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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
x Annual report under Section 13 of 15(d) of the Securities
Exchange Act of 1934
__ For the fiscal year ended March 31, 1998
Transition report under Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transition period from ____________ to _____________
Commission file number: 0-22122
MICROS-TO-MAINFRAMES, INC.
(Exact name of Registrant as specified in Its charter)
New York 13-3354896
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
614 Corporate Way, Valley Cottage, New York 10989
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: (914) 268-5000
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g)of the Act:Common Stock,
$.001 Par Value
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
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein,
and will not be contained, to the best of the registrant's
knowledge, in the proxy statements incorporated by reference in
Part III of this Form 10-K or any amendment to this Form 10-K [ ].
The aggregate market value of the voting stock held by non-
affiliates of the Registrant, as of June 15, 1998, was $5,555,011
(assuming solely for purposes of this calculation that all
directors and officers of the Registrant are "affiliates").
The number of shares outstanding of the Registrant's Common
Stock, par value $.001 per share, as of June 15, 1998, was
4,450,374.
Documents Incorporated by Reference: N/A
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ITEM 1. BUSINESS
GENERAL
Micros-to-Mainframes, Inc. and its subsidiaries, MTM
Advanced Technology, Inc. and Data.Com RESULTS, Inc.
(collectively, the "Company" or "MTM") serve as a "one-stop"
organization for data processing solutions by providing computer
hardware and software sales, systems design, installation,
consulting, maintenance and integration of microcomputer
products, including the design and implementation of wide area
networks ("WAN's") and local area networks ("LANs"). The Company
sells, installs and services microcomputers, microcomputer
software products, supplies, accessories and custom designed
microcomputer systems. MTM is primarily an authorized direct
dealer and value added reseller. The Company also serves as a
systems integrator, by integrating into a single working system,
for a client, a group of hardware and software products from more
than 40 major computer vendors including Compaq, Hewlett Packard,
IBM, Dell, NEC, Seagate Technology, Apple, Cisco, Canon, Novell,
Microsoft, Toshiba, 3COM, Cubix, Fore Systems, Madge and numerous
others.
MTM provides its customers, some Fortune 500 corporations
and others mostly considered to be in the Fortune 2000 category
(hereinafter referred to as "Fortune 2000 corporations") in the
tri-state New York Metropolitan area, with a wide range of
related outsourced customer support services, including network
analysis and design, systems configuration, physical
installation, software loading, application training, continuing
education, maintenance and repair services. A network is the
integration of two or more computers and their components into a
system that allows multiple users to share the same information,
communicate with the mainframe (a computer with large capacity
used primarily for massive data storage and processing) or
central networking system and all other computers and peripheral
equipment.
The outsourcing of computer services is a rapidly growing
trend whereby a client company obtains all or a portion of its
data processing requirements from a systems integrator, such as
MTM, that specializes in the computer service, product or
application required by the client. Outsourcing is a fast
growing component of the data processing industry. The focus of
the Company's growth revolves around the Company's outsourced
support services, which include contract programming, network
consulting and staff leasing in addition to systems integration.
Since 1991, the Company has been providing customer support
services and is focusing its current marketing efforts in such
areas. Such services account for about 22% of the Company's
current revenues, including a small amount of revenues derived
from maintenance and repair services.
On May 18, 1998, the Company acquired 19.9% of Pivot
Technologies, Inc. ("Pivot"), a remote network servicer, and an
option (the "Option") to cause the merger of Pivot into a to be
created wholly-owned subsidiary of the Company. No assurance can
be given that the Company will exercise the Option. In
connection with such acquisition, Pivot and the Company agreed
that Pivot would be its exclusive provider of remote network
services to such clients of the Company who desire such services.
Such agreement is generally for the term of the Option, unless
extended by the Company in its sole discretion, from time to
time, for a period not in excess of the earlier of ten (10) years
and the date the Company no longer has an equity interest in
Pivot (generally such time as, if ever, Pivot calls the Pivot
stock owned by the Company or the Company puts same to Pivot).
