d. Twelve (12) equal installments of Seventeen Thousand Four
Hundred Sixty-two and 50/100 Dollars ($17,462.50), each
payable on or before the first day of each month during the
period beginning January 1, 2002, and ending December 31,
2002.
e. Twelve (12) equal installments of Eighteen Thousand Forty-
four and 58/100 Dollars ($18,044.58), each payable on or
before the first day of each month during the period
beginning January 1, 2003, and ending December 31, 2003.
f. Twelve (12) equal installments of Eighteen Thousand Six
Hundred Twenty-six and 67/100 Dollars ($18,626.67), each
payable on or before the first day of each month during the
period beginning January 1, 2004, and ending December 31,
2004.
g. Twelve (12) equal installments of Nineteen Thousand Two
Hundred Eight and 75/100 Dollars ($19,208.75), each payable
on or before the first day of each month during the period
beginning January 1, 2005, and ending December 31, 2005.
<PAGE>
3. "Building" shall mean the office building located at 101 North
Walker Drive, City of Chicago, County of Cook, State of Illinois,
commonly known as 101 North Walker.
4. The "Commencement Date", "Lease Term" and "Termination Date"
shall have the meanings set forth in subsection I.A.4.a. below:
a. The "Lease Term" shall mean a period of eighty four (84)
months, commencing on January 1, 1999, (the "Commencement
Date") and, unless sooner terminated as provided herein,
ending on December 31, 2005 (the "Termination Date").
b. INTENTIONALLY OMITTED.
5. "Premises" shall mean the area located on the fifteenth (15th)
floor of the Building, as outlined on Exhibit A attached hereto
and incorporated herein and known as Suite #1550. Landlord and
Tenant hereby stipulate and agree that the "Rentable Area of the
Premises" shall mean 13,970 square feet and the "Rentable Area of
the Building" shall mean 575,294 square feet. If the Premises
being leased to Tenant hereunder include one or more floors
within the Building in their entirety, the definition of Premises
with respect to such full floor(s) shall include all corridors
and restroom facilities located on such floor(s). Notwithstanding
the foregoing, unless specifically provided herein to the
contrary, the Premises shall not include any telephone closets,
electrical closets, janitorial closets, equipment rooms or
similar areas on any full or partial floor that are used by
Landlord for the operation of the Building.
6. "Permitted Use" shall mean general office use.
7. "Security Deposit" shall initially mean the sum of Forty Thousand
and 00/100 Dollars ($300,000.00). Such Security Deposit may be
provided to Landlord in the form of a letter of credit in
accordance with the terms and conditions of Article VI hereof.
Such Security Deposit shall be subject to reduction in accordance
with the terms of Article VI hereof.
8. "Tenant's Pro Rata Share" shall mean Two and four thousand two
hundred eighty-three ten thousandths percent (2.4283%), which is
the quotient (expressed as a percentage), derived by dividing the
Rentable Area of the Premises by the Rentable Area of the
Building.
9. "Guarantor(s)" shall mean any party that agrees in writing to
guarantee the Lease. As of the date hereof there is no Guarantor.
10. "Notice Addresses" shall mean the following addresses for Tenant
and Landlord, respectively:
Tenant:
On and after the Commencement Date, notices shall be sent to
Tenant at the Premises.
2
<PAGE>
With a copy to:
Information Management Associates, Inc.
One Corporate Drive
Suite 414
Shelton, Connecticut 06484
Attention: General Counsel
Prior to the Commencement Date, notices shall be sent to Tenant
at the following address:
Information Management Associates, Inc.
One Corporate Drive
Suite 414
Shelton, Connecticut 06484
Attention: General Counsel
Landlord:
c/o Equity Office Properties Trust
101 N. Walker Drive
Suite 101
Chicago, Illinois 60606
Attention: Property Manager
With a copy to:
EOP Operating Limited Partnership
c/o Equity Office Properties Trust
Two North Riverside Plaza Suite 2200
Chicago, Illinois 60606
Attention: Regional Counsel - Central
Payments of Rent only shall be made payable to the order of:
Equity Office Properties
at the following address:
EOP Operating Limited Partnership
as Agent for 101 N. Walker
Dept. 77-6355
Chicago, Illinois 60678-6355
B. The following are additional definitions of some of the defined
terms used in the Lease.
1. Intentionally Omitted.
2. "Basic Costs" shall mean all costs and expenses paid or
incurred in connection with operating, maintaining,
repairing, managing and owning the Building and the
Property, as further described in Article IV hereof.
3. "Broker" means U.S. Equities Realty, Inc.
4. "Building Standard" shall mean the type, grade, brand,
quality and/or quantity of materials Landlord designates
from time to time to be the minimum quality and/or quantity
to be used in the Building.
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5. "Business Day(s)" shall mean Mondays though Fridays
exclusive of the normal business holidays ("Holidays") of
New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day. Landlord, from time to
time during the Lease Term, shall have the right to
designate additional Holidays, provided that such additional
Holidays are commonly recognized by other office buildings
in the area where the Building is located.
6. "Common Areas" shall mean those areas provided for the
common use or benefit of all tenants generally and/or the
public, such as corridors, elevator foyers, common mail
rooms, restrooms, vending areas, lobby areas (whether at
ground level or otherwise) and other similar facilities.
7. "Landlord Work" shall mean the work, if any, that Landlord
is obligated to perform in the Premises pursuant to the Work
Letter Agreement, if any, attached hereto as Exhibit D. (If
applicable.)
8. "Maximum Rate" shall mean the greatest per annum rate of
interest permitted from time to time under applicable law.
9. "Normal Business Hours" for the Building shall mean 8.00
A.M. to 6:00 P.M. Mondays through Fridays, and 8:00 A.M. to
12:00 noon on Saturdays, exclusive of Holidays.
10. "Prime Rate" shall mean the per annum interest rate publicly
announced by The First National Bank of Chicago or any
successor thereof from time to time (whether or not charged
in each instance) as its prime or base rate in Chicago,
Illinois.
11. "Property" shall mean the Building and the parcel(s) of land
on which it is located and, at Landlord's discretion, the
Building garage, if any, and all other improvements owned by
Landlord and serving the Building and the tenants thereof
and the parcel(s) of land on which they are located.
II. LEASE GRANT.
Subject to and upon the terms herein set forth, Landlord leases to Tenant
and Tenant leases from Landlord the Premises, together with the right, in common
with others, to use the Common Areas.
III. ADJUSTMENT OF COMMENCEMENT DATE/POSSESSION.
A. INTENTIONALLY OMITTED.
B. By taking possession of the Premises, Tenant is deemed to have
accepted the Premises and agreed that the Premises is in good order
and satisfactory condition, with no representation or warranty by
Landlord as to the condition of the Premises or the Building or
suitability thereof for Tenant's use. Tenants acceptance of the
Premises shall be subject to Landlord's obligation to correct portions
of the Landlord Work as set forth on a construction punch list
prepared by Landlord and Tenant in accordance with the terms hereof.
Within fifteen (15) days after the substantial completion of the
Landlord Work for any section of the Premises, Landlord and Tenant
shall together conduct an inspection of such portion of the Premises
and prepare a "punchlist" setting forth any portions of the Landlord
Work that are not in conformity with the Landlord Work as required by
the terms of this Lease. Landlord, as part of the Landlord Work, shall
use good faith efforts to correct all such Items within a reasonable
time following the completion of the punch list. In addition, Landlord
shall be responsible for latent defects in the
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Landlord Work of which Tenant notifies Landlord to the extent that the
correction of such defects is covered under valid and enforceable
warranties given Landlord by contractors or subcontractors performing
the Landlord Work. Landlord, at its option, may pursue such claims
directly or assign any such warranties to Tenant for enforcement. The
contract for the Landlord Work shall contain a one (1) year warranty
on material and labor.
C. INTENTIONALLY OMITTED.
D. If Tenant takes possession of the Premises prior to the Commencement
Date for any reason, such possession shall be subject to all the terms
and conditions of the Lease, except that in lieu of Tenant's
obligation to pay the Base Rental set forth herein, Tenant shall pay
$9,023.00 per month (prorated for any partial month of occupancy), and
Tenant shall not be obligated to pay Additional Base Rental with
respect to the period of time prior to the Commencement Date. Nothing
herein shall be construed as granting Tenant the right to take
possession of the Premises prior to the Commencement Date, whether for
construction, fixturing or any other purpose, without the prior
consent of Landlord.
IV. RENT.
A. During each calendar year, or portion thereof, falling within the
Lease Term, Tenant shall pay to Landlord as Additional Base Rental
hereunder Tenant's Pro Rata Share of Basic Costs (as defined below)
for the applicable calendar year. Prior to the Commencement Date and
prior to January 1 of each calendar year during the Lease Term, or as
soon thereafter as practical, Landlord shall make a good faith
estimate of Basic Costs for the applicable calendar year and Tenant's
Pro Rata Share thereof. On or before the first day of each month
during such calendar year, Tenant shall pay to Landlord, as Additional
Base Rental, a monthly installment equal to one-twelfth of Tenant's
Pro Rata Share of Landlord's estimate of Basic Costs. Landlord shall
have the right from time to time during any such calendar year to
revise the estimate of Basic Costs for such year and provide Tenant
with a revised statement therefor, and thereafter the amount Tenant
shall pay each month shall be based upon such revised estimate.
Landlord agrees not to revise such estimate more then two (2) times
per year. If Landlord does not provide Tenant with an estimate of the
Basic Costs by January 1 of any calendar year, Tenant shall continue
to pay a monthly installment based on the previous year's estimate
until such time as Landlord provides Tenant with an estimate of Basic
Costs for the current year. Upon receipt of such current year's
estimate, an adjustment shall be made for any month during the current
year with respect to which Tenant paid monthly installments of
Additional Base Rental based on the previous year's estimate. Tenant
shall pay to Landlord for any underpayment within thirty (30) days
after demand. Any overpayment shall, at Landlord's option, be refunded
to Tenant or credited against the installment of Additional Base
Rental due for the months immediately following the furnishing of such
estimate. Any amounts paid by Tenant based on any estimate shall be
subject to adjustment pursuant to the immediately following paragraph
when actual Basic Costs are determined for such calendar year.
As soon as is practical following the end of each calendar year during
the Lease Term, Landlord shall furnish to Tenant a statement of
Landlord's actual Basic Costs for the previous calendar year. If the
amount of estimated Basic Costs actually paid by Tenant for the prior
year is in excess of Tenant's actual Pro Rata Share of Basic Costs for
such prior year, then Landlord shall apply such overpayment against
Additional Base Rental due or to become due hereunder, provided if the
Lease Term expires prior to the determination of such overpayment,
Landlord shall refund such overpayment to Tenant after first deducting
the amount of any Rent due hereunder. Likewise, Tenant shall pay to
Landlord, within thirty (30) days after demand, any underpayment with
respect to the prior year, whether or not the Lease has terminated
prior to receipt by Tenant of a statement for such
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underpayment, it being understood that this clause shall survive the
expiration of the Lease.
B. Basic Costs shall mean all costs and expenses paid or incurred in each
calendar year in connection with operating, maintaining, repairing,
managing and owning the Building and the Property, including, but not
limited to, the following:
1. All labor costs for all persons performing services required or
utilized in connection with the operation, repair, replacement
and maintenance of and control of access to the Building and the
Property, including but not limited to amounts incurred for
wages, salaries and other compensation for services, payroll,
social security, unemployment and other similar taxes, workers'
compensation insurance, uniforms, training, disability benefits,
pensions, hospitalization, retirement plans, group insurance or
any other similar or like expenses or benefits.
2. All management fees, the cost of equipping and maintaining a
management office at the Building, accounting services, legal
fees not attributable to leasing and collection activity, and all
other administrative costs relating to the Building and the
Property. If management services are not provided by a third
party, Landlord shall be entitled to a management fee comparable
to that due and payable to third parties provided Landlord or
management companies owned by, or management divisions of,
Landlord perform actual management services of a comparable
nature and type as normally would be performed by third parties.
3. All rental and/or purchase costs of materials, supplies, tools
and equipment used in the operation, repair, replacement and
maintenance and the control of access to the Building and the
Property.
4. All amounts charged to Landlord by contractors and/or suppliers
for services, replacement parts, components, materials, equipment
and supplies furnished in connection with the operation, repair,
maintenance, replacement of and control of access to any part of
the Building, or the Property generally, including the heating,
air conditioning, ventilating, plumbing, electrical, elevator and
other systems and equipment. At Landlord's option, major repair
items may be amortized over a period of up to five (5) years.
Notwithstanding the foregoing, except to the extent set forth in
Subsection IV.B.11. below, it is hereby agreed that any costs in
connection with replacements that would properly be considered to
be capital improvements under generally accepted accounting
principles shall be excluded from Basic Costs.
5. All premiums and deductibles paid by Landlord for fire and
extended coverage insurance, earthquake and extended coverage
insurance, liability and extended coverage insurance, rental loss
insurance, elevator insurance, boiler insurance and other
insurance customarily carried from time to time by landlords of
comparable office buildings or required to be carried by
Landlord's Mortgagee.
6. Charges for water, gas, steam and sewer, but excluding those
charges for which Landlord is otherwise reimbursed by tenants,
and charges for Electrical Costs. For purposes hereof, the term
"Electrical Costs" shall mean: (i) all charges paid by Landlord
for electricity supplied to the Building, Property and Premises,
regardless of whether such charges are characterized as
distribution charges, transmission charges, generation charges,
public good charges, disconnection charges, competitive
transaction charges, stranded cost recoveries or otherwise; (ii)
except to the extent otherwise included in Basic Costs, any costs
incurred in connection with the energy management program for the
Building, Property and
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Premises, including any costs incurred for the replacement of
lights and ballasts and the purchase and installation of sensors
and other energy saving equipment; and (iii) if and to the extent
permitted by law, a reasonable fee for the services provided by
Landlord in connection with the selection of utility companies
and the negotiation and administration of contracts for the
generation of electricity. Notwithstanding the foregoing,
Electrical Costs shall be adjusted as follows: (a) any amounts
received by Landlord as reimbursement for above standard
electrical consumption shall be deducted from Electrical Costs,
(b) the cost of electricity incurred in providing overtime HVAC
to specific tenants shall be deducted from Electrical Costs, it
being agreed that the electrical component of overtime HVAC Costs
shall be calculated as a reasonable percentage of the total HVAC
costs charged to such tenants, and (c) if Tenant is billed
directly for the cost of electricity to the Premises as a
separate charge in addition to Base Rental and Basic Costs, the
cost of electricity to individual tenant spaces in the Building
shall be deducted from Electrical Costs.
7. "Taxes", which for purposes hereof, shall mean: (a) all real
estate taxes and assessments on the Property, the Building or the
Premises, and taxes and assessments levied in substitution or
supplementation in whole or in part of such taxes, (b) all
personal property taxes for the Building's personal property,
including license expenses, (c) all taxes imposed on services of
Landlord's agents and employees related to the Building, (d) all
other taxes, fees or assessments now or hereafter levied by any
governmental authority on the Property, the Building or its
contents or on the operation and use thereof (except as relate to
specific tenants), and (e) all reasonable costs and fees incurred
in connection with seeking reductions in or refunds in Taxes
including, without limitation, any costs incurred by Landlord to
challenge the tax valuation of the Building, but excluding income
taxes. For the purpose of determining real estate taxes and
assessments for any given calendar year, the amount to be
included in Taxes for such year shall be as follows: (1) with
respect to any special assessment that is payable in
installments, Taxes for such year shall include the amount of the
installment (and any interest) due and payable during such year;
and (2) with respect to all other real estate taxes, Taxes for
such year shall, at Landlord's election, include either the
amount accrued, assessed or otherwise imposed for such year or
the amount due and payable for such year, provided that
Landlord's election shall be applied consistently throughout the
Lease Term. If a reduction in Taxes is obtained for any year of
the Lease Term during which Tenant paid its Pro Rata Share of
Basic Costs, then Basic Costs for such year will be retroactively
adjusted and Landlord shall provide Tenant with a credit, if any,
based on such adjustment. Likewise, if a reduction is
subsequently obtained for Taxes for the Base Year (if Tenant's
Pro Rata Share is based upon increases in Basic Costs over a Base
Year), Basic Costs for the Base Year shall be restated and the
Excess for all subsequent years recomputed. Tenant shall pay to
Landlord Tenant's Pro Rata Share of any such increase in the
Excess within thirty (30) days after Tenant's receipt of a
statement therefor from Landlord.
8. All landscape expenses and costs of maintaining, repairing,
resurfacing and striping of the parking areas and garages of the
Property, if any.
9. Cost of all maintenance service agreements, including those for
equipment, alarm service, window cleaning, drapery or venetian
blind cleaning, janitorial services, pest control, uniform
supply, plant maintenance, landscaping, and any parking
equipment.
10. Cost of all other repairs, replacements and general maintenance
of the Property and Building neither specified above nor directly
billed to tenants.
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11. The amortized cost of capital improvements made to the Building
or the Property which are: (a) primarily for the purpose of
reducing operating expense costs or otherwise improving the
operating efficiency of the Property or Building; or (b) required
to comply with any newly enacted laws, rules or regulations of
any governmental authority, or any changes in, or changes in the
interpretation or enforcement of, the existing laws, rules or
regulations of any governmental authority or a requirement of
Landlord's insurance carrier. The cost of such capital
improvements shall be amortized over a period of five (5) years
and shall, at Landlord's option, include interest at a rate that
is reasonably equivalent to the interest rate that Landlord would
be required to pay to finance the cost of the capital improvement
in question as of the date such capital improvement is performed,
provided if the payback period for any capital improvement is
less than five (5) years, Landlord may amortize the cost of such
capital improvement over the payback period. Notwithstanding the
foregoing, Basic Costs shall not include the cost of any capital
improvements that are required to correct work that, when
initially performed by Landlord, was performed in violation of
the then existing laws, rules or regulations, as then interpreted
or enforced, governing the performance of such work.