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On May 6, 1996, the Company acquired the business of
Data.Com RESULTS, Inc. ("Data.Com"), a data communication and
networking consultant and advanced technology solutions provider
primarily serving clients located in Connecticut. This
acquisition complements the Company's existing business by
expanding its client base throughout Connecticut and New England.
The Company expects to continue to expand its operations either
internally or through strategic acquisitions, with emphasis on
its support services.
The Company's software support services include network and
mainframe connectivity (communication between computers and
networks) consulting, hardware and software maintenance, network
management, videoconferencing consulting and trouble-shooting
support. The Company's clients have access to person-to-person
support services administered by a staff of highly trained
support engineers, generally via a toll-free 800 telephone call.
The Company's clients also have access to MTM's consulting
services for LAN and WAN planning, detailed systems design,
gateway (a device which allows computer users to access data from
networks to the mainframes or by telephone), bridge (a device
which allows computer users to communicate between networks and
provides an expansion route for the existing network) and
security/disaster recovery, among other services.
The Company was incorporated on May 12, 1986 in the State of
New York.
INDUSTRY
The microcomputer industry has become a multi-billion dollar
industry since its development in the late 1970's. Management
believes that this is attributable to rapid technological
advances leading to the development of significantly more
powerful microcomputers at substantially lower prices than larger
minicomputers. The use of microcomputers has become widespread
throughout the workplace also because of the smaller size of
microcomputers, as compared to minicomputers, and the
microcomputer's versatility and ability to connect to and share
information with mainframe systems. The Company believes, based
on its knowledge of the industry and industry data, that the
microcomputer industry experienced a compound annual growth rate
of almost 50% from 1984 to 1988 and a more modest annual rate of
growth ranging from 10% to 17% since 1988. The Company believes
that the industry will continue to grow at this modest rate in
the future, although there can be no assurance that it will.
Corporations purchase their computer hardware from a number
of sources, including manufacturer authorized dealers and
value-added resellers, such as MTM, retail stores and, with
increasing importance, directly from manufacturers through direct
telemarketing and mail order organizations. Direct sales have
benefited from microcomputer users becoming more computer
literate, the emergence of industry standards and increased
inter-changeability of peripherals. As a result of the
foregoing, the microcomputer dealer distribution channel is
currently undergoing additional market segmentation into dealers
such as the Company, which are systems integrators which offer a
one-stop total solution for outsourcing.
PRODUCTS
The Company markets microcomputers, printers, displays,
video conferencing products, LAN and WAN products, plotters,
software and other peripheral products. MTM is an authorized
sales and service dealership of microcomputer equipment and
related products supplied primarily by major manufacturers,
including, but not limited to, Compaq Computer Corporation, IBM
Corporation, Dell Computer Corporation, Hewlett-Packard Company,
Apple Computer, Inc., Seagate Technology, Inc., Cisco Systems,
Inc., Fore Systems, Inc., Canon USA, Inc., Novell, Inc. and
Toshiba American Information. The Company offers a variety of
products manufactured by other companies, including NEC
Technologies, Inc., 3COM Corporation, Cubix Corporation, Madge
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Development Corp. and others, and software products from major
suppliers, including Microsoft Corporation, IBM and others.
MTM purchases certain products from distributors selling to
other dealers, at prices generally lower than the Company could
obtain directly from suppliers. The Company also obtains
products from a number of suppliers, including independent
distributors, on an individual purchase order basis rather than
through dealership agreements. MTM will also order specific
products from other manufacturers to satisfy a particular
customer requirement. The Company regularly evaluates new
products, both internally and through evaluations with its
customers. See "Business - Suppliers."
The microcomputer industry is characterized by numerous
hardware systems that utilize different and often incompatible
standards for hardware and software. The Company has the
capability to design systems and support services which include
products or components manufactured by numerous manufacturers
that address most applicable industry standards.