12. Any other expense or charge of any nature whatsoever which, in
accordance with general industry practice with respect to the
operation of a first-class office building, would be construed as
an operating expense.
Basic Costs shall not include the cost of capital improvements (except
as set forth above and as distinguished from replacement parts or
components purchased and installed in the ordinary course),
depreciation, interest (except as provided above with respect to the
amortization of capital improvements), lease commissions, and
principal payments on mort age and other non-operating debts of
Landlord. Basic Costs shall also exclude the following: (a) Repairs
or other work occasioned by: (i) fire, windstorm, or other casualty of
the type which Landlord has insured (to the extent that Landlord has
received insurance proceeds and provided that the amount of any
deductible paid by Landlord shall be included in Basic Costs); or (ii)
the exercise of the right of eminent domain (to the extent that such
repairs or other work are covered by the proceeds of the award, if
any, received by Landlord); (b) Leasing commissions, brochures,
marketing supplies, attorney's fees, costs, and disbursements and
other expenses incurred in connection with negotiation of leases with
prospective tenants; (c) Rental concessions granted to specific
tenants and expenses incurred in renovating or otherwise improving or
decorating, painting, or redecorating space for specific tenants,
other than ordinary repairs and maintenance provided or available to
tenants in general; (d) Landlord's costs of electricity and other
services sold or provided to tenants in the Building and for which
Landlord is entitled to be reimbursed by such tenants as a separate
additional charge or rental over and above the base rental or
additional base rental payable under the lease with such tenant; (e)
Overhead and profit increment paid to subsidiaries or other affiliates
of Landlord for services on or to the Property, Building and/or
Premises to the extent only that the costs of such services exceed the
competitive cost for such services rendered by persons or entities of
similar skill, competence and experience; (f)The cost of services that
are not available to Tenant under this Lease or for which Tenant
reimburses Landlord as a separate charge other than through Basic
Costs; (g) Advertising and promotional expenditures; (h) Costs
incurred in connection with the sale, financing, refinancing,
mortgaging or sale of the Building or Property, including brokerage
commissions, attorneys' and accountants' fees, closing costs, title
insurance premiums, transfer taxes and interest charges; (i) Costs,
fines, interest, penalties, legal fees or costs of litigation incurred
due to the late payments of taxes, utility bills and other costs
incurred by Landlord's failure to make such payments when due unless
such failure is due to Landlord's good faith and reasonable efforts in
contesting the amount of such payments; (j) Costs incurred by Landlord
for trustee's fees, partnership organizational expenses and accounting
fees to the extent relating to Landlord's
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general corporate overhead and general administrative expenses; (k)
Any penalties or liquidated damages that Landlord pays to Tenant under
this Lease or to any other tenants in the Building under their
respective leases; (l) Attorney's fees, costs and disbursements and
other expenses incurred in connection with negotiations or disputes
with tenants or other occupants of the Building or with prospective
tenants (other than attorney's fees, costs and disbursements and other
expenses incurred by Landlord in seeking to enforce Building rules and
regulations); (m) All costs of correcting defects in the initial
construction of the Building or in the initial Construction of any
subsequent renovations thereof or improvements thereto; (n) All costs
arising solely from the gross negligence or willful misconduct of
Landlord or its employees or agents.
In addition, if Landlord incurs any Common Expenses in connection with
the Building and one or more other buildings, the cost of such
Expenses shall be equitably prorated between the Building and such
other buildings. If the Building is not at least ninety-five percent
(95%) occupied during any calendar year of the Lease Term or if
Landlord is not supplying services to at least ninety-five percent
(95%) of the total Rentable Area of the Building at any time during
any calendar year of the Lease Term, actual Basic Costs for purposes
hereof (with respect to those items of Basic Costs that vary based on
occupancy only) shall, at Landlord's option, be determined as if the
Building had been ninety-five percent (95%) occupied and Landlord had
been supplying services to ninety-five percent (95%) of the Rentable
Area of the Building during such year. Any necessary extrapolation of
Basic Costs under this Article shall be performed by adjusting the
cost of those components of Basic Costs that are impacted by changes
in the occupancy of the Building (including, at Landlord's option,
Taxes) to the cost that would have been incurred if the Building had
been ninety-five percent (95%) occupied and Landlord had been
supplying services to ninety-five percent (95%) of the Rentable Area
of the Building. In no event shall Landlord collect from the tenants
of the Building for Basic Costs for any calendar year more than one
hundred percent (100%) of the Basic Costs for the applicable calendar
year.
C. Tenant, within ninety (90) days after receiving Landlord's statement
of actual Basic Costs for a particular calendar year, shall have the
right to provide Landlord with written notice (the "Review Notice") of
its intent to review Landlord's books and records relating to the
Basic Costs for such calendar year. Within a reasonable time after
receipt of a timely Review Notice, Landlord shall make such books and
records available to Tenant or Tenant's agent for its review at either
Landlord's home office or at the office of the Building, provided that
if Tenant retains an agent to review Landlord's books and records for
any calendar year, such agent must be CPA firm licensed to do business
in the state in which the Building is located. Tenant shall be solely
responsible for any and all costs, expenses and fees incurred by
Tenant or Tenant's agent in connection with such review. If Tenant
elects to review Landlord's books and records, within thirty (30) days
after such books and records are made available to Tenant, Tenant
shall have the right to give Landlord written notice stating in
reasonable detail any objection to Landlord's statement of actual
Basic Costs for such calendar year. If Tenant fails to give Landlord
written notice of objection within such thirty (30) day period or
fails to provide Landlord with a Review Notice within the ninety (90)
day period provided above, Tenant shall be deemed to have approved
Landlord's statement of Basic Costs in all respects and shall
thereafter be barred from raising any claims with respect thereto.
Upon Landlord's receipt of a timely objection notice from Tenant,
Landlord and Tenant shall work together in good faith to resolve the
discrepancy between Landlord's statement and Tenant's review. If
Landlord and Tenant determine that Basic Costs for the calendar year
in question are less than reported, Landlord shall provide Tenant with
a credit against future Additional Base Rental in the amount of any
overpayment by Tenant. In addition, if Landlord and Tenant determine
that Basic Costs for the Building for the year in question were less
than stated by more than five percent (5%), Landlord, within thirty
(30) days after its receipt of paid invoices therefor from Tenant,
shall reimburse Tenant for any reasonable amounts
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paid by Tenant to third parties in connection with such review by
Tenant. Likewise, if Landlord and Tenant determine that Basic Costs
for the calendar year in question are greater than reported, Tenant
shall forthwith pay to Landlord the amount of underpayment by Tenant.
Any information obtained by Tenant pursuant to the provisions of this
Section shall be treated as confidential. Notwithstanding anything
herein to the contrary, Tenant shall not be permitted to examine
Landlord's books and records or to dispute any statement of Basic
Costs unless Tenant has paid to Landlord the amount due as shown on
Landlord's statement of actual Basic Costs, said payment being a
condition precedent to Tenant's right to examine Landlord's books and
records.
D. Tenant covenants and agrees to pay to Landlord during the Lease Term,
without any set off or deduction whatsoever, the full amount of all
Base Rental and Additional Base Rental due hereunder. In addition,
Tenant shall pay and be liable for, as additional rent, all rental,
sales and use taxes or other similar taxes, if any, levied or imposed
by any city, state, county or other governmental body having
authority, such payments to be in addition to all other payments
required to be paid to Landlord by Tenant under the terms and
conditions of this Lease. Any such payments shall be paid concurrently
with the payments of the Rent on which the tax is based. The Base
Rental, Tenant's Pro Rata Share of Basic Costs and any recurring
monthly charges due hereunder shall be due and payable in advance on
the first day of each calendar month during the Lease Term without
demand. All other items of Rent shall be due and payable by Tenant on
or before ten (10) days after billing by Landlord. If the Lease Term
commences on a day other than the first day of a calendar month or
terminates on a day other than the last day of a calendar month, then
the monthly Base Rental and Tenant's Pro Rata Share of Basic Costs for
such month shall be prorated for the number of days in such month
occurring within the Lease Term based on a fraction, the numerator of
which is the number of days of the Lease Term that fell within such
calendar month and the denominator of which is thirty (30). All such
payments shall be by a good and sufficient check. No payment by Tenant
or receipt or acceptance by Landlord of a lesser amount than the
correct amount of Rent due under this Lease shall be deemed to be
other than a payment on account of the earliest Rent due hereunder,
nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any
other available remedy. The acceptance by Landlord of any Rent on a
date after the due date of such payment shall not be construed to be a
waiver of Landlord's right to declare a default for any other late
payment. Tenant's covenant to pay Rent shall be independent of every
other covenant set forth in this Lease.
E. All Rent not paid within five (5) days of the date it is due and
payable shall bear interest from the date due until paid at the lesser
of: (1) the Prime Rate plus four percent (4%) per annum; or (2) the
Maximum Rate. In addition if Tenant fails to pay any installment of
Rent within five (5) days of the date it is due and payable hereunder,
a service fee equal to five percent (5%) of such unpaid amount will be
due and payable immediately by Tenant to Landlord; provided Tenant
shall be entitled to notice and a grace period of five (5) days with
respect to the first two (2) late payments in any calendar year.
F. INTENTIONALLY OMITTED.
V. USE.
The Premises shall be used for the Permitted Use and for no other purpose.
Tenant agrees not to use or permit the use of the Premises for any purpose which
is illegal, dangerous to life, limb or property or which, in Landlord's
reasonable opinion, creates a nuisance or which would increase the cost of
insurance coverage with respect to the Building. Tenant shall conduct its
business and control its agents, servants, contractors, employees, customers,
licensees, and
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invitees in such a manner as not to interfere with, annoy or disturb other
tenants, or in any way interfere with Landlord in the management and operation
of the Building. Tenant will maintain the Premises in a clean and healthful
condition, and comply with all laws, ordinances, orders, rules and regulations
of any governmental entity with reference to the operation of Tenant's business
and to the use, condition, configuration or occupancy of the Premises, including
without limitation, the Americans with Disabilities Act (collectively referred
to as "Laws"). Tenant, within ten (10) days after receipt thereof, shall provide
Landlord with copies of any notices it receives with respect to a violation or
alleged violation of any Laws. Tenant shall reimburse and compensate Landlord
for all expenditures made by, or damages or fines sustained or incurred by,
Landlord due to any violations of Laws by Tenant or any Tenant Related Parties
with respect to the Premises. Tenant will comply with the rules and regulations
of the Building attached hereto as Exhibit B and such other rules and
regulations adopted and altered by Landlord from time to time and will cause all
of its agents, servants, contractors, employees, customers, licensees and
Invitees to do so. All changes to such rules and regulations will be reasonable
and shall be sent by Landlord to Tenant in writing. Landlord shall make
reasonable efforts not to discriminate against Tenant in the enforcement of all
such rules and regulations.
VI. SECURITY DEPOSIT.
A. The Security Deposit shall be delivered to Landlord upon the execution
of this Lease by Tenant and shall be held by Landlord without
liability for interest (except as required by law) and as security for
the performance of Tenant's obligations under this Lease. The Security
Deposit shall not be considered an advance payment of Rent or 6
measure of Tenant's liability for damages. Landlord may, from time to
time, without prejudice to any other remedy, use all or a portion of
the Security Deposit to make good any arrearage of Rent to repair
damages to the Premises, to clean the Premises upon termination of
this Lease or otherwise to satisfy any other covenant or obligation of
Tenant hereunder. Following any such application of the Security
Deposit, Tenant shall pay to Landlord on demand the amount so applied
in order to restore the Security Deposit to its original amount. If
Tenant is not in default at the termination of this Lease, after
Tenant surrenders the Premises to Landlord in accordance with this
Lease and all amounts due Landlord from Tenant are finally determined
and paid by Tenant or through application of the Security Deposit, the
balance of the Security Deposit remaining after any such application
shall be returned to Tenant. If Landlord transfers its interest in the
Premises during the Lease Term, Landlord may assign the Security
Deposit to the transferee and thereafter shall have no further
liability for the return of such Security Deposit. Tenant agrees to
look solely to such transferee or assignee for the return of the
Security Deposit. Landlord and its successors and assigns shall not be
bound by any actual or attempted assignment or encumbrance of the
Security Deposit by Tenant, provided, however, if Tenant's interest in
this Lease has been assigned. Landlord shall, provided that Landlord
has been furnished with a full executed copy of the agreement
assigning such Security Deposit, return the Security Deposit to such
assignee in accordance with the terms and conditions hereof. If
Landlord returns the Security Deposit to Tenants assignee as
aforesaid, Landlord will have no further obligation to any party with
respect thereto. Landlord shall not be required to keep the Security
Deposit separate from its other accounts. Notwithstanding anything
herein to the contrary, provided Tenant is not in default under this
Lease as of the effective date of any reduction of the Security
Deposit, Tenant shall have the right to reduce the amount of the
Security Deposit to be as follows: (i) $240,000,00 effective as of
January 1, 2000; (ii) $180,000.00 effective as of January 1, 2001,
(iii) $120,000.00 effective as of January 1, 2002; (iv) $60,000.00
effective January 1, 2003; and (v) $0.00 effective January 1, 2004.
B. All or part of the Security Deposit may be in the form of an
irrevocable letter of credit (the "Letter of Credit"), which Letter of
Credit shall: (a) initially be in the amount of $300,000.00; (b) be
issued on the form attached hereto as Exhibit F; (c) name Landlord as
its beneficiary; (d) be drawn on an FDIC insured financial institution
satisfactory to the Landlord; and (e) expire no earlier than December
31,
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2003. If Tenant deposits a Letter of Credit as its Security Deposit,
any reduction in the Security Deposit set forth in A, above shall be
accomplished by having Tenant provide Landlord with a substitute
letter of credit in the reduced amount.
VII. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord, as part of Basic Costs (except as otherwise provided),
agrees to furnish Tenant the following services:
1. Water for use in the lavatories on the floor(s) on which the
Premises is located. If Tenant desires water in the Premises for
any approved reason, including a private lavatory or kitchen,
cold water shall be supplied, at Tenant's sole cost and expense,
from the Building water main through a line and fixtures
installed at Tenant's sole cost and expense with the prior
reasonable consent of Landlord. If Tenant desires hot water in
the Premises, Tenant, at its sole cost and expense and subject to
the prior reasonable consent of Landlord, may install a hot water
heater in the Premises. Tenant shall be solely responsible for
maintenance and repair of any such hot water heater.
2. Central heat and air conditioning in season during Normal
Business Hours, at such temperatures and in such amounts as are
considered by Landlord, in its reasonable judgment, to be
standard for buildings of similar class, size, age and location,
or as required by governmental authority. In the event that
Tenant requires central heat, ventilation or air conditioning at
hours other than Normal Business Hours, such central heat,
ventilation or air conditioning shall be furnished only upon the
written request of Tenant delivered to Landlord at the office of
the Building prior to 3:00 p.m. at least one Business Day in
advance of the date for which such usage is requested. Tenant
shall pay Landlord, as Additional Base Rental, the entire cost of
additional service as such costs are determined by Landlord from
time to time.
3. Maintenance and repair of all Common Areas in the manner and to
the extent reasonably deemed by Landlord to be standard for
buildings of similar class, size, age and location.
4. Janitor service on Business Days; provided, however, if Tenants
use, floor covering or other improvements require special
services, Tenant shall pay the additional cost reasonably
attributable thereto as Additional Base Rental.
5. Passenger elevator service in common with other tenants of the
Building.
6. Electricity to the Premises for generally office use, in
accordance with and subject to the terms and conditions set forth
in Article XI of this Lease.
B. The failure by Landlord to any extent to furnish, or the interruption
or termination of, any services in whole or in part, resulting from
adherence to laws, regulations and administrative orders, wear, use,
repairs, improvements alterations or any causes beyond the reasonable
control of Landlord shall not render Landlord liable in any respect
nor be construed as a constructive eviction of Tenant, nor give rise
to an abatement of Rent, nor relieve Tenant from the obligation to
fulfill any covenant or agreement hereof. Should any of the equipment
or machinery used in the provision of such services for any cause
cease to function properly, Landlord shall use reasonable diligence to
repair such equipment or machinery. Notwithstanding anything to the
contrary contained in this Section VII.B, if (i) Landlord ceases to
furnish any service in the Building for a period in excess of five (5)
consecutive days after Tenant notifies Landlord of such cessation (the
"Interruption Notice"); (ii) such cessation does not arise as a result
of an act or omission of Tenant; (iii) such cessation is not caused by
a fire or other casualty (in
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which case Article XIX shall control); (iv) the restoration of such
service is reasonably within the control of Landlord; and (v) as a
result of such cessation, the Premises, or a material portion thereof,
is rendered untenantable (meaning that Tenant is unable to use the
Premises in the normal course of its business) and Tenant in fact
ceases to use the Premises, or material portion thereof, then Tenant,
as its sole remedy, shall be entitled to receive an abatement of Base
Rental payable hereunder during the period beginning on the sixth
(6th) consecutive day of such cessation and ending on the day when the
service in question has been restored. In the event the entire
Premises has not been rendered untenantable by the cessation in
service, the amount of abatement that Tenant is entitled to receive
shall be prorated based upon the percentage of the Premises so
rendered untenantable and not used by Tenant.