The Company is an authorized dealership for the various
standardized LAN systems, including Novell, 3COM, Microsoft LAN
Manager, the IBM Token Ring Network, Ethernet and compatible
alternatives. In addition, the Company sells and services LAN
and WAN products produced by the various manufacturers which it
represents. LAN and WAN systems allow various microcomputers to
communicate with other computers in a group and with other
microcomputers in other LANs and WANs. The Company's clients
have access to the Company's Connectivity and Communication
Laboratory described below where they can test, design and create
LANs and WANs.
OUTSOURCED SUPPORT SERVICES
MTM support services include a wide range of services designed
for its customers' corporate planners and management needing a
single source for technical support issues, such as local and
wide area networks, gateways, bridges, system conversion
planning, hardware and software specifications, database and
database server development and implementation, videoconferencing
and security/disaster recovery.
The outsourcing of computer services is a rapidly growing
trend in which a client company obtains all or a portion of its
data processing requirements from a systems integrator, such as
the Company, that specializes in the computer service, product or
application required by the client.
The Company believes that it is generally more
cost-effective and more efficient for its clients to purchase
outsourcing services from the Company than for them to provide
equivalent services by hiring their own service and support
personnel.
The following services provide the Company's clients with
the ability to outsource virtually all of their support issues
with one company for a wide variety of microcomputer hardware and
software products. These services generally provide the
Company's clients with access via an 800 telephone call to
person-to-person support services administered by a staff of
highly trained support engineers in the Company's Advanced
Technology Group. The Advanced Technology Group includes 44
technical support persons under the supervision of a Data
Communications Manager. This group is responsible for systems
design and the implementation of technology and the management of
advanced technology projects including LANs, WANs and data
communications problem solving for clients.
NETWORK AND MAINFRAME CONNECTIVITY CONSULTING
MTM and its staff of networking consultants offer experience
at all levels of computers to provide management information
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services (MIS) departments with consulting services ranging from
connectivity to enhancements, feasibility and implementation.
These services address critical issues such as performance,
reliability and compatibility with proven strategies and
products. MTM offers research and planning insight at all levels
of information flow from mainframes to minis to micros and within
each system. These consulting services provide clients with
access to a variety of options in designing and maintaining
systems.
CONNECTIVITY AND COMMUNICATION LABORATORY
The Company's Advanced Technology Group seeks to serve
customers' increasing communications requirements, including
their need to share data and resources using LANs and WANs. The
Company offers an array of connectivity services, including LAN
and WAN system design and configuration, videoconferencing
consulting, user training and installation. In addition, the
Company has established a Connectivity and Communication
Laboratory in its executive offices. This state-of-the-art
facility provides a multi-vendor environment to test connectivity
networks, create multi-vendor LANs and WANs and solution
prototypes, perform feasibility studies, perform pre-release and
new connectivity product testing, perform product compatibility
testing, product bulletproofing, procedures development, product
evaluation and optimization, replication, diagnosis and solution
of service problems and to generally provide a basis to address
support issues.
The Company's lab features several different LAN and WAN
operating systems from such manufacturers as Novell, IBM, SCO,
Microsoft Lan Manager and 3COM and includes the entire spectrum
of computer sizes.
NETWORK MANAGEMENT AND FINE-TUNING
The Company's Advanced Technology Group provides services
designed to resolve complex network and data communications
management issues for clients with existing multiple networks
and/or sites currently utilizing communication servers, gateways
to host computers and bridges linking multiple servers (a primary
storage device, normally a PC in a network). These services
include network security planning and implementation, data
integrity and redundancy, network fine-tuning and auditing,
performance testing, evaluation and optimization, corporate
electronic mail and site management.
1-800-PRODUCT SUPPORT
The Company's experienced support engineers provide product
support to resolve specific operating system and application
problems. The Company's toll-free 800 telephone support line can
be used for such problems as application software, installation
assistance, error message handling or shared device problems.
The applications supported include spread sheets, word processing
packages, communications, network and PC operating systems,
graphics, databases and various utilities.
The Company provides its clients with instant access to the
latest product support resources for known problems and
resolutions, updates and release information.