C. Tenant expressly acknowledges that if Landlord, from time to time,
elects to provide security services, Landlord shall not be deemed to
have warranted the efficiency of any security personnel, service,
procedures or equipment and Landlord shall not be liable in any manner
for the failure of any such security personnel, services, procedures
or equipment to prevent or control, or apprehend anyone suspected of
personal injury, property damage or any criminal conduct in, on or
around the Property.
VII. LEASEHOLD IMPROVEMENTS.
Any trade fixtures, unattached and movable equipment or furniture, or other
personalty brought into the Premises by Tenant ("Tenant's Property") shall be
owned and Insured by Tenant. Tenant shall remove all such Tenant's Property from
the Premises in accordance with the terms of Article XXIV hereof. Any and all
alterations, additions and improvements to the Premises, including any built-in
furniture (collectively, "Leasehold Improvements") shall be owned and insured by
Landlord and shall remain upon the Premises, all without compensation, allowance
or credit to Tenant. Landlord may, nonetheless. at any time prior to, or within
three (3) months after, the expiration or earlier termination of this Lease or
Tenant's right to possession, require Tenant to remove any Leasehold
Improvements performed by or for the benefit of Tenant and all electronic, phone
and data cabling as are designated by Landlord (the "Required Removable") at
Tenant's sole cost. Notwithstanding the foregoing, upon Tenant's written
request, Landlord will inspect the Premises with Tenant prior to the expiration
of the Lease Term and, if Tenant so requests, in lieu of the three (3) month
period set forth above, Landlord will designate the Required Removables within
fifteen (15) days of said inspection. Landlord shall not require Tenant to
remove the initial work to the Premises. In the event that Landlord so elects,
Tenant shall remove such Required Removables within ten (10) days after notice
from Landlord, provided that in no event shall Tenant be required to remove such
Required Removables prior to the expiration or earlier termination of this Lease
or Tenant's right to possession. In addition to Tenant's obligation to remove
the Required Removables, Tenant shall repair any damage caused by such removal
and perform such other work as is reasonably necessary to restore the Premises
to a "move in" condition. If Tenant fails to remove any specified Required
Removables or to perform any required repairs and restoration within the time
period specified above, Landlord, at Tenant's sole cost and expense, may remove,
store, sell and/or dispose of the Required Removables and perform such required
repairs and restoration work. Tenant, within five (5) days after demand from
Landlord, shall reimburse Landlord for any and all reasonable costs incurred by
Landlord in connection with the Required Removables. Notwithstanding the
foregoing, Tenant may request in writing at the time it submits its plans and
specifications for an alteration, addition or improvement, that Landlord advise
Tenant whether Landlord will require Tenant to remove, at the termination of
this Lease or Tenant's right to possession hereunder, such alteration, addition
or improvement, or any particular portion thereof and Landlord shall advise
Tenant within fifteen (15) days after receipt of Tenant's request as to whether
Landlord will require removal; provided. however, Landlord shall have the right
to require Tenant to remove any vault, stairway, raised floor or structural
alterations installed in the Premises, regardless of whether Landlord timely
notified Tenant that it would require such removal.
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IX. GRAPHICS.
Landlord shall provide and install, at Tenant's cost, any suite numbers and
Tenant identification on the exterior of the Premises using the standard
graphics for the Building. Tenant shall not be permitted to install any
signs or other identification without Landlord's prior written consent.
Tenant shall also be entitled to its proportionate share of lines on the
building directory. Tenant shall not be charged a fee for the initial
installation of any names on the Building directory. Tenant shall,
however, be required to pay Landlord's then standard fee for any Additional
names to be added to the Building directory or any replacement of
previously existing names.
X. REPAIRS AND ALTERATIONS.
A. Except to the extent such obligations are imposed upon Landlord
hereunder, Tenant, at its sole cost and expense, shall perform all
maintenance and repairs to the Premises as are necessary to keep the
same in good condition and repair throughout the entire Lease Term,
reasonable wear and tear excepted. Tenant's repair and maintenance
obligations with respect to the Premises shall include, without
limitation, any necessary repairs with respect to: (1) any carpet or
other floor covering, (2) any interior partitions, (3) any doors, (4)
the interior side of any demising walls, (5) any telephone and
computer cabling that serves Tenant's equipment exclusively, (6) any
supplemental air conditioning units, private showers and kitchens,
including any plumbing in connection therewith, and similar facilities
serving Tenant exclusively, and (7) any alterations, additions or
improvements performed by contractors retained by Tenant. All such
work shall be performed in accordance with section X.B. below and the
rules, policies and procedures reasonably enacted by Landlord from
time to time for the performance of work in the Building. If Tenant
falls to make any necessary repairs to the Premises, Landlord may, at
its option, make such repairs, and Tenant shall pay the cost thereof
to the Landlord on demand as Additional Base Rental, together with an
administrative charge in an amount equal to ten percent (10%) of the
cost of such repairs. Landlord shall, at its expense (except as
included in Basic Costs), keep and maintain in good repair and working
order and make all repairs to and perform necessary maintenance upon
(a) all structural elements of the Building; and (b) all mechanical,
electrical and plumbing systems that serve the Building in general;
and (c) the Building facilities common to all tenants including, but
not limited to, the ceilings, walls and floors in the Common Areas. In
addition, Landlord may elect, at the expense of Tenant, to repair any
damage or injury to the Building caused by moving property of Tenant
in or out of the Building, or by installation or removal of furniture
or other property, or by misuse by, or neglect, or improper conduct
of, Tenant or any Tenant Related Parties (hereinafter defined.)
B. Tenant shall not make or allow to be made any alterations, additions
or improvements to the Premises without first obtaining the written
consent of Landlord in each such instance. Notwithstanding the
foregoing, Landlord's consent shall not be required for any
alteration, additio or improvement that satisfies all of the following
criteria: 1) costs less than $10,000.00; 2) is of a cosmetic nature
such as painting, wallpapering, hanging pictures and installing
carpeting; 3) is not visible from the exterior of the Premises or
Building; and 4) will not affect the systems or structure of the
Building and does not require work to be performed inside the walls or
above the ceiling of the Premises; provided that even if consent is
not required, Tenant shall still comply with all the other provisions
of this Section X.B. Prior to commencing any such work and as a
condition to obtaining Landlord's consent, Tenant must furnish
Landlord with plans and specifications reasonably acceptable to
Landlord; names and addresses of contractors reasonably acceptable to
Landlord; copies of contracts; necessary permits and approvals;
evidence of contractor's and subcontractor's insurance in accordance
with Article XVI section B, hereof; and payment bond or other
security, all in form and amount satisfactory to Landlord. All such
improvements, alterations or additions shall be constructed in a good
and workmanlike manner
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using Building Standard materials or other new materials of equal or
greater quality. Landlord, to the extent reasonably necessary to avoid
any disruption to the tenants and occupants of the Building, shall
have the right to designate the time when any such alterations,
additions and improvements may be performed and to otherwise designate
reasonable rules, regulations and procedures for the performance of
work in the Building. Upon completion, Tenant shall furnish "as-built"
plans, contractor's affidavits and full and final waivers of lien and
receipted bills covering all labor and materials. All improvements,
alterations and additions shall comply with all insurance
requirements, codes, ordinances, laws and regulations, including
without limitation. the Americans with Disabilities Act. Tenant shall
reimburse Landlord within twenty (20) days after demand as Additional
Base Rental for all sums, if any, expended by Landlord for third party
examination of the architectural, mechanical, electric and plumbing
plans for any alterations, additions or improvements. In addition, if
Landlord so requests, Landlord shall be entitled to oversee the
construction of any alterations, additions or improvements that may
affect the structure of the Building or any of the mechanical,
electrical, plumbing or life safety systems of the Building. In the
event Landlord elects to oversee such work, Landlord shall be entitled
to receive a fee for such oversight in an amount equal to ten percent
(10%) of the cost of such alterations, additions or improvements.
Landlord's approval of Tenant's plans and specifications for any work
performed for or on behalf of Tenant shall not be deemed to be a
representation by Landlord that such plans and specifications comply
with applicable insurance requirements, building codes, ordinances,
laws or regulations or that the alterations, additions and
improvements constructed in accordance with such plans and
specifications will be adequate for Tenant's use. Tenant shall pay, as
an additional charge, the entire increase in real estate taxes on the
Building which shall, at any time prior to or after the Commencement
Date, result from or be attributable to any alteration, addition or
improvement to the Premises made by or for the account of Tenant in
excess of the Building Standard improvements for the Building.
XI. USE OF ELECTRICAL SERVICES BY TENANT.
A. All electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (1) through inclusion in Base
Rental and Basic Costs (except as provided in Section XI.B. below with
respect to excess usage); or (2) by a separate charge billed directly
to Tenant by Landlord and payable by Tenant as Additional Base Rental
within ten (10) days after billing; or (3) by a separate charge or
charges billed by the utility company(ies) providing electrical
service and payable by Tenant directly to such utility company(ies).
It is understood that electrical service to the Premises may be
furnished by one or more companies providing electrical generation,
transmission and/or distribution services and that the cost of
electricity may be billed as a single charge or divided into and
billed in a variety of categories such as distribution charges,
transmission charges, generation charges, public good charges or other
similar categories. Landlord shall have the exclusive right to select
the company(ies) providing electrical service to the Building,
Premises and Property, to aggregate the electrical service for the
Building, Premises and Property with other buildings, to purchase
electricity for the Building, Premises and Property through a broker
and/or buyers group and to change the providers and/or manner of
purchasing electricity from time to time. Landlord shall be entitled
to receive a reasonable fee (if permitted by law) for the services
provided by Landlord in connection with the selection of utility
companies and the negotiation and administration of contracts for the
generation of electricity. In addition, if Landlord bill Tenant
directly for cost of electricity as Additional Base Rental, the cost
of electricity may include (if permitted by law) and administrative
fee to reimburse Landlord for the cost of reading meters, preparing
invoices and related costs.
B. Tenant's use of electrical service in the Premises shall not exceed,
either in voltage, rated capacity, use beyond Normal Business Hours or
overall load, that which
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Landlord deems to be standard for the Building. In the event Tenant
shall consume (or request that it be allowed to consume) electrical
service in excess of that deemed by landlord to be standard for the
Building. Landlord may refuse to consent to such excess usage or may
conditions its consent to such excess usage upon such conditions as
Landlord reasonably elects (including the installation of utility
service upgrades, submeters, air handlers or cooling units), and all
such additional usage (to the extent permitted by law). Installation
and maintenance thereof shall be paid for by Tenant as Additional Base
Rental. Landlord, at any time during the Lease Term, shall have the
right to separately meter electrical usage for the Premises or to
measure electrical usage by survey or any other method that Landlord,
in its reasonable judgment, deemed to be appropriate.
C. Notwithstanding Section A. above to the contrary, if Landlord permits
Tenant to purchase electrical power for the Premises from a provider
other than Landlord's designated company(ies), such provider shall be
considered to be a contractor of Tenant and Tenant shall indemnity and
hold Landlord harmless from such provider's acts and omissions while
in, or in connection bath their services to, the building or Premises
in accordance with the terms and conditions of Article XV. In
addition, at the request of Landlord, Tenant shall allow Landlord to
purchase electricity from Tenant's provider at Tenant's rate or at
such lower rate as can be negotiated by the aggregation of Landlord's
and Tenant's requirements for electricity power. Notwithstanding the
foregoing, in no event shall the cost of electricity to the Premises
(inclusive of any reasonable fee to Landlord as set forth above)
exceed the cost that Tenant would have been required to pay for
electricity furnished to the Premises if Tenant had purchased such
electricity directly for its own account from Tenant's provider or the
Building's electrical provider.
XII. ENTRY BY LANDLORD.
Landlord and its agents or representatives shall have the right to enter
the Premises to inspect the sale, or to show the Premises to prospective
purchasers, mortgagees. tenants (during the last twelve months of the Lease Term
or earlier in connection with a potential relocation) or Insurers, or to clean
or make repairs, alterations or additions thereto. including any work that
Landlord deems necessary for the safety, protection or preservation of the
Building or any occupants thereof, or to facilitate repairs, alterations or
additions to the Building or any other tenants' premises. Except for any entry
by Landlord in an emergency situation or to provide normal cleaning and
janitorial service, Landlord shall provide Tenant with reasonable prior notice
of any entry into the Premises, which notice may be given verbally. If
reasonably necessary for the protection and safety of Tenant and its employees,
Landlord shall have the right to temporarily close the Premises to perform
repairs, alterations or additions in the Premises, provided that Landlord shall
user reasonable efforts to perform all such work on weekends and after normal
business hours. Entry by Landlord hereunder shall not constitute a constructive
eviction or entitle Tenant to any abatement or reduction of Rent by reason of
rent by reason thereof. Notwithstanding the foregoing, except emergency
situations as deemed by Landlord, Landlord shall exercise reasonable efforts to
perform any entry into the Premises in a manner that is reasonably designed to
minimize interference with the operation of Tenant's business in the Premises.
XIII. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not assign, sublease, transfer or encumber this Lease or
any interest therein or grant any license, concession or other right
of occupancy of the Premises or any portion thereof or otherwise
permit the use of the Premises or any portion thereof by any party
other then Tenant (any of which events is hereinafter called a
"Transfer") without the prior written consent of Landlord, which
consent shall not be unreasonably withheld with respect to any
proposed assignment or subletting. Landlord's consent shall not be
considered unreasonably withheld if: (1) the proposed transferee's
financial responsibility does not meet the same criteria Landlord
reasonably uses to select Building tenants provided with respect to a
subtenant, Landlord shall apply a standard of whether the proposed
subtenant is
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financially able to meet its obligations, including its obligation to
pay rent under the sublease, as they become due; (2) the proposed
transferee's business is not suitable for the Building considering the
business of the other tenants and the Building's prestige or would
result in a violation of an exclusive right granted to another tenant
in the Building; (3) the proposed use is different than the Permitted
Use; (4) the proposed transferee is a government agency or occupant of
the Building; (5) Tenant, is in default; or (6) any person of the
Building or Premises would become subject to additional or different
governmental laws or regulations as a consequence of the proposed
Transfer and/or the proposed transferee's use and occupancy of the
Premises. Notwithstanding the foregoing, Landlord will not withhold
its consent solely because the proposed subtenant or assignee is an
occupant of the Building if Landlord does not have space available for
lease in the Building that is comparable to the space Tenant desires
to sublet or assign. For purposes hereof, Landlord shall be deemed to
have comparable space if it has space available on any floor of the
Building that is approximately the same size as the space Tenant
desires to sublet or assign within six (6) months of the proposed
commencement of the proposed sublease or assignment. Tenant
acknowledges that the foregoing is not intended to be an exclusive
list of the reasons for which Landlord may reasonably withhold its
consent to a proposed Transfer. Any attempted Transfer in violation of
the terms of this Article shall, at Landlord's option, be void.
Consent by Landlord to one or more Transfers shall not operate as a
waiver of Landlord's rights as to any subsequent Transfers. In
addition, Tenant shall not, without Landlord's consent, publicly
advertise the proposed rental rate for any Transfer. Notwithstanding
anything to the contrary contained herein or in Section XIII.D.,
Tenant may assign its entire interest under this Lease or sublet the
Premises to a wholly owned corporation, partnership or other legal
entry or affiliate, subsidiary or parent of Tenant or to any successor
to Tenant by purchase, merger, consolidation or reorganization
(hereinafter, collectively, referred to as "Permitted Transfer")
without the consent of Landlord, provided: (i) Tenant is not in
default under this Lease: (ii) if such proposed transferee is a
successor to Tenant by purchase, merger, consolidation or
reorganization,the continuing or surviving entity shall own all or
substantially all of the assets of Tenant and shall have a net worth
which is at least equal to the greater of Tenant's net worth at the
date of this Lease or Tenant's net worth at the date of the Transfer;
(iii) such proposed transferee operates the business in the Premises
for the Permitted Use and no other purpose; and (iv) in no event shall
any Transfer release or relieve Tenant from any of its obligations
under this Lease. Tenant shall give Landlord written notice at least
thirty (30) days prior to the effective date of such Permitted
Transfer if such notice is not prohibited by any laws. As used herein:
(a) "parent" shall mean a company which owns a majority of Tenant's
voting equity; (b) "subsidiary" shall mean an entity wholly owned by
Tenant or at least fifty-one percent (51%) of whose voting equity is
owned by Tenant; and (c) "affiliate" shall mean an entity controlled,
controlling or under common control with Tenant. Notwithstanding the
foregoing, sale of the shares of equity of any affiliate or subsidiary
to which this Lease has been assigned or transferred other than to
another parent, subsidiary or affiliate of the original Tenant named
hereunder shall be deemed to be an assignment requiring the consent of
Landlord hereunder. The preceding sentence shall not apply whenever
Tenant is a corporation, the outstanding stock of which is listed on a
recognized security exchange.
B. If Tenant requests Landlord's consent to a Transfer, Tenant, together
with such request for consent, shall provide Landlord with the name of
the proposed transferee and the nature of the business of the proposed
transferee, the term, use, rental rate and all other material terms
and conditions of the proposed Transfer, including, without
limitation, a copy of the proposed assignment, sublease or other
contractual documents and evidence satisfactory to Landlord that the
proposed transferee is financially responsible. Notwithstanding
Landlord's agreement to act reasonably under Section XIII.A. above,
Landlord may, within thirty (30) days after its receipt of all
information and documentation required herein, either,
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(1) consent to or reasonably refuse to consent to such Transfer in
writing; or (2) negotiate directly with the proposed transferee and in
the event Landlord is able to reach an agreement with such proposed
transferee, terminate this Lease (in part or in whole, as
appropriate); or (3) cancel and terminate this Lease, in whole or in
part as appropriate, Tenant, within five (5) days after receipt of
Landlord's notice of intent to terminate, may withdraw its request for
consent to the Transfer. In such event, Landlord's election to
terminate the Lease shall be null and void and of no force and effect.
Notwithstanding the foregoing, Landlord shall not have the right to
terminate pursuant to 2 or 3 above if the proposed transferee is a
wholly owned corporation or controlled subsidiary or affiliate of
Tenant or a successor to Tenant by purchase, merger, consolidation or
reorganization. In addition, if Landlord would be entitled to
terminate this Lease hereunder with respect to all or any portion of
the Premises, Tenant, prior to entering into a sublease or assignment,
shall have the right to advise Landlord (the "Prior Notice") of its
intention to sublet the Premises or assign this Lease. Such Prior
Notice shall describe the space Tenant intends to sublet or assign and
the effective date thereof. Landlord, within sixty (60) days after
receipt of the Prior Notice, shall have the right to terminate this
Lease with respect to the space that Tenant intends to sublet or
assign as of the effective date set forth in the Prior Notice. If
Landlord falls to exercise its right to terminate within sixty (60)
days after the Prior Notice, Landlord shall not have the right to
cancel and terminate this Lease in connection with any proposed
sublease or assignment with respect to the space described. In the
Prior Notice that Tenant enters into within a period of six (6) months
after the expiration of such sixty (60) day period. In the event
Landlord consents to any such Transfer, the Transfer and consent
thereto shall be in a form approved by Landlord, and Tenant shall bear
all reasonable costs and expenses incurred by Landlord in connection
with the review and approval of such documentation, which costs and
expenses shall be deemed to be at least Seven Hundred Fifty Dollars
($750.00). Notwithstanding the foregoing, provided that Tenant does
not request any changes to this Lease or Landlord's standard form of
consent in connection with the proposed transfer, such costs and
expenses shall not exceed Seven Hundred Fifty Dollars $750.00 deduct
the following expenditures resulting from such subletting or
assignment: (1) brokerage and marketing fees; (2) legal fees; (3)
construction costs; and (4) financial concessions granted in such
sublease or assignment. In addition to any other rights Landlord may
have, Landlord shall have the right to contact any transferee and
require that all payments made pursuant to the Transfer shall be made
directly to Landlord.
C. Fifty percent (50%) of all cash or other proceeds (the "Transfer
Consideration") of any Transfer of Tenant's Interest in this Lease
and/or the Premises, whether consented to by Landlord or not, shall be
paid to Landlord and Tenant hereby assigns all rights it might have or
ever acquire in any such proceeds to Landlord. In addition to the Rent
hereunder, Tenant hereby covenants and agrees to pay to Landlord fifty
percent (50%) of all rent and other consideration which it receives
which is in excess of the Rent payable hereunder within ten (10) days
following receipt thereof by Tenant. In determining the Transfer
Consideration or excess rent in connection with an assignment or
subletting, Tenant may deduct the following expenditures resulting
from such subletting or assignment: (1) brokerage and marketing fees;
(2) legal fees; (3) construction costs; and (4) financial concessions
granted in such sublease or assignment. In addition to any other
rights Landlord may have, Landlord shall have the right to contact any
transferee and require that all payments made pursuant to the Transfer
shall be made directly to Landlord.
D. If Tenant is a corporation, limited liability company or similar
entity, and if at any time during the Lease Term the entity or
entities who own the voting shares at the time of the execution of
this Lease cease for any reason (including but not limited to merger,
consolidation or other reorganization involving another corporation)
to own a majority of such shares, or if Tenant is a partnership and if
at any time during the Lease Term the general partner or partners who
own the general
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partnership interests in the partnership at the time of the execution
of this Lease, cease for any reason to own a majority of such
interests (except as the result of transfers by gift, bequest or
inheritance to or for the benefit of members of the immediate family
of such original shareholders or partner[s]), such an event shall be
deemed to be a Transfer. The preceding sentence shall not apply
whenever Tenant is a corporation, the outstanding stock of which is
listed on a recognized security exchange, or if at least eighty
percent (80%) of its voting stock is owned by another corporation, the
voting stock of which is so listed.
E. Any Transfer consented to by Landlord in accordance with this Article
XIII shall be only for the Permitted Use and for no other purpose. In
no event shall any Transfer release or relieve Tenant or any
Guarantors from any obligations under this Lease.
XIV. LIENS
Tenant will not permit any mechanic's liens or other liens to be placed
upon the Premises or Tenant's leasehold interest therein, the Building, or the
Property. Landlord's title to the Building and Property is and always shall 'be
paramount to the interest of Tenant, and nothing herein contained shall empower
Tenant to do any act that can, shall or may encumber Landlord's title. In the
event any such lien does attach, Tenant shall, within ton (10) days of notice of
the filing of said lien, either discharge or bond over such lien to the
satisfaction of Landlord and Landlord's Mortgagee (as hereinafter defined), and
in such a manner as to remove the lien as an encumbrance against the Building
and Property. If Tenant shall fail to so discharge or bond over such lien,
then, in addition to any other right or remedy of Landlord, Landlord may, but
shall not be obligated to bond over or discharge the same. Any amount paid by
Landlord for any of the aforesaid purposes, including reasonable attorneys' fees
(if and to the extent permitted by law) shall be paid by Tenant to Landlord on
demand as Additional Baie Rental. Landlord shall have the right to post and
keep posted on the Premises any notices that may be provided by law or which
Landlord may deem to be proper for the protection of Landlord, the Premises and
the Building from such liens.
XV. INDEMNITY AND WAIVER OF CLAIMS.
A. Except to the extent such losses, liabilities, obligations, damages,
penalties, claims, costs, charges, and expenses result from the
negligence of Landlord and/or its agents, employees or contractors,
Tenant shall indemnify, defend and hold Landlord, its members,
principals, beneficiaries. partners, officers, directors, employees,
Mortgagee(s) and agents, and the respective principals and members of
any such agents (collectively the "Landlord Related Parties") harmless
against and from all liabilities, obligations, damages (including
consequential damages related to a holdover tenancy but excluding all
other consequential damages), penalties. claims, costs, charges and
expenses,, including, without limitation, reasonable attorneys' fees
and other professional fees (if and to the extent permitted by law),
which may be imposed upon, incurred by, or asserted against Landlord
or any of the Landlord Related Parties and arising, directly or
indirectly, out of or in connection With the use, occupancy or
maintenance of the Premises by, through or under Tenant including,
without limitation. any of the following: (1) any work or thing done
in, on or about the Premises or any part thereof by Tenant or any of
its transferees, agents, servants, contractors, employees, customers,
licensees or invitees; (2) any use, non-use, possession, occupation,
condition, operation or maintenance of the Premises or any part
thereof, (3) any act or omission of Tenant or any of its transferees,
agents, servants, contractors, employees, customers, licensees or
invitees, regardless of whether such act or omission occurred within
the Premises; (4) any injury or damage to any person or property
occurring in, on or about the Premises or any part thereof; or (5) any
failure on the part of Tenant to perform or comply with any of the
covenants, agreements, terms or conditions contained in this Lease
with which Tenant must comply or perform. In case any action or
proceeding is brought against Landlord or any of the Landlord Related
Parties by reason of any of the foregoing, Tenant shall, at Tenant's
sole cost and
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expense, resist and defend such action or proceeding With counsel
reasonably approved by Landlord. Notwithstanding the foregoing
provisions of this Section XV, nothing contained in this Lease shall
be deemed to constitute a release of Landlord from, or an obligation
to indemnify Landlord for. its own negligence.
B. Landlord and the Landlord Related Parties shall not be liable for, and
Tenant hereby waives, all claims for loss or damage to Tenant's
business or damage to person or property sustained by Tenant or any
person claiming by, through or under Tenant [including Tenant's
principals, agents and employees (collectively, the "Tenant Related
Parties")] resulting from any accident or occurrence in, on or about
the Promises, the Building or the Property, including, without
limitation, claims for loss, theft or damage resulting from: (1) the
Premises, Building, or Prop", or any equipment or appurtenances
becoming out of repair, (2) wind or weather; (3) any defect in or
failure to operate, for whatever reason. any sprinkler, heating or
air-conditioning equipment, electric wiring, gas, water or steam
pipes; (4) broken glass; (5) the backing up of any sewer pipe or
downspout; (6) the bursting, leaking or running of any tank, water
closet, drain or other pipe; (7) the escape of steam or water, water,
snow or ice being upon or coming through the roof, skylight, stairs,
doorways, windows, walks or any other place upon or near the Building;
(9) the falling of any fixture, plaster, tile or other material; (10)
any act, omission or negligence of other tenants, licensees or any
other persons or occupants of the Building or of adjoining or
contiguous buildings, or owners of adjacent or contiguous property or
the public, or by construction of any private, public or quasi-public
work; or (11) any other cause of any nature except, as to items 1-9,
where such loss or damage is due to Landlord's willful failure to make
repairs required to be made pursuant to other provisions of this
Lease, after the expiration of a reasonable time after written notice
to Landlord of the need for such repairs. To the maximum extent
permitted by law, Tenant agrees to use and occupy the Premises, and to
use such other portions of the Building as Tenant is herein given the
right to use, at Tenant's own risk.
C. Except to the extent such losses, liabilities, obligations, damages,
penalties, claims, costs. charges and expenses result from the
negligence of Tenant or any Tenant Related Parties, Landlord shall
indemnify and hold Tenant harmless from and against all liabilities,
obligations, damages (other than consequential damages), penalties,
claims, costs, charges and expenses, including, without limitation,
reasonable attorneys' fees, which may be imposed upon, incurred by, or
asserted against Tenant by any third parties and arising, directly or
indirectly. out of or in connection with any of the following: (i) any
work or thing done in, on or about the Property or any part thereof by
Landlord or any of its agents, contractors or employees; (ii) any use,
non-use, possession, occupation, condition, operation, maintenance or
management of the Property or any part thereof by Landlord or any of
its agents. contractors or employees; (iii) any act or omission of
Landlord or any of its agents, contractors or employees; and (iv) any
injury or damage to any person or property occurring in, on or about
the Property or any part thereof, provided, however, that in each case
such liability, obligation, damage, penalty, claim, cost, charge or
expense results from the negligence of Landlord and/or its agents,
employees or contractors. In case any action or proceeding is brought
against Tenant or any of the Tenant Related Parties by a third party
by reason of any of the foregoing, Landlord shall, at Landlord's sole
cost and expense, resist and defend such action or proceeding with
counsel reasonably approved by Tenant.
XVI. TENANT'S INSURANCE.
A. At all times commencing on and after the earlier of the Commencement
Date and the date Tenant or its agents, employees or contractors
enters the Premises for any purpose, Tenant shall carry and maintain,
at its sole cost and expense:
1. Commercial General Liability Insurance applicable to the Premises
and its appurtenances providing, on an occurrence basis, a
minimum Combined
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single limit of Two Million Dollars ($2,000,000.00), with a
contractual liability endorsement covering Tenant's indemnity
obligations under this Lease.
2. All Risks of Physical Loss Insurance written at replacement cost
value and with a replacement cost endorsement covering all of
Tenant's Property in the Premises.
3. Workers' Compensation Insurance as required by the state in which
the Premises is located and in amounts as may be required by
applicable statute, and Employers' Liability Coverage of One
Million Dollars ($1,000,000.00) per occurrence.
4. If and to the extent commonly required by other landlords of
first class office buildings in downtown Chicago, Landlord, in
the exercise of prudent business judgment, shall have the right
to require Tenant to obtain additional insurance coverage or
different Landlord) and Commercial General Liability insurance
(including, without limitation, Contractor's Liability coverage,
Contractual Liability coverage and Completed Operations
coverage,) written on an occurrence basis with a minimum combined
single limit of Two Million Dollars ($2.000,000.00) and adding
"the named Landlord hereunder (or any successor thereto), Equity
Office Properties Trust, a Maryland real estate investment trust,
EOP Operating Limited Partnership, a Delaware limited
partnership, and their respective members, principals,
beneficiaries, partners, officers. directors, employees, agents
and any Mortgagee(s)', and other designees of Landlord as the
interest of such designees shall appear, as additional insureds
(collectively referred to as the "Additional insureds").
B. Except for items for which Landlord is responsible under the Work
Letter Agreement, before any repairs, alterations, additions,
improvements, or construction are undertaken by or on behalf of
Tenant, Tenant shall carry and maintain, at its expense, or Tenant
shall require any contractor performing work on the Premises to carry
and maintain, at no expense to Landlord, in addition to Workers'
Compensation insurance as required by the jurisdiction in which the
Building is located, All Risk Builder's Risk insurance in the amount
of the replacement cost of any alterations, additions or improvements
(or such other amount reasonably required by Landlord) and Commercial
General Liability Insurance (including, without limitation,
Contractor's Liability coverage, Contractual Liability coverage and
Completed Operations coverage,) written on an occurrence basis with a
minimum combined single limit of Two Million Dollars ($2,000,000.00)
and adding "the named Landlord hereunder (or any successor thereto),
Equity Office Properties Trust, a Maryland real estate investment
trust, EOP Operating Limited Partnership, a Delaware limited
partnership, and their respective members, principals, beneficiaries,
partners, officers, directors, employees, agents and any
Mortgagee(s)", and other designees of Landlord as the Interest of such
designees shall appear, as additional insureds (collectively referred
to as the "Additional Insureds").
C. Any company writing any insurance which Tenant is required to maintain
or Cause to be maintained pursuant to the terms of this Lease (all
such insurance as well as any other insurance pertaining to the
Premises or the operation of Tenant's business therein being referred
to as "Tenant's Insurance"), as well as the form of such insurance,
shall at all times be subject to Landlord's reasonable approval, and
each such insurance company shall have an A.M. Best rating of A "or
better and shall be licensed and qualified to do business in the state
in which the Premises is located. All policies evidencing Tenant's
Insurance (except for Workers' Compensation Insurance) shall specify
Tenant as named Insured and the Additional Insureds as additional
insureds. Provided that the coverage afforded Landlord and any
designees of Landlord shall not be reduced or otherwise adversely
affected, all
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of Tenant's Insurance may be carried under a blanket policy covering
the Premises and any other of Tenant's locations. All policies of
Tenant insurance shall contain endorsements that the Insurer(s) will
give to Landlord and its designees at least thirty (30) days'
advance written notice of any change, cancellation, termination or
lapse of said insurance. Tenant shall be solely responsible for
payment of premiums for all of Tenant's Insurance. Tenant shall
deliver to Landlord at least fifteen (15) days prior to the time
Tenant's Insurance is first required to be carried by Tenant and
upon renewals at least fifteen (15) days prior to the expiration of
any such insurance coverage, a certificate of insurance of all
policies procured by Tenant in compliance with its obligations under
this Lease. The limits of Tenant's Insurance shall in no event limit
Tenant's liability under this Lease.
D. Tenant shall not do or fail to do anything in, upon or about the
Promises which will: (1) violate the terms of any of Landlord's
insurance policies; (2) prevent Landlord from obtaining policies of
insurance acceptable to Landlord or any Mortgagees; or (3) result in
an increase in the rate of any insurance on the Premises, the
Building, any other property of Landlord or of others within the
Building. In the event of the occurrence of any of the events set
forth in this Section, Tenant shall pay Landlord upon demand, as
Additional Base Rental, the cost of the amount of any increase in
any such insurance premium, provided that the acceptance by Landlord
of such payment shall not be construed to be a waiver of any rights
by Landlord in connection with a default by Tenant under the Lease.
If Tenant fails to obtain the Insurance coverage required by this
Lease, Landlord may, at its option, obtain such insurance for
Tenant, and Tenant shall pay, as Additional Base Rental, the cost of
all premiums thereon and all of Landlord's costs associated
therewith.
XVII. SUBROGATION.
Notwithstanding anything set forth in this Lease to the contrary,
Landlord and Tenant do hereby waive any and all right of recovery, claim, action
or cause of action against the other, their respective principals,
beneficiaries, partners, officers, directors, agents and employees, and with
respect to Landlord, its Mortgagee(s), for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to their respective property, the
Building, the Property or the Premises or any addition or improvements thereto,
or any contents therein, by reason of fire, the elements or any other cause,
regardless of cause or origin, including the negligence of Landlord or Tenant,
or their I respective principals, beneficiaries, partners. officers, directors,
agents and employees and. with respect to Landlord, its Mortgagee(s), which loss
or damage is (or would have been, had the insurance required by this Lease been
carried) covered by insurance. Since this mutual waiver will preclude the
assignment of any such claim by subrogation (or otherwise) to an insurance
company (or any other person), Landlord and Tenant each agree to give each
insurance company which has issued, or in the future may issue, policies of
insurance, with respect to the items covered by this waiver, written notice of
the terms of this mutual waiver, and to have such insurance policies property
endorsed, if necessary, to prevent the invalidation of any of the coverage
provided by such insurance policies by reason of such mutual waiver. For the
purpose of the foregoing waiver, the amount of any deductible applicable to any
loss or damage shall be deemed covered by, and recoverable by the insured under
the insurance policy to which such deductible relates. In the event that Tenant
is permitted to and self-insures any risk which would have been covered by the
Insurance required to be carried by Tenant pursuant to Article XVI of the Lease,
or if Tenant falls to carry any insurance required to be carried by Tenant
pursuant to Article XVI of this Lease, then all loss or damage to Tenant, its
leasehold interest, its business, its property, the Premises or any additions or
improvements thereto or contents thereof shall be deemed covered by and
recoverable by Tenant under valid and collectible policies of insurance.