NETWORK TRAINING AND CONSULTING
The Company's Advanced Technology Group provides the
Company's clients and their corporate management, as well as its
own engineering and sales personnel, with technical support and
training. The Company's support engineers have generally been
trained by the major computer vendors and receive additional
training from courses given by computer vendors, as well as by
the Company's Data Communications Manager, on an as needed basis
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and also in order to maintain their certifications with the
respective vendors. The Company offers comprehensive training
sessions for its customers featuring instruction by
manufacturer-trained customer support representatives. This
department assists in post-sale customer inquiries and network
consultation and support via a toll-free 800 telephone number.
The Company offers customer training seminars for various
microcomputer hardware and software products at its own
facilities and at customer sites.
PRODUCT MAINTENANCE
The Company offers contracts to its customers for both
on-site and off-site complete product maintenance and repair
services. These maintenance contracts generally provide for the
Company to maintain microcomputer equipment at the customer's
location during regular business hours. Most maintenance
contracts are renewable annually. In addition, the Company
provides authorized warranty service and repair for equipment
sold by it and by others. The service department fulfills
warranty requirements and offers extended maintenance and repair
agreements after the expiration of manufacturers' warranties.
The service department maintains complete parts inventories for
the products distributed by the Company and is staffed by
manufacturer-certified field engineers.
DIAGNOSTICS
The Company will ship one of its trouble-shooting tools
(e.g., HP Advisor, Novellr LANalyzer or Network Analyzer) to a
client to allow dial-in access for trouble-shooting network
hardware and software related problems. By displaying and
capturing network traffic, the Company's experienced systems
engineers can analyze and determine the network problem. In
addition, through a remote dial-in system, the Company's systems
engineers can access a client's network problems.
DATABASE
MTM has access to state-of-the-art technical databases which
provide it with information concerning technological advances
from major vendors. This assists the Company in trouble-shooting
as it receives up-to-date product information from a wide variety
of vendors. The Company has either been licensed, contracted or
authorized to use the following databases: Novell's technical
database which Novell engineers use for research and network
diagnosis, as well as technical information from IBM, Compaq,
Cisco, Microsoft, NEC, 3COM, and Fore Systems, Inc. These
databases provide the Company with technological advances from
major vendors as soon as the information is published. These, in
turn, allow the Company its flexibility to shift rapidly to
vendors whose products are expected to increase in demand as a
result of technological advances.
ACCESSORY PRODUCTS
The Company has formed new purchasing relationships with
several computer supply vendors, through which it resells
diskettes, data tape, compact disks, toner, ribbons and other
related computer supplies. The Company does not believe that it
is dependent on any one vendor of computer supplies, and the loss
of any such vendor would not have a material adverse impact on
the Company.
MARKETING AND SALES
The Company's marketing efforts are focused on Fortune 500
corporations and, to a greater degree, what may be categorized as
Fortune 2000 corporations, professional firms and governmental
and educational institutions. Except for major corporate
accounts, these customers generally do not have internal computer
support personnel. Management believes that the increasing
complexity of microcomputer systems, increased usage of
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microcomputers in the workplace and the trend toward network
interconnecting will cause business and institutional customers
to require significant levels of outsourced customer support
services, such as those provided by the Company. The Company
believes that these customers are increasingly relying on their
dealers and suppliers to provide, in addition to competitive
pricing, a one-stop solution-based approach to their data
processing requirements. The Company uses such an approach which
addresses purchasing, compatibility, maintenance, support,
training and obsolescence.
The Company has approximately 500 active clients. The
Company's customers are well diversified in such industries as
securities, financial institutions, pharmaceuticals,
manufacturing, distribution, law and accounting firms. For the
fiscal years ended March 31, 1998, 1997 and 1996 ("Fiscal 1998",
"Fiscal 1997" and "Fiscal 1996"), approximately 13%, 13% and 16%,
respectively, of the Company's total revenues were derived from
sales to PaineWebber, Incorporated ("PaineWebber"). Even though
the Company's agreement with PaineWebber terminated in February
28, 1998, the Company is negotiating an extension thereof. The
Company is continuing to do business with PaineWebber on
generally the same terms as the expired agreement. While the
Company believes it will be successful in extending the
PaineWebber Agreement, no assurance thereof can be given. In any
event, sales to PaineWebber are negotiated on a case by case
basis. During Fiscal 1997, Bloomberg, L.P. ("Bloomberg")
accounted for approximately 16% of the Company's revenues even
though for Fiscal 1998 such percentage was less than 3%.