XVIII. LANDLORD'S INSURANCE.
Landlord shall maintain liability insurance and property insurance on the
Building in such amounts as Landlord reasonably elects, provided that during the
Lease Term. Landlord shall maintain standard so-called "all risk" property
insurance covering the Building in an amount
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equal to ninety percent (90%) of the replacement cost thereof (including
Leasehold Improvements approved by Landlord) at the time in question. The cost
of such insurance shall be included as a part of the Basic Costs, and payments
for losses and recoveries thereunder shall be made solely to Landlord or the
Mortgagees of Landlord as their interests shall appear.
XIX. CASUALTY DAMAGE.
A. If the Premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall give prompt written notice thereof to Landlord.
In case the Building shall be so damaged that in Landlord's reasonable
judgment, substantial alteration or reconstruction of the Building
shall be required (whether or not the Premises has been damaged by
such casualty) or in the event Landlord will not be permitted by
applicable law to rebuild the Building in substantially the same form
as existed prior to the fire or casualty or in the event the Premises
has been materially damaged and there is less than two (2) years of
the Lease Term remaining on the date of such casualty or in the event
any Mortgagee should require that the insurance proceeds payable as a
result of a casualty be applied to the payment of the mortgage debt or
in the event of any material uninsured loss to the Building, Landlord
may, at its option, terminate this Lease by notifying Tenant in
writing of such termination within sixty (60) days after the date of
such casualty. Such termination shall be effective as of the date of
fire or casualty, with respect to any portion of the Premises that was
rendered untenantable. and the effective date of termination specified
in Landlord's notice, with respect to any portion of the Premises that
remained tenantable. If Landlord does not elect to terminate this
Lease, Landlord shall commence and proceed with reasonable diligence
to restore the building (provided that Landlord shall not be required
to restore any unleased premises in the Building) and the Leasehold
Improvements (but excluding any improvements, alterations or additions
made by Tenant in violation of this Lease) located within the
Premises, if any, which Landlord has insured or was obligated to
insure to substantially the same condition they were in immediately
prior to the happening of the casualty. Notwithstanding the
foregoing, Landlord's obligation to restore the Building, and the
Leasehold Improvements, if any, shall not require Landlord to expend
for such repair and restoration work more than the insurance proceeds
actually received by the Landlord as a result of the casualty (or
which would have been received had Landlord insured the Property as
required herein): provided that if Landlord does not have sufficient
proceeds to substantially complete the restoration of the Leasehold
Improvements in the Premises and Landlord elects not to fund any
shortfall, Landlord shall so notify Tenant and Tenant, within tan (10)
days thereafter, shall have the right to terminate this Lease by the
giving of written notice to Landlord. When repairs to the Premises
have been completed by Landlord, Tenant shall complete the restoration
or replacement of all Tenant's Property necessary to permit Tenant's
reoccupancy of the Premises, and Tenant shall present Landlord with
evidence satisfactory to Landlord of Tenant's ability to pay such
costs prior to Landlord's commencement of repair and restoration of
the Premises. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in
any way from such damage or the repair thereof, except that, subject
to the provisions of the next sentence, Landlord shall allow Tenant a
fair diminution of Rent on a per them basis during the time and to the
extent any damage to the Premises causes the Premises to be rendered
untenantable and not used by Tenant. If the Promises or any other
portion of the Building is damaged by fire or other casualty resulting
from the negligence of Tenant or any Tenant Related Parties, the Rent
hereunder shall not be diminished during any period during which the
Premises, or any portion thereof, is untenantable (except to the
extent Landlord is entitled to be reimbursed by the proceeds of any
rental interruption insurance), and Tenant shall be liable to Landlord
for the cost of the repair and restoration of the Building caused
thereby to the extent such cost and expense is not covered by
insurance proceeds. Landlord and Tenant hereby waive the provisions
of any law from time to time in effect during the Lease Term relating
to the effect upon leases of partial or total destruction of leased
property. Landlord and Tenant agree that their respective
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rights in the event of any damage to or destruction of the Premises
shall be those specifically set forth herein.
B. Notwithstanding anything in this Article XIX to the contrary, if all
or any portion of the Premises shall be made untenantable by a fire or
other casualty, Landlord shall, with reasonable promptness (but not to
exceed ninety (90) days following the date of the casualty), cause an
architect or general contractor selected by Landlord to estimate the
amount of time required to substantially complete repair and
restoration of the Premises and make the Premises tenantable again,
using standard working methods (the "Completion Estimate"). If the
Completion Estimate indicates that the Premises cannot be made
tenantable within nine (9) months from the date of the Completion
Estimate, either party shall have the right to terminate this Lease by
giving written notice to the other of such election within ten (10)
days after its receipt of the Completion Estimate. Tenant, however.
shall not have the right to terminate this Lease in the event that the
fire or casualty in question was caused by the negligence or
intentional misconduct of Tenant or any Tenant Related Par-ties. If
the Completion Estimate indicates that the Premises can be made
tenantable within nine (9) months from the date the repair and
restoration is started and Landlord has not otherwise exercised its
right to terminate the Lease pursuant to the terms hereof, or if the
Completion Estimate indicates that the Premises cannot be made
tenantable within nine (9) months but neither party terminates this
Lease pursuant to this Article XIX, Landlord shall proceed with
reasonable promptness to repair and restore the Premises.
XX. DEMOLITION.
INTENTIONALLY OMITTED.
XXI. CONDEMNATION.
If (a) the whole or any substantial part of the Premises or (b) any portion
of the Building or Property which would leave the remainder of the Building
unsuitable for use as an office building comparable to its use on the
Commencement Date, shall be taken or condemned for any public or quasi-public
use under governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, then Landlord may, at its
option, terminate this Lease effective as of the date the physical taking of
said Premises or said portion of the Building or Property shall occur.
Notwithstanding the foregoing, if the whole or any substantial part of the
Premises shall be taken or condemned for any public or quasi-public use under
governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof, Tenant shall also have the right to terminate
this Lease effective as of the date the physical taking of the Premises occurs.
Such right to terminate shall be exercised by written notice to Landlord within
thirty (30) days after the date on which Tenant is first notified of the taking.
In the event this Lease is not terminated, the Rentable Area of the Building,
the Rentable Area of the Premises and Tenant's Pro Rata Share shall be
appropriately adjusted-in addition, Rent for any portion of the Premises so
taken or condemned shall be abated during the unexpired term of this Lease
effective when the physical taking of said portion of the Premises shall occur.
All compensation awarded for any such taking or condemnation, or sale proceeds
in lieu thereof, shall be the property of Landlord, and Tenant shall have no
claim thereto, the same being hereby expressly waived by Tenant, except for any
portions of such award or proceeds which are specifically allocated by the
condemning or purchasing party for the taking of or damage to trade fixtures of
Tenant, which Tenant specifically reserves to itself. In addition, Tenant may
file a claim at its sole cost and expense and receive an award for the Tenants
Property and Tenants reasonable relocation expenses, provided the filing of any
claim for relocation expenses does not adversely affect or diminish the award
which would otherwise have been received by Landlord had Tenant not filed such a
claim and received such award.
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XXII. EVENTS OF DEFAULT
The following events shall be deemed to be events of default under this
Lease:
A. Tenant shall fail to pay When due any Base Rental. Additional Base
Rental or other Rent under this Lease and such failure shall continue
for three (3) Business Days after written notice from Landlord
(hereinafter sometimes referred to as a "Monetary Default).
B. Any failure by Tenant (other than a Monetary Default) to comply with
any term, provision or covenant of this Lease, including, without
limitation, the rules and regulations, which failure is not cured
within thirty (30) days after delivery to Tenant of written notice of
the occurrence of such failure (or such longer period of time as may
be reasonably necessary to cure (not to exceed 90 days), provided
that Tenant commences to cure such default within ten (10) days after
notice from Landlord and, from time to time upon request of Landlord,
furnishes Landlord with evidence that demonstrates, in Landlord's
reasonable judgment, that Tenant is diligently pursuing a course that
will remedy such failure), provided that if any such failure creates
a hazardous condition, such failure must be cured immediately.
Notwithstanding the foregoing, if Tenant fails to comply with any
monetary or material provision or covenant of this Lease, including,
without limitation, Tenant's obligation to pay Rent when due, on
three (3) occasions during any twelve (12) month period, and Landlord
has given Tenant written notice of each such violations any
subsequent violation of such provision or covenant shall be
considered to be an incurable default by Tenant.
C. Tenant or any Guarantor shall become insolvent, or shall make a
transfer in fraud of creditors, or shall commit an act of bankruptcy
or shall make an assignment for the benefit of creditors, or Tenant
or any Guarantor shall admit in writing its inability to pay its
debts as they become due.
D. Tenant or any Guarantor shall file a petition under any section or
chapter of the United States Bankruptcy Code, as amended, pertaining
to bankruptcy, or under any similar law or statute of the United
States or any State thereof, or Tenant or any Guarantor shall be
adjudged bankrupt or involvement in proceedings filed against Tenant
or any Guarantor thereunder, or a petition or answer proposing the
adjudication of Tenant or any Guarantor as a debtor or its
reorganization under any present or future federal or state
bankruptcy or similar law shall be filed in any court and such
petition or answer shall not be discharged or denied within
sixty(60)days after the filing thereof.
E. A receiver or trustee shall be appointed for all or substantially all
of the assets of Tenant or any Guarantor or of the Premises or of any
of Tenant's Property located thereon in any proceeding brought by
Tenant or any Guarantor, or any such receiver or trustee shall be
appointed in any proceeding brought against Tenant or any Guarantor
and shall not be discharged within sixty (60) days after such
appointment or Tenant or such Guarantor shall consent to or acquiesce
in such appointment.
F. The leasehold estate hereunder shall be taken on execution or other
process of law or equity in any action against Tenant.
G. Tenant shall abandon any substantial portion of the Premises without
the prior written permission of Landlord.
H. INTENTIONALLY OMITTED.
I. The liquidation, termination, dissolution. forfeiture of right to do
business, or death of Tenant or any Guarantor.
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J. Tenant is in default beyond any notice and cure period under any other
lease with Landlord.
XXIII. REMEDIES.
A. Upon the occurrence of any event or events of default under this
Lease, Landlord shall have the option to pursue any one or more of the
following remedies without any notice (except as expressly prescribed
in Article XXII above) or demand whatsoever (and without limiting the
generality of the foregoing, Tenant hereby specifically waives notice
and demand for payment of Rent or other obligations due [except as
expressly prescribed in Article XXII above] and waives any and all
other notices or demand requirements imposed by applicable law):
1. Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to surrender
the Premises upon termination of the Lease hereunder, Landlord
may without prejudice to any other remedy which it may have,
enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying said
Promises, or any part thereof, and Tenant hereby agrees to pay to
Landlord on demand the amount of all loss and damage, including
consequential damage, which Landlord may suffer by reason of such
termination. whether through inability to relet the Promises on
satisfactory terms or otherwise, specifically including but not
limited to all Costs of Reletting (hereinafter defined) and any
deficiency that may arise by reason of any reletting or failure
to relet.
2. Enter upon and take possession of the Premises and expel or
remove Tenant or any other person who may be occupying said
Premises, or any part thereof, without having any civil or
criminal liability therefor and without terminating this Lease.
Landlord may (but shall be under no obligation to) relet the
Premises or any part thereof for the account of Tenant, in the
name of Tenant or Landlord or otherwise, without notice to Tenant
for such term or terms which may be greater or less than the
period which would otherwise have constituted the balance of the
Lease Term and on such conditions (which may include concessions,
free rent and alterations of the Premises) and for such uses as
Landlord in its absolute discretion may determine, and Landlord
may collect and receive any rents payable by reason of such
reletting. Tenant agrees to pay Landlord on demand all Costs of
Reletting and any deficiency that May arise by reason of such
reletting or failure to relet. Landlord shall not be responsible
or liable for any failure to relet the Premises or any part
thereof or for any failure to collect any Rent due upon any such
reletting. No such re-entry or taking of possession of the
Premises by Landlord shall be construed as an election on
Landlord's part to terminate this Lease unless a written notice
of such termination is given to Tenant.
3. Enter upon the Premise$ without having any civil or criminal
liability therefor, and do whatever Tenant is obligated to do
under the terms of this Lease. and Tenant agrees to reimburse
Landlord on demand for any expense which Landlord may incur in
thus affecting compliance with Tenant's obligations under this
Lease together with interest at the lesser of a per annum rate
equal to: (a) the Maximum Rate. or (b) the Prime Rate plus five
percent (5%).
4. In order to regain possession of the Premises and to deny Tenant
access thereto in any instance in which Landlord has terminated
this Lease or Tenant's right to possession, or to limit access to
the Premises in accordance with local law in the event of a
default by Tenant, Landlord or its agent may, at the expense and
liability of the Tenant, alter or change any or all locks or
other security devices controlling access to the Premises
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without posting or giving notice of any kind to Tenant. Landlord
shall have no obligation to provide Tenant a key or grant Tenant
access to the Premises so long as Tenant is in default under this
Lease. Tenant shall not be entitled to recover possession of the
Premises, terminate this Lease, or recover any actual,
incidental, consequential, punitive, statutory or other damages@
or award of attorneys' fees, by reason of Landlord's alteration
or change of any lock or other security device. Landlord may,
without notice, remove and either dispose of or store, at
Tenant's expense, any property belonging to Tenant that remains
in the Premises after Landlord has regained possession thereof.
5. Terminate this Lease, in which event. Tenant shall immediately
surrender the Premises to Landlord and pay to Landlord the sum
of: (a) all Rent accrued hereunder through the date of
termination, and, upon Landlord's determination thereof, (b) an
amount equal to., the total Rent that Tenant would have been
required to pay for the remainder of the Lease Term discounted to
present value at the Prime Rate then in effect, minus the then
present fair rental value of the Premises for the remainder of
the Lease Term, similarly discounted, after deducting all
anticipated Costs of Reletting (as defined below).
B. For purposes of this Lease, the term "Costs of Reletting" shall mean
all costs and expenses incurred by Landlord in connection with the
reletting of the Premises, including without limitation, the cost of
cleaning, renovation, repairs, decoration and alteration of the
Premises for a new tenant or tenants, advertisement, marketing,
brokerage and legal fees (if and to the extent permitted by law), the
cost of protecting or caring for the Premises while vacant, the cost
of removing and storing any property located on the Premises, any
increase in insurance premiums caused by the vacancy of the Premises
and any other out-of-pocket expenses incurred by Landlord including
tenant incentives, allowances and inducements.
C. Except as otherwise herein provided, no repossession or re-entering of
the Premises or any part thereof pursuant to Article XXIII hereof or
otherwise shall relieve Tenant or any Guarantor of its liabilities and
obligations hereunder, all of which shall survive such repossession or
re-entering. Notwithstanding any such repossession or re-entering by
reason of the occurrence of an event of default. Tenant will pay to
Landlord the Rent required to be paid by Tenant pursuant to this
Lease.
D. No right or remedy herein Conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy, and each and
every right and remedy shall be cumulative and in addition to any
other right or remedy given hereunder or. now or hereafter existing by
agreement, applicable law or in equity. In addition to other remedies
provided in this Lease, Landlord shall be entitled, to the extent
permitted by applicable law, to injunctive relief, or to a decree
compelling performance of any of the covenants, agreements, conditions
or provisions of this Lease, or to any other remedy allowed to
Landlord at law or in equity. Forbearance by Landlord to enforce one
or more of the remedies herein provided upon an event of default shall
not be deemed or construed to constitute a waiver of such default.
E. This Article xxiii shall be enforceable to the maximum extent such
enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby render
unenforceable any other portion.
XXIV. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO. THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD HEREUNDER) TO TENANT SHALL
BE LIMITED TO THE INTEREST OF LANDLORD IN
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THE BUILDING, AND TENANT AGREES TO LOOK SOLELY TO LANDLORD'S INTEREST IN THE
BUILDING FOR THE RECOVERY OF ANY JUDGMENT OR AWARD AGAINST THE LANDLORD, IT
BEING INTENDED THAT NEITHER LANDLORD NOR ANY MEMBER, PRINCIPAL, PARTNER,
SHAREHOLDER, OFFICER, DIRECTOR OR BENEFICIARY OF LANDLORD SHALL BE PERSONALLY
LIABLE FOR ANY JUDGMENT OR DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO
THE FILING OF ANY SUIT FOI@ AN ALLEGED DEFAULT By LANDLORD HEREUNDER, IT SHALL
GIVE LANDLORD AND ALL MORTGAGEES WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR
DEED OF TRUST LIENS ON THE PROPERTY, BUILDING OR PREMISES NOTICE AND REASONABLE
TIME TO CURE SUCH ALLEGED DEFAULT BY LANDLORD. WITHOUT LIMITING THE FOREGOING,
IN NO EVENT SHALL LANDLORD OR ANY MORTGAGEES OR LANDLORD RELATED PARTIES EVER BE
LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR ANY LOST PROFITS OF
TENANT.
XXV. NO WAIVER.
Failure of Landlord to declare any default immediately upon its occurrence,
or delay in taking any action in connection with an event of default shall not
constitute a waiver of such default. nor shall it constitute an estoppel against
Landlord, but Landlord shall have the right to declare the default at any time
and take such action as is lawful or authorized under this Lease. Failure by
Landlord to enforce its rights with respect to any one default shall not
constitute a waiver of its rights with respect to any subsequent default.
Receipt by Landlord of Tenant's keys to the Premises shall not constitute an
acceptance or surrender of the Premises.
XXVI. EVENT OF BANKRUPTCY.
In addition to, and in no way limiting the other remedies set forth herein,
Landlord and Tenant agree that if Tenant ever becomes the subject of a voluntary
or involuntary bankruptcy, reorganization, composition, or other similar type
proceeding under the federal bankruptcy laws, as now enacted or hereinafter
amended, then:
A. "Adequate protection" of Landlord's Interest in the Premises pursuant
to the provisions of Section 361 and 363 (or their successor
sanctions) of the Bankruptcy Code, 11 U.S.C. Section 101 et seq.,
(such Bankruptcy Code as amended from time to time being herein
referred to as the "Bankruptcy Code"), prior to assumption and/or
assignment of the Lease by Tenant shall include, but not be limited to
all (or any part) of the following:
1. the continued payment by Tenant of the Base Rental and all other
Rent due and owing hereunder and the performance of all other
covenants and obligations hereunder by Tenant;
2. the furnishing of an additional/new security deposit by Tenant in
the amount of three (3) times the then current monthly Base
Rental.
B. "Adequate assurance of future performance" by Tenant and/or any
assignee of Tenant pursuant to Bankruptcy Code Section 365 will
include (but not be limited to) payment of an additional new Security
Deposit in the amount of three (3) times, the then current monthly
Base Rental payable hereunder.
C. Any per-son or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code, shall be deemed without further act
or deed to have assumed all of the obligations of Tenant arising under
this Lease on and after the effective date of such assignment. Any
such assignee shall, upon demand by Landlord, execute and deliver to
Landlord an instrument confirming such assumption of liability.
D. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of the Landlord under this Lease,
whether or not expressly
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denominated as "Rent," shall constitute "rent" for the purposes of
Section 502(b) (6) of the Bankruptcy Code.
E. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise to be delivered tin Landlord
(including Base Rentals and other Rent hereunder), shall be and remain
the exclusive property of Landlord and shall not constitute property
of Tenant or of the bankruptcy estate of Tenant. Any and all monies
or other considerations constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be held in
trust by Tenant or Tenant's bankruptcy, estate for the benefit of
Landlord and shall be promptly paid to or turned over to Landlord.
F. If Tenant assumes this Lease and proposes to assign the same pursuant
to the provisions of the Bankruptcy Code to any person or entity who
shall have made a bona fide offer to accept an assignment of this
Lease on terms acceptable to the Tenant, then notice of such proposed
offer/assignment, selling forth: (1) the name and address of such
person or entity, (2) all of the terms and conditions of such offer,
and (3) the adequate assurance to be provided Landlord to assure such
person's or entity's future performance under the Lease, shall be
given to Landlord by Tenant no later than twenty (20) days after
receipt by Tenant, but in any event no later than ten (10) days prior
to the date that Tenant shall make application to a court of competent
jurisdiction for authority and approval to enter into such assumption
and assignment. and Landlord shall thereupon have the prior right and
option, to be exercised by notice to Tenant given at an time prior to
the effective date of such proposed assignment, to accept an
assignment of this Lease upon the same terms and conditions and for
the same consideration, if any, as the bona fide offer made by such
persons or entity, less any brokerage commission which may be payable
out of the consideration to be paid by such person for the assignment
of this Lease.
G. To the extent permitted by law, Landlord and Tenant agree that this
Lease is a contract under which applicable law excuses Landlord from
accepting performance from (or rendering performance to) any person or
entity other than Tenant within the meaning of Sections 365(c) and
365(e)(2) of the Bankruptcy Code.
XXVII. WAIVER OF JURY TRIAL.
Landlord and Tenant hereby waive any right to a trial by jury in any action
or proceeding based upon, or related to, the subject matter of this Lease. This
waiver is knowingly, intentionally, and voluntarily made by Tenant, and Tenant
acknowledges that neither Landlord nor any person acting on behalf of Landlord
has made any representations of fact to induce this waiver of trial by jury or
in any way to modify or nullify its effect. Tenant, further acknowledges that
it has been represented (or has had the opportunity to be represented) in the
signing of this Lease and in the making. of this waiver by independent legal
counsel, selected of its own free will, and that it has had the opportunity to
discuss this waiver with counsel.
XXVIII. RELOCATION.
Landlord, at its expense at any time before or during the Lease Term, shall
be entitled to cause Tenant to relocate from the Premises to space containing
approximately the same Rentable Area as the Premises (the "Relocation Space")
within the Building or adjacent buildings within the same project at any time
upon sixty (60) days' prior written notice to Tenant, provided that the
Relocation Space shall be located on or above the twelfth (12th) floor.
Landlord agrees to reimburse Tenant for all reasonable out-of-pocket costs
incurred by Tenant in connection with the Relocation and not paid directly by
Landlord, including, but not limited to, the cost of phone and data cabling,
moving. reprinting existing stationery and business cards and similar items of
expense. Such a relocation shall not affect this Lease except that from and
after the date of such relocation, "Premises" shall refer to the Relocation
Space into which Tenant has been moved, rather than the original Premises as
herein defined, and the Base Rental shall be adjusted so that
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immediately following such relocation the Base Rental for the Relocation Space
per annum on a per square foot of Rentable Area basis shall be the same as the
Base Rental per annum immediately prior to such relocation for the original
Premises on a per square foot of Rentable Area basis. Tenant's Pro Rata Share
shall also be adjusted in accordance with the formula set forth in this Lease.
XXIX. HOLDING OVER.
In the event of holding over by Tenant after expiration or other
termination of this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Articles XXII and XXIII hereof, occupancy of the Premises subsequent to such
termination or expiration shall be that of a tenancy at sufferance and in no
event for month-to-month or year-to-year. Tenant shall, throughout the entire
holdover period, be subject to all the terms and provisions of this Lease and
shall pay for its use and occupancy an amount (on a per month basis without
reduction for any partial months during any such holdover) equal to one hundred
fifty percent (150%) of the sum of the Base Rental and Additional Base Rental
due for the period immediately preceding such holding over, Provided that in no
event shall Base Rental and Additional Base Rental during the holdover period be
less than the fair market rental for the Premises. Notwithstanding the
foregoing, if such holding over continues for more than thirty (30) days,
effective as of the thirty first (31st) day, holdover rent shall increase to
200% of the sum of the Base Rental and Additional Base Rental due for the period
immediately preceding such holding over, No holding over by Tenant or payments
of money by Tenant to Landlord after the expiration of the term of this Lease
shall be construed to extend the Lease Term or prevent Landlord from recovery of
immediate possession of the Premises by summary proceedings or otherwise. In
addition to the obligation to pay the amounts set forth above during any such
holdover period, Tenant also shall be liable to Landlord for all damage,
including any consequential damage, which Landlord may suffer by reason of any
holding over by Tenant, and Tenant shall indemnify Landlord against any and all
claims made by any other tenant or prospective tenant against Landlord for delay
by Landlord in delivering possession of the Premises to such other tenant or
prospective tenant.
XXX. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
Tenant accepts this Lease subject and subordinate to any mortgage, deed of
trust, ground lease or other lien presently existing or hereafter arising upon
the Premises, or upon the Building and/or the Property and to any renewals,
modifications, refinancings and extensions thereof (any such mortgage, deed of
trust, lease or other lien being hereinafter referred to as a "Mortgage" and the
person or entity having the benefit of same being referred to hereinafter as a
"Mortgagee"), but Tenant agrees that any such Mortgagee shall have the right at
any time to subordinate such Mortgage to this Lease on such terms and subject to
such conditions as such Mortgages may deem appropriate in its discretion. This
clause shall be self-operative and no further instrument of subordination shall
be required. However, Landlord is hereby irrevocably vested with full power and
authority to subordinate this Lease to any Mortgage, and Tenant agrees upon
demand to execute such further instruments subordinating this Lease,
acknowledging the subordination of this Lease or attorning to the holder of any
such Mortgage as Landlord may request. The terms of this Lease are subject to
approval by the Landlord's existing lender(s) and any lender(s) who, at the time
of the execution of this Lease, have committed or are considering committing to
Landlord to make a loan secured by all or any portion of the Property, and such
approval is a condition precedent to Landlord's obligations hereunder.
Notwithstanding the foregoing, as a condition precedent to the subordination of
this Lease, Landlord shall be required to provide Tenant with a non-disturbance,
subordination, and attornment agreement in favor of Tenant from any Mortgagee
who comes into existence after the Commencement Date. Such non-disturbance,
subordination, and attornment agreement in favor of Tenant shall provide that,
so long as Tenant is paying the rent' due under the Lease and is not otherwise
in default under the Lease, its right to possession and the other terms of the
Lease shall remain in full force and effect. Such non-disturbance,
subordination, and attornment agreement may include additional time on behalf of
the Mortgagee to cure defaults of the Landlord and provide that (a) neither
Mortgagee nor any successor-in-interest shall be bound by (i) any payment of the
Base Rental, Additional Base Rental, or other sum due hereunder for more than
one (1) month in advance or (ii) any amendment or modification of the Lease made
without the express written consent of Mortgagee or any
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successor-in-interest; (b) neither Mortgagee nor any successor-in-interest will
be liable for (i) any act or omission or warranties of any prior landlord
(including Landlord), (ii) the breach of any warranties or obligations relating
to construction of improvements on the property or any tenant finish work
performed or to have been performed by any prior landlord (including Landlord),
or (iii) the return of any security deposit, except to the extent such deposits
have been received by Mortgagee; and (c) neither Mortgagee nor any successor-in-
interest shall be subject to any offsets or defenses which Tenant might have
against any prior landlord (including Landlord). In the event that Tenant shall
fail to execute any subordination or other agreement required by this Article
within ten (10) days after request by Landlord, following an additional five (6)
day notice. such failure shall be considered to be an event of default by Tenant
entitling Landlord to exercise its rights and remedies under Article XXIII of
this Lease. if any person shall succeed to all or part of Landlord's interests
in the Premises whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, termination of lease or otherwise, and if and as so requested or
required by such successor-in-interest, Tenant shall, without charge, attorn to
such successor-in-interest. Tenant agrees that it will from time to time upon
request by Landlord and, within five (5) days of the date of such request,
execute and deliver to such persons as Landlord shall request an estoppel
certificate or other similar statement in recordable form certifying that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as so modified),
stating the dates to which Rent and other charges payable under this Lease have
been paid, stating that Landlord is not in default hereunder (or if Tenant
alleges a default stating the nature of such alleged default) and further
stating such other matters as Landlord shall reasonably require.
XXXI. ATTORNEYS' FEES.
In the event that Landlord should retain counsel and/or institute any suit
against Tenant for violation of or to enforce any of the covenants or conditions
of this Lease, or should Tenant institute any suit against Landlord for
violation of any of the covenants or conditions of this Lease, or should either
party intervene in any suit in which the other is a party to enforce or protect
its interest or rights hereunder, the prevailing party in any such suit shall be
entitled to all of its costs, expenses and reasonable fees of its attorneys) (if
and to the extent permitted by law) in connection therewith.
XXXII. NOTICE.
Whenever any demand, request, approval, consent or notice ("Notice") shall
or may be given to either of the parties by the other, each such Notice shall be
in writing and shall be sent by registered or certified mail with return receipt
requested, or sent by overnight courier service (such as Federal Express) at the
respective addresses of the parties for notices as set forth in Section I.A.10.
of this Lease, provided that if Tenant has vacated the Premises, Landlord may
serve Notice by any manner permitted by law in addition to serving notice to
Tenant's home office in Connecticut as set forth in Section I.A.10 above. Any
Notice under this Lease delivered by registered or certified mail shall be
deemed to have been given, delivered, received and effective on the earlier of
(a) the third day following the day on which the same shall have been mailed
with sufficient postage prepaid or (b) the delivery date indicated on the return
receipt. Notice sent by overnight courier service shall be deemed given,
delivered, received and effective upon the day after such notice is delivered to
or picked up by the overnight courier service. Either party may, at any time,
change its Notice Address by giving the other party Notice stating the change
and setting forth the new address.
XXXIII. LANDLORD'S LIEN.
Intentionally Omitted, provided that the deletion of this Article shall not
be construed to be a waiver of Landlord's lien rights as provided by law.
XXXIV. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about the
Building. Landlord specifically excepts and reserves to itself the use of any
roofs, the exterior portions. of the Premises, all rights to the land and
improvements below the improved floor level of the Premises,
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the improvements and air rights above the Premises and the improvements and air
rights located outside the demising walls of the Premises, and such areas within
the Premises as are required for installation of utility lines and other
installations required to serve any occupants of the Building and the right to
maintain and repair the same, and no rights with respect thereto are conferred
upon Tenant unless otherwise specifically provided herein. Landlord further
reserves to itself the right from time to time: (a) to change the Building's
name or street address; (b) to install, fix and maintain signs on the exterior
and interior of the Building; (c) to designate and approve window coverings; (d)
to make any decorations, alterations, additions, improvements to the Building,
or any part thereof (including the Premises) which Landlord shall desire, or
deem necessary for the safety, protection, preservation or improvement of the
Building, or as Landlord may be required to do by law; (e) to have access to the
Premises to perform its duties and obligations and to exercise its rights under
this Lease; (f) to retain at all times and to use pass-keys to all locks within
and into the Premises; (g) to approve the weight, size, or location of heavy
equipment, or articles in and about the Premises; (h) to close or restrict
access to the Building at all times other than Normal Business Hours subject to
Tenant's right to admittance at all times under such regulations as Landlord may
prescribe from time to time, or to close (temporarily or permanently) any of the
entrances to the Building; (i) to change the arrangement and/or location of
entrances of passageways, doors and doorways, corridors, elevators, stairs,
toilets and public parts of the Building; (j) if Tenant has abandoned the
Premises during the last six (6) months of the Lease Term, to perform additions,
alterations and improvements to the Premises in connection with a reletting or
anticipated reletting thereof (as opposed to normal entry for repairs or
maintenance in the ordinary course) without being responsible or liable for the
value or preservation of any then existing improvements to the Premises: in
which event Tenant's obligation to pay any Base Rental or Additional Base Rental
for such period of time after Landlord's entry shall be deemed abated; and (k)
to grant to anyone the exclusive right to conduct any business or undertaking in
the Building, provided that the granting of such exclusive rights shall not: (1)
restrict or interfere with Tenant's ability to conduct its business in the
Premises; or (2) require Tenant to do business with any other Building tenant.
Landlord, in accordance with Article XII hereof, shall have the right to enter
the Premises in connection with the exercise of any of the rights set forth
herein and such entry into the Premises and the performance of any work therein
shall not constitute a constructive eviction or entitle Tenant to any abatement
or reduction of Rent by reason thereof.
XXXV. SURRENDER OF PROMISES.
At the expiration or earlier termination of this Lease or Tenant's right of
possession hereunder, Tenant shall remove all Tenant's Property from the
Premises, remove all Required Removables designated by Landlord and quit and
surrender the Premises to Landlord, broom clean, and in good order, condition
and repair, ordinary wear and tear excepted. If Tenant fails to remove any of
Tenant's Property within one (1) day after the termination of this Lease or
Tenant's right to possession hereunder, Landlord, at Tenant's sole cost and
expense. shall be entitled to remove and/or store such Tenant's Property and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay Landlord, upon demand, any and all
expenses caused by such removal and all storage charges against such property so
long as the same shall be in the possession of Landlord or under the control of
Landlord. In addition, if Tenant fails to remove any Tenant's Property from the
Premises or storage, as the case may be, within ten (10) days after written
notice from Landlord, Landlord, at its option, may deem all or any part of such
Tenant's Property to have been abandoned by Tenant and title thereof shall
immediately pass to Landlord.
XXXVI. MISCELLANEOUS.
A. If any term or provision of this Lease, or the application thereof to
any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and
enforced to the fullest extent permitted by law. This Lease
represents the result of negotiations between Landlord and Tenant,
each of which has been (or has had opportunity to be) represented by
counsel of its own selection, and neither of which has acted under
duress or compulsion, whether legal, economic or otherwise.
Consequently,
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Landlord and Tenant agree that the language in all parts of the Lease
shall in all cases be construed as a whole according to its fair
meaning and neither strictly for nor against Landlord or Tenant.
B. Tenant agrees not to record this Lease or any memorandum hereof
without Landlord's prior written consent,
C. This Lease and the rights and obligations of the parties hereto shall
be interpreted, construed, and enforced in accordance with the laws of
the state in which the Building is located.
D. Events of "Force Majeure" shall include strikes, riots, war, acts of
God, and shortages of labor or materials. Whenever a period of time
is herein prescribed for the taking of any action by Landlord or
Tenant, as the case may be, other than the payment of Rent or any
other sums due hereunder. such party shall not be liable or
responsible for, and there shall be excluded from the computation of
such period of time, any delays due to events of Force Majeure.
E. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations hereunder and in the Building
and Property referred to herein, and in such event and upon such
transfer Landlord shall be released from any further obligations
hereunder, and Tenant agrees to look solely to such successor in
interest of Landlord for the performance of such obligations.
F. Tenant hereby represents to Landlord that it has dealt directly with
and only with the Broker as a broker in connection with this Lease.
Tenant agrees to indemnify and hold Landlord and the Landlord Related
Parties harmless from all claims of any brokers claiming to have
represented Tenant in connection with this Lease. Landlord agrees to
indemnify and hold Tenant and the Tenant Related Parties harmless from
all claims of any brokers claiming to have represented Landlord in
connection with this Lease.