Although the Company's customer base has increased, the loss of
PaineWebber as well as, to a lesser extent, the loss of any other
principal customer, would be expected to have a material adverse
effect on the Company's operations during the short term until
the Company is able to generate replacement business, although
there can be no assurance of obtaining such business. During
Fiscal 1998, the Company contracted with BTG, Inc. ("BTG"), in
connection with the termination of the agreement and plan of
merger between the Company and BTG, to provide certain
"transition services" to BTG. It is not anticipated that any
relationship between the Company and BTG will continue after the
termination of the aforementioned service agreement.
As of June 15, 1998, the Company employed 30 salespersons
who are paid salaries, commissions and/or a combination of both.
The Company's sales executives regularly call on sales management
at companies with solutions for their computer problems. While
the Company's marketing activities are focused on Fortune 2000
corporations located in the tri-state Metropolitan New York area
and throughout New England, the Company sells its products and
services to branch offices of its customers, including Fortune
500 corporations, throughout the United States. The Company also
relies on customer referrals from its major suppliers and
manufacturers who often receive requests for a systems integrator
to design and install their systems.
The Company's sales executives generally participate in
approximately five hours of training per week concerning various
topics, including product knowledge, industry information and
sales techniques. The Company's ability to successfully expand
its business will depend, in part, on its ability to attract,
hire and retain highly skilled and motivated marketing and sales
personnel, of which there can be no assurance.
MTM also makes joint sales presentations with certain of the
Company's major suppliers to existing and prospective customers.
Certain of these suppliers' customer fulfillment option programs
allow customers who purchase directly from the supplier to apply
purchases from MTM to their purchase obligations under those
agreements. As a result, these customers have the flexibility of
purchasing products from the Company to take advantage of MTM's
added services and its ability to integrate multiple
manufacturers' products. Most major manufacturers have
instituted either a moratorium or a selective authorization
procedure on the approval of additional authorized dealership
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locations. While in effect, such policies may preclude the
Company and its competitors from becoming authorized dealers for
new vendors.
SUPPLIERS
The Company purchases microcomputers and related products
directly from numerous suppliers as either an authorized dealer
or a value added reseller. The Company has entered into
authorization agreements with its major suppliers. Typically,
these agreements provide that MTM has been appointed, on a
non-exclusive basis, as an authorized dealer and systems
integrator of specified products of the supplier at specified
locations. Most of the authorization agreements provide that the
supplier may terminate the agreement with or without cause upon
30 to 90 days notice or immediately upon the occurrence of
certain events. In addition, although each agreement is
generally subject to renewal on an annual basis, there can be no
assurance that such agreements will be renewed. The Company
believes that its relationships with its major suppliers are
excellent.
Sales of Dell Computer products have accounted for
approximately 23%, 20% and 24%, respectively, of the Company's
revenues during Fiscal 1998, Fiscal 1997 and Fiscal 1996. All or
substantially all of such product purchase were directly through
Dell. Sales of Compaq products accounted for approximately 16%,
26% and 13%, respectively, of the Company's revenues during
Fiscal 1998, Fiscal 1997 and Fiscal 1996. Such sales were
substantially, if not all, through distributors. Sales of IBM
products accounted for approximately 26% and 13% of the Company's
revenues during Fiscal 1997 and Fiscal 1996. No other supplier's
products accounted for 10% or more of the Company's revenue
during Fiscal 1998, Fiscal 1997, or Fiscal 1996. The Company's
sales of products purchased through MicroAge Computer Centers,
Inc. ("MicroAge") accounted for approximately 20% of the
Company's total revenues in