G. If there is more than one Tenant, or if the Tenant is comprised of
more than one person or entity, the obligations hereunder imposed upon
Tenant shall be joint and several obligations of all such parties. If
Tenant is a partnership, then each present and future partner shall be
personally bound by and upon all of the covenants, agreements, terms.
provisions and conditions set forth in this Lease on the part of
Tenant to be performed. in confirmation of the foregoing, Landlord may
(but without being required to do so) request (and Tenant shall duly
comply) that Tenant. at the time that Tenant admits any new partner to
its partnership, shallrequire each such new partner to execute an
agreement in form and substance satisfactory to Landlord whereby such
new partner shall agree to be personally bound by and upon all of the
covenants, agreements, terms, provisions and conditions of this Lease
on the part of Tenant to be performed, without regard to the time when
such new partner is admitted to partnership or when any obligations
under any such covenants, etc., accrue. All notices, payments, and
agreements given or made by, with or to any one of such persons or
entities shall be deemed to have been given or made by, with or to all
of them.
H. In the event Tenant is a corporation (including any form of
professional association), partnership (general or limited), or other
form of organization other than an individual (each such entity is
individually referred to herein as an "Organizational Entity"), then
Tenant hereby covenants, warrants and represents, (1) that such
individual is duly authorized to execute or attest and deliver this
Lease on behalf of Tenant in accordance with the organizational
documents of Tenant; (2) that this Lease is binding upon Tenant; (3)
that Tenant is duly organized and legally existing in the state of its
organization, and is qualified to do business in the state in which
the Premises is located; and (4) that the execution and delivery of
this Lease by Tenant will not result in any breach of. or constitute a
default under any mortgage, deed of trust, lease, loan, credit
agreement, partnership agreement
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or other contract or instrument to which Tenant is a party or by which
Tenant may be bound. If Tenant is an Organizational Entity, upon
request, Tenant will, prior to the Commencement Date, deliver to
Landlord true and correct copies of all organizational documents of
Tenant, including, without limitation, copies of an appropriate
resolution or consent of Tenant's board of directors or other
appropriate governing body of Tenant authorizing or ratifying the
execution and delivery of this Lease, which resolution or consent will
be duly certified to Landlord's satisfaction by an appropriate
individual with authority to certify such documents, such as the
secretary or assistant secretary or the managing general partner of
Tenant.
I. Tenant acknowledges that the financial capability of Tenant to perform
its obligations hereunder is material to Landlord and that Landlord
would not enter into this Lease but for its belief, based on its
review of Tenant's financial statements, that Tenant is capable of
performing such financial obligations. Tenant hereby represents,
warrants and certifies to Landlord that its financial statements
previously furnished to Landlord were at the time given true and
correct in all material respects and that there have been no material
subsequent, changes thereto as of the date of this Lease. At any time
during the Lease Term, Tenant shall provide Landlord, upon ten (10)
days' prior written notice from Landlord. with a current financial
statement and financial statement of the two (2) years prior to the
current financial statement year and such other information as
Landlord or its Mortgagee may request in order to create a "business
profile" of Tenant and determine Tenant's ability to fulfill its
obligations under this Lease. Such statement shall be prepared in
accordance with generally accepted accounting principles and. if. such
is the normal practice of Tenant, shall be audited by an independent
certified public accountants Notwithstanding the foregoing, if Tenant
is a publicly held corporation, Tenant's annual reports will satisfy
the requirement of this paragraph.
J. Except as expressly otherwise herein provided, with respect to all
required acts of Tenant, time is of the essence of this Lease. This
Lease shall create the relationship of Landlord and Tenant between the
parties hereto.
K. This Lease and the covenants and conditions herein contained shall
inure to the benefit of and be binding upon Landlord and Tenant and
their respective permitted successors and assigns.
L. Notwithstanding anything to the contrary contained in this Lease, the
expiration of the Lease Term, whether by lapse of time or otherwise,
shall not relieve Tenant from Tenant's obligations accruing prior to
the expiration of the Lease Term, and such obligations shall survive
any such expiration or other termination of the Lease Term.
M. The headings and titles to the paragraphs of this Lease are for
convenience only and shall have no affect upon the construction or
interpretation of any part hereof.
N. LANDLORD HAS DELIVERED A COPY OF THIS LEASE TO TENANT FOR TENANT'S
REVIEW ONLY, AND THE DELIVERY HEREOF DOES NOT CONSTITUTE AN OFFER TO
TENANT OR OPTION. THIS LEASE SHALL NOT BE EFFECTIVE UNTIL AN ORIGINAL
OF THIS LEASE EXECUTED BY BOTH LANDLORD AND TENANT AND AN ORIGINAL
GUARANTY, IF ANY, EXECUTED BY EACH GUARANTOR IS DELIVERED TO AND
ACCEPTED BY LANDLORD, AND THIS LEASE HAS BEEN APPROVED BY LANDLORD'S
MORTGAGEES, IF REQUIRED.
O. Quiet Enjoyment. Tenant shall, and may peacefully have, hold, and
---------------
enjoy the Premises, subject to the other terms of this Lease
(including, without limitation, Article XXX hereto, provided that
Tenant pays the Rent herein recited to be paid by Tenant and performs
all of Tenant's covenants and agreements herein contained. This
covenant and any and all other covenants of Landlord shall be binding
upon
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Landlord and any successors only during its or their respective
periods of ownership of the Landlord's interest hereunder.
XXXVII. ENTIRE AGREEMENT.
This Lease Agreement, including the following Exhibits:
Exhibit A - Outline and Location of Premises
---------
Exhibit B - Rules and Regulations
---------
Exhibit C - Intentionally Omitted
---------
Exhibit D - Work Letter Agreement
---------
Exhibit E - Additional Provisions
---------
Exhibit F - Letter of Credit
---------
constitutes the entire agreement between the parties hereto with respect to
the subject matter of this Lease and supersedes all prior agreements and
understandings between the parties related to the Premises, including all
lease proposals, letters of intent and similar documents. TENANT EXPRESSLY
ACKNOWLEDGES AND AGREES THAT LANDLORD HAS NOT MADE AND IS NOT MAKING, AND
TENANT, IN EXECUTING AND DELIVERING THIS LEASE, 13 NOT RELYING UPON, ANY
WARRANTIES, REPRESENTATIONS, PROMISES OR STATEMENTS, EXCEPT TO THE EXTENT
THAT THE SAME ARE EXPRESSLY SET FORTH IN THIS LEASE. ALL UNDERSTANDINGS AND
AGREEMENTS HERETOFORE MADE BETWEEN THE PARTIES ARE MERGED IN THIS LEASE
WHICH ALONE FULLY AND COMPLETELY EXPRESSES THE AGREEMENT OF THE PARTIES,
NEITHER PARTY RELYING UPON ANY STATEMENT OR REPRESENTATION NOT EMBODIED IN
THIS LEASE. THIS LEASE MAY BE MODIFIED ONLY BY A WRITTEN AGREEMENT SIGNED
BY LANDLORD AND TENANT. LANDLORD AND TENANT EXPRESSLY AGREE THAT THERE ARE
AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY,
SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING
OUT OF THIS LEASE, ALL OF WHICH ARE HEREBY WAIVED BY TENANT, AND THAT THERE
ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS
LEASE.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
WITNESS/ATTEST LANDLORD: EOP OPERATING LIMITED
PARTNERSHIP, A DELAWARE
/s/ Diane Pantaleo LIMITED PARTNERSHIP
- - ----------------------
By: Equity Office Properties Trust, a
Name: Diane Pantaleo
-----------------
Maryland real estate investment trust,
its managing general partner
Name (print):_________
By: /s/ Arvid Povilaitis
---------------------------------
Name: Arvid Povilaitis
-------------------------------
Title: Sr. Vice President
------------------------------
WITNESS/ATTEST: TENANT: INFORMATION MANAGEMENT ASSOCIATES,
INC., A CONNECTICUT CORPORATION
/s/ Christy L. Tomas
- - ----------------------
By: /s/ Michael T. Dylag
Name: Christy L. Tomas --------------------------------------
-----------------
Name: Michael T. Dylag
------------------------------------
Name (print):_________
Title: V. P. Finance & Administration
-----------------------------------
35
<PAGE>
EXHIBIT A
PREMISES
--------
This Exhibit is attached to and made a part of the Lease dated ____________
19__, by and between EOP OPERATING LIMITED PARTNERSHIP, A DELAWARE LIMITED
PARTNERSHIP ("Landlord") and INFORMATION MANAGEMENT ASSOCIATES, INC., A
CONNECTICUT CORPORATION ("Tenant") for space in the Building located at 101
North Wacker Drive, Chicago, Illinois 60606.
37
<PAGE>
EXHIBIT B
BUILDING RULES AND REGULATIONS
------------------------------
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage associated therewith (if any), the
Property and the appurtenances thereto:
1. Sidewalks, doorways, vestibules. halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, lifter,
trash, or .material of any nature shall be placed, emptied, or thrown in
those areas. At no time shall Tenant permit Tenant's employees to loiter
in common areas or elsewhere in or about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Damage resulting to any such
fixtures or appliances from misuse by Tenant or its agents, employees or
invitees, shall be paid for by Tenant. and Landlord shall not in any case
be responsible therefor.
3. No signs, advertisements or notices shall be painted or affixed on or to
any windows, doors or other parts of the Building, except those of such
color, size, style and in such places as shall be first approved in writing
by Landlord. No nails, hooks or screws shall be driven or inserted into
any part of the Premises or Building except by the Building maintenance
personnel, nor shall any part of the Building be defaced by Tenant.
4. Landlord shall provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory listing all Tenants, and no other
directory shall be permitted unless previously consented to by Landlord in
writing.
5. Tenant shall not place any additional lack or locks on any door in the
Premises or Building without Landlord's prior written consent. A
reasonable number of keys to the locks on the doors in the Premises shall
be furnished by Landlord to Tenant at the cost of Tenant, and Tenant shall
not have any duplicate keys made. All keys shall be returned to Landlord
at the expiration or earlier termination of this Lease.
6. All contractors, contractors representatives, and installation technicians
performing work in the Building shall be subject to Landlord's prior
approval and shall be required to comply with Landlord's standard rules,
regulations, policies and procedures, as the same may be revised from time
to time. Tenant shall be solely responsible for complying with all
applicable laws, codes and ordinances pursuant to which said work shall be
performed. Notwithstanding anything to the contrary herein or in the Lease
contained, Landlord has no obligation to allow any particular
telecommunication service provider to have access to the Building or to
Tenant's premises. If Landlord permits such access, Landlord may condition
such access upon the payment to Landlord by the service provider of fees
assessed by Landlord in its sole discretion.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which require
the use of elevators, stairways, lobby areas, or loading dock areas, shall
be restricted to hours designated by Landlord. Tenant must seek Landlord's
prior approval by providing in writing a detailed listing of any such
activity. If approved by Landlord, such activity shall be under the
supervision of Landlord and performed in the manner stated by Landlord.
Landlord may prohibit any article, equipment or any other item from being
brought into the Building. Tenant is to assume all risk for damage to
articles moved and injury to any persons resulting from such activity. If
any equipment, property, and/or personnel of Landlord or of any other
tenant is damaged or injured as a result of or in connection with such
activity, Tenant shall be solely liable for any and all damage or loss
resulting therefrom.
38
<PAGE>
8. Landlord shall have the power to prescribe the weight and position of safes
and other heavy equipment or items, which in all cases shall not in the
opinion of Landlord exceed acceptable floor loading and weight distribution
requirements. All damage done to the Building by the installation,
maintenance, operation, existence or removal of any property of Tenant
shall be repaired at the expense of Tenant.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any
way with other tenants or persons having business With them; (2) solicit
business or distribute, or cause to be distributed, in any portion of the
Building any handbills, promotional materials or other advertising; or (3)
conduct or permit any other activities in the Building that might
constitute a nuisance.
11. No animals, except seeing eye dogs, shall be brought into or kept in, on or
about the Premises.
12. No inflammable, explosive or dangerous fluid or substance shall be used or
kept by Tenant in the Promises or Building. Tenant shall not without
Landlord's prior written consent, use, store, install, spill, remove,
release or dispose of within or about the Premises or any other portion of
the Property, any asbestos-containing materials or any solid, liquid or
gaseous material now or hereafter considered toxic or hazardous under the
provisions of 42 U.S.C. Section 9601 et seq. or any other applicable
environmental law which may now or hereafter be in effect. If Landlord
does give written consent, to Tenant pursuant to the foregoing sentence,
Tenant shall comply with all applicable laws, rules and regulations
pertaining to and governing such use by Tenant, and shall remain liable for
all costs of cleanup or removal in connection therewith.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which would injure the reputation or impair the present or future
value of the Promises or the Building; without limiting the foregoing,
Tenant shall not use or permit the Premises or any portion thereof to be
used for lodging, sleeping or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts affecting the Building or which would cause any work stoppage,
picketing, labor disruption or dispute, or any interference with the
business of Landlord or any other tenant or occupant of the Building or
With the rights and privileges of any person lawfully in the Building.
Tenant shall take any actions necessary to resolve any such work stoppage,
picketing, labor disruption, dispute or interference and shall have pickets
removed and, at the request of Landlord, immediately terminate at any time
any construction work being performed in the Premises giving rise to such
labor problems, until such time as Landlord shall have given its written
consent for such work to resume. Tenant shall have no claim for damages of
any nature against Landlord or any of the Landlord Related Parties in
connection therewith, nor shall the date of the commencement of the Term be
extended as a result thereof.
15. Tenant shall utilize the termite and pest extermination service designated
by Landlord to control termites and pests in the Premises. Except as
included in Basic Costs, Tenant shall bear the cost and expense of such
extermination services.
16. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, any electrical equipment which does not bear
the U/L (Underwriters Laboratories) seal of approval, or which would
overload the electrical system or any part thereof beyond its capacity for
proper. efficient and safe operation as determined by Landlord, taking into
consideration the overall electrical system and the Present and future
requirements therefor in the Building. Tenant shall not furnish any
cooling or heating to the Premises, including, without limitation, the use
of any electronic or gas heating devices, without Landlord's prior written
consent. Tenant shall not use more than its proportionate share of
telephone lines available to service the Building.
39
<PAGE>
17. Tenant shall not operate or permit to be operated on the Premises any coin
or token operated vending machine or similar device (including. without
limitation, telephones, lockers, toilets, scales, amusement devices and
machines for sale of beverages, foods, candy, cigarettes or other goods),
except for those vending machines or similar devices which are for the sole
and exclusive use of Tenant's employees, and then only if such operation
does not violate the lease of any other tenant of the Building.
18. Bicycles and other vehicles are not permitted inside or on the walkways
outside the Building, except in those areas specifically designated by
Landlord for such purposes.
19. Landlord may from time to time to time adopt appropriate systems and
procedures for the security or safety of the Building. its occupants, entry
and use, or its contents. Tenant, Tenant's agents, employees, contractors,
guests and invitees shall comply with Landlord's reasonable requirements
relative thereto.
20. Landlord shall have the right to prohibit the use of the name of the
Building or . any other publicity by Tenant that in Landlord's opinion may
tend to impair the reputation of the Building or its desirability for
Landlord or other tenants. Upon written notice from Landlord, Tenant will
refrain from and/or discontinue such publicity immediately.
21. Tenant shall carry out Tenant's permitted repair, maintenance, alterations,
and improvements in the Premises only during reasonable times agreed to in
advance by Landlord and in a manner which will not unreasonably interfere
with the rights of other tenants in the Building.
22. Canvassing, soliciting, and peddling in or about the Building is
prohibited. Tenant shall cooperate and use its best efforts to prevent the
same.
23. At no time shall Tenant permit or shall Tenant's agents, employees,
contractors, guests, or invitees smoke in any common area of the Building,
unless such common area has been declared a designated smoking area by
Landlord, or to allow any smoke from the Premises to emanate into the
common areas or any other tenant's premises. Landlord shall have the right
at any time to designate the Building as a non-smoking building.
24. Tenant shall observe Landlord's rules with respect to maintaining standard
window coverings at all windows in the Premises so that the Building
presents a . uniform exterior appearance. Tenant shall ensure that to the
extent reasonably practicable, window coverings are closed on all windows
in the Premises while they are exposed to the direct rays of the sun.
25. All deliveries to or from the' Premises shall be made only at . such times,
in the areas and through the entrances and exits designated for such
purposes by Landlord. Tenant shall not permit the process of receiving
deliveries to or from the Premises outside of said areas or in a manner
which may unreasonably interferes with the use by any other tenant of its
premises or of any common areas, any pedestrian use of such area, or any
use which is inconsistent with good business practice.
26. The work of cleaning personnel shall not be hindered by Tenant after 5:30
p.m., and such cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles necessary to prevent
unreasonable hardship to Landlord regarding cleaning service.
40
<PAGE>
EXHIBIT C
INTENTIONALLY OMITTED
---------------------
41
<PAGE>
EXHIBIT D
WORK LETTER
-----------
This Exhibit is attached to and made a Part of the Lease dated __________,
19__, by and between EOP OPERATING LIMITED PARTNERSHIP, A DELAWARE LIMITED
PARTNERSHIP ("Landlord") and INFORMATION MANAGEMENT ASSOCIATES, INC., A
CONNECTICUT CORPORATION ("Tenant") for space in the Building located at 101
North Wacker Drive, Chicago, Illinois 60606.
1. This Work Letter shall set forth the obligations of Landlord and Tenant
with respect to the preparation of the Premises for Tenant's occupancy,
There will be no Base Building or extra work performed by Landlord. All
improvements described in this Work Letter to be constructed in and upon
the Premises by Landlord are hereinafter referred to as the "Landlord
Work." It is agreed that construction of the Landlord Work will be
completed at Tenant's sole cost and expense, subject to the Allowance (as
defined below). Landlord shall enter into a direct contract for the
Landlord Work with a general contractor selected by Landlord. In addition,
Landlord shall have the right to select and/or approve of any
subcontractors used in connection with the Landlord Work. Landlord agrees
to select the lowest qualified bid from three (3) general contractors
selected by Landlord. In addition, the contract will contain a one (1)
year warranty on materials and labor.
2. Tenant shall be solely responsible for the timely preparation and
submission to Landlord of the final architectural, electrical and
mechanical construction drawings, plans and specifications (called "Plans")
necessary to construct the Landlord Work, which plans shall be' subject to
approval by Landlord and Landlord's architect and engineers and shall
comply with their requirements to avoid aesthetic or other conflicts with
the design and function of the balance of the Building. Tenant shall use
the mechanical planner designated by Landlord for the preparation of the
mechanical drawings. Tenant shall be responsible for all elements of the
design of Tenant's plans (including, without limitation, compliance with
law, functionality of design, the structural integrity of the design, the
configuration of the promises and the placement of Tenant's furniture,
appliances and equipment), and Landlord's approval of Tenant's plans shall
in no event relieve Tenant of the responsibility for such design. If
requested by Tenant, Landlord's architect will prepare the Plans necessary
for such construction at Tenant's cost. Whether or not the layout and
Plans are prepared with the help (in whole or in part) of Landlord's
architect, Tenant agrees to remain solely responsible for the timely
preparation and submission of the Plans and for all elements of the design
of such Plans and for all costs related thereto. Tenant has assured itself
by direct communication with the architect and engineers (Landlord's or its
own, as the case may be) that the final approved Plans can be delivered to
Landlord on or before September 21, 1998 (the "Plans Due Date"), provided
that Tenant promptly furnished complete information concerning its
requirements to said architect and engineers as and when requested by them.
Tenant covenants and agrees to cause said final, approved Plans to be
delivered to Landlord on or before said Plans Due Date and to devote such
time as may be necessary in consultation with said architect and engineers
to enable them to complete and submit the Plans within the required time
limit. (The word "architect" as used in this Exhibit D shall include an
interior designer or space planner.) Landlord agrees to respond promptly
to any requests by Tenant for approval of its plans or any changes thereto
and to review the bids for the Landlord Work promptly in order to
facilitate the performance of the Landlord Work. Such prompt response
shall be deemed to be not more than three (3) Business Days.
3. In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, Landlord, prior to commencing any construction
of Landlord Work, shall submit to Tenant a written estimate setting forth
the anticipated cost of the Landlord Work, including but not limited to
labor and materials, contractor's fees and permit fees. Within three (3)
Business Days thereafter, Tenant shall either notify Landlord in writing of
its approval of the cost estimate, or specify its objections thereto and
any desired changes . to the , Proposed Landlord Work. In the event Tenant
notifies Landlord of such objections
42
<PAGE>
and desired changes, Tenant shall work with Landlord to reach a mutually
acceptable alternative cost estimate.
4. In the event Landlord's estimate and/or the actual cost of construction
shall exceed the Allowance, if any (such amounts exceeding the Allowance
being herein referred to as the "Excess Costs"), Tenant shall pay to
Landlord such Excess Costs, plus any applicable state sales or use tax
thereon, upon demand. The statements of costs submitted to Landlord by
Landlord's contractors shall be conclusive for purposes of determining the
actual cost of the items described therein. The amounts payable by Tenant
hereunder constitute Rent payable pursuant to the Lease, and the failure to
timely pay same constitutes an event of default under the Lease.
5. If Tenant shall request any change, addition or alteration in any of the
Plans after approval by Landlord, Landlord shall have such revisions to the
drawings prepared, and Tenant shall reimburse Landlord for the cost
thereof, plus any applicable state sales or use tax thereon, upon demand.
Promptly upon completion of the revisions, Landlord shall notify Tenant in
writing of the increased cost which will be chargeable to Tenant by reason
of such change, addition or deletion. Tenant, within three (3) Business
Day, shall notify Landlord in writing whether it desires to proceed with
such change, addition or deletion. In the absence of such written
authorization, Landlord shall have the option to continue work on the
Premises disregarding the requested change, addition or alteration, or
Landlord may elect to discontinue work on the Premises until it receives
notice of Tenant's decision. In the event such revisions result in a
higher estimate of the cost of construction and/or higher actual
construction costs which exceed the Allowance, such increased estimate or
costs shall be deemed Excess Costs pursuant to Paragraph 4 hereof and
Tenant shall pay such Excess Costs, plus any applicable state sales or use
tax thereon, upon demand.
6. Following approval of the Plans and the payment by Tenant of the required
Portion of the Excess Costs, if any, Landlord shall cause the Landlord Work
to be constructed substantially in accordance with the approved Plans.
Landlord shall notify Tenant of substantial completion of the Landlord
Work.
7. Landlord agrees to provide Tenant with an allowance (the "Allowance") in an
amount not to exceed Four Hundred Five Thousand One Hundred Thirty and
00/100 Dollars ($405,130.00) (i.e., $29.00 per rentable square foot of the
Premises) to be applied toward the cost of the Plans and the Landlord Work
in the Premises. In the event the Allowance shall not be sufficient to
complete the Landlord Work, Tenant shall pay the Excess Costs, plus any
applicable state sales or use tax thereon, as prescribed in paragraph 4
above. In the event the Allowance exceeds the cost of Landlord Work,
Tenant shall have the right to apply up to Forty One Thousand Nine Hundred
Ten and 00/100 Dollars ($41,910.00) [i.e., Three and 001100 Dollars ($3.00)
per rentable square foot of the Premises] (the "Cabling/Moving Allowance")
toward cabling costs and moving expenses ("Cabling Work" and "Moving
Costs") in connection with Tenant's improvements in the Premises or its
relocation to the Building. The Cabling/Moving Allowance shall be paid to
Tenant within thirty (30) days following receipt by Landlord of (1)
receipted bills covering all labor and materials expended and used in the
Cabling Work and Moving Costs; (2) a sworn contractor's affidavit from the
general contractor and a request to disburse from Tenant containing an
approval by Tenant of the Cabling Work done; (3) full and final waivers of
lien; (4) as-built plans of Cabling Work; and (5) the certification of
Tenant and its cabling contractor that the Cabling Work has been installed
in a good and workmanlike manner and in accordance with the approved plans.
In addition, Tenant shall provide a copy of test data furnished by the
installing contractor upon completion of the Cabling Work. The
Cabling/Moving Allowance shall be disbursed in the amount reflected on the
receipted bills meeting the requirements above. Any remaining Allowance
shall accrue to the sole benefit of Landlord, it being agreed that Tenant
shall not be entitled to any further credit, offset, abatement or payment
with respect thereto. Landlord shall be entitled to deduct from the
Allowance a construction management fee for Landlord's oversight of the
Landlord Work in an amount equal to two and one half percent (2.5%) of the
total cost of the Landlord Work. Notwithstanding anything herein to the
contrary. Landlord shall not
43
<PAGE>
be obligated to disburse any portion of the Allowance during the
continuance of an uncured default under the Lease, and Landlord's
obligation to disburse shall only resume when and if such default is cured.
8. This Exhibit D shall not be deemed applicable to any additional space added
to the original Premises at any time or from time to time, whether by any
options under the Lease or otherwise, or to any Portion of the original
Premises or any additions to the Premises in the event of a renewal or
extension of the original Term of this Lease, whether by any options under
the Lease or otherwise, unless expressly so provided in the Lease or any
amendment or supplement to the Lease.
9. Tenant acknowledges that, if Tenant is permitted to take possession of the
Premises prior to the Commencement Date in accordance with the terms of
Section 111.D. of this Lease, a portion of the Landlord Work will be
performed by Landlord in the Premises during Normal Business Hours
subsequent to such possession date. Landlord and Tenant agree to cooperate
with each other in order to enable the Landlord Work to be performed in a
timely manner and with as little inconvenience to the operation of Tenant's
business as is reasonably possible. Notwithstanding anything herein to the
contrary, any delay in the completion of the Landlord Work or inconvenience
suffered by Tenant during the performance of the Landlord Work shall not
delay the Commencement Date, subject Landlord to any liability for any loss
or damage resulting therefrom or entitle Tenant to any credit, abatement or
adjustment of Rent or other sums payable under the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Exhibit D as of
the day and year first above written.
WITNESS/ATTEST LANDLORD: EOP OPERATING LIMITED
PARTNERSHIP, A DELAWARE
LIMITED PARTNERSHIP
/s/ Diane Pantaleo
- - ----------------------
By: Equity Office Properties Trust, a
Name: Diane Pantaleo
- - ----------------------
Maryland real estate investment trust,
its managing general partner
Name (print):_________
By: /s/ Arvid Povilaitis
---------------------------------
Name: Arvid Povilaitis
-------------------------------
Title: Sr. Vice President
------------------------------
WITNESS/ATTEST: TENANT: INFORMATION MANAGEMENT ASSOCIATES,
INC., A CONNECTICUT CORPORATION
/s/ Christy L. Tomas
- - -----------------------
Name: Christy L. Tomas By: /s/ Michael T. Dylag
------------------ --------------------------------------
Name: Michael T. Dylag
-----------------------------------
/s/ Lynn M. Ingrassia
- - -----------------------
Name: Lynn M Ingrassia
------------------
Title: V. P. Finance & Administartion
-----------------------------------
44
<PAGE>
EXHIBIT E
ADDITIONAL PROVISIONS
---------------------
This Exhibit is attached to and made a part of the Lease dated__________,
19__, by and between EOP OPERATING LIMITED PARTNERSHIP, A DELAWARE LIMITED
PARTNERSHIP ("Landlord") and INFORMATION MANAGEMENT ASSOCIATES, INC., A
CONNECTICUT CORPORATION ("Tenant") for space in the Building located at 101
North Wacker Drive, Chicago, Illinois 60606.
I. ACCELERATION OPTION.
A. Tenant shall have the right to accelerate the Termination Date
("Acceleration Option") of the Lease from December 31, 2005 to
December 31, 2003 (the "Acceleration Expiration Date"), if:
1. Tenant is not in Monetary Default or material default beyond any
applicable notice and cure period under the Lease at the date
Tenant provides Landlord with an Acceleration Notice (hereinafter
defined), and
2. no part of the Premises is sublet for a term extending past the
Accelerated Expiration Date unless such term shall be terminated
by Tenant; and
3. the Lease has not been assigned except pursuant to a Permitted
Transfer; and
4. Landlord receives written notice of acceleration ('Acceleration
Notice") no later than the last day of the forty eighth (48th)
full calendar month of the Lease Term.
B. If Tenant exercises its Acceleration Option, Tenant, simultaneously
with delivery of the Acceleration Notice shall pay to Landlord the sum
of Two Hundred Nine Thousand Five Hundred Fifty and 00/100 Dollars
($209,550.00) (the "Acceleration Fee") as a fee in connection with the
acceleration of the Termination Date and not as a penalty.
C. If Tenant, subsequent to providing Landlord with an Acceleration
Notice, defaults in any of the provisions of this Lease (including,
without limitation, a failure to pay any installment of the
Acceleration Fee due hereunder),Landlord, at its option, may (i)
declare Tenant's exercise of the Acceleration Option to be null and
void, and any Acceleration Fee paid to Landlord shall be returned to
Tenant, after first applying such Acceleration Fee against any past
due Rent under Lease, or (ii) continue to honor Tenant's exercise of
its Acceleration Option, in which case, Tenant shall remain liable for
the payment of the Acceleration Fee and for all Base Rental,
Additional Base Rental and other sums due under the Lease up to and
including the Accelerated Expiration Date even though billings for
such may occur subsequent to the Accelerated Expiration Date.
II. LANDLORD'S CONSENT.
Except with regard to requests for consent or approval that require
Landlord to make a determination of the aesthetics of certain signage,
alterations or other things that would be visible from outside the Premises
or Building or to assume certain risks, including, without limitation, the
risk that a certain alteration, addition and/or improvement could adversely
effect the mechanical systems or structure of the Building or require
excess removal costs, Landlord and Tenant agree to act reasonably and
without unreasonable delay in granting approval or disapproval of any
requests by the other for consent or approval.
45
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have executed this Exhibit E as of
the day and year first above written.
WITNESS/ATTEST LANDLORD: EOP OPERATING LIMITED
PARTNERSHIP, A DELAWARE
LIMITED PARTNERSHIP
/s/ Diane Pantaleo
- - ----------------------
By: Equity Office Properties Trust, a
Name: Diane Pantaleo
-----------------
Maryland real estate investment trust,
its managing general partner
Name (print):_________
By: /s/ Arvid Povilaitis
---------------------------------
Name: Arvid Povilaitia
-------------------------------
Title: Sr. Vice President
------------------------------
WITNESS/ATTEST: TENANT: INFORMATION MANAGEMENT ASSOCIATES,
INC., A CONNECTICUT CORPORATION
/s/ Christy L. Tomas
- - ----------------------
By: /s/ Michael T. Dylag
Name: Christy L. Tomas --------------------------------------
----------------- Name: Michael T. Dylag
------------------------------------
Name (print):_________
Title: V.P. Finance & Administration
-----------------------------------
46
<PAGE>
EXHIBIT F
SAMPLE
LETTER OF CREDIT
----------------
_________________________
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No._____________________
Issuance Date:__________
Expiration Date:________
Applicant:______________
Beneficiary
EOP Operating Limited Partnership
c/o Equity Office Properties Trust
Two North Riverside Plaza, Suite 2200
Chicago, Illinois 60606
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your favor
for the account of the above referenced Applicant in the amount of Three
Hundred Thousand and 00/1 00 U.S. Dollars ($300,000.00) available for
payment at sight by your draft drawn on us when accompanied by the
following documents-
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of ___________ U.S. Dollars
($__________) under your Irrevocable Standby Letter of Credit No.
_______________ represents funds due and owing to u . s as a result of the
Applicant's failure to comply with one or more of the terms of that certain
lease by and between EOP OPERATING LIMITED PARTNERSHIP, a Delaware limited
partnership, as landlord, and, INFORMATION MANAGEMENT ASSOCIATES, INC.,. as
tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it will
be considered automatically renewed for a one year period upon the
expiration date set forth above and upon each anniversary of such date,
unless at least sixty (60) days prior to such expiration date or applicable
anniversary thereof, we notify you in writing by certified mail, return
receipt requested, that we elect not to so renew this Irrevocable Standby
Letter of Credit. A copy of any such notice shall also be sent to: Equity
Office Properties Trust, 2 North Riverside Plaza, Suite 2200, Chicago, IL
60606, Attention; Vice President-Corporate Operations. In addition,
provided that you have not provided us with written notice of Applicant's
default under the above referenced lease prior to the effective date of any
reduction, the amount of this Irrevocable Standby Letter of Credit shall
automatically reduce in accordance with the following schedule:
<TABLE>
<CAPTION>
Effective Date of Reduction New Reduced Amount of Letter of Credit
<S> <C>
1/1/00 $240,000.00
1/1/01 $180,000.00
1/1/02 $120,000.00
1/1/03 $ 60,000.00
1/1/04 $ 0.00
</TABLE>
47
<PAGE>
In addition to the foregoing, we understand and agree that you shall be
entitled to draw upon this Irrevocable Standby Letter of Credit in
accordance with 1. and 2. above in. the event that we elect not to renew
this Irrevocable Standby Letter of Credit and, in addition, you provide us
with a date statement within thirty (30) days of the expiration of this
Letter of Credit purportedly signed by one of Beneficiary's officers
stating that the Applicant has failed to provide you with an acceptable
substitute irrevocable standby letter of credit in accordance with the
terms of the above referenced lease. We further acknowledge and agree
that: (a) upon receipt of the documentation required herein, we will honor
your draws against this Irrevocable Standby Letter of Credit without
inquiry into the accuracy of Beneficiary's signed statement and regardless
of whether Applicant disputes the content of such statement; (b) this
irrevocable Standby Letter of Credit shall permit partial draws and, in the
event you elect to draw upon less than the full stated amount hereof, the
stated amount of this Irrevocable Standby Letter of Credit shall be
automatically reduced by the amount of such partial draw; and (c) you shall
be entitled to assign your interest in this Irrevocable Standby Letter of
Credit from time to time without our approval and without charge. In the
event of an assignment we reserve the right to require reasonable evidence
of such assignment as a condition to any draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform Customs
and Practice for Documentary Credits (1993 revision) ICC Publication No,
500.
We hereby engage with you to honor drafts and documents drawn under and in
compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter of
Credit must be addressed to our office located at _______________________
to the attention of __________________________.
Very truly yours,
_______________________________
[name]
_______________________________
[title]
48
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<CASH> 7,185
<SECURITIES> 6,613
<RECEIVABLES> 25,052
<ALLOWANCES> (3,849)
<INVENTORY> 0
<CURRENT-ASSETS> 38,093
<PP&E> 9,016
<DEPRECIATION> (5,995)
<TOTAL-ASSETS> 45,340
<CURRENT-LIABILITIES> 11,857
<BONDS> 0
0
0
<COMMON> 54,586
<OTHER-SE> (21,605)
<TOTAL-LIABILITY-AND-EQUITY> 45,340
<SALES> 21,429
<TOTAL-REVENUES> 39,044
<CGS> 316
<TOTAL-COSTS> 11,181
<OTHER-EXPENSES> 36,595
<LOSS-PROVISION> 2,779
<INTEREST-EXPENSE> 30
<INCOME-PRETAX> (8,016)
<INCOME-TAX> 273
<INCOME-CONTINUING> (8,289)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (8,289)
<EPS-PRIMARY> (0.87)
<EPS-DILUTED> (0.87)
</TABLE>
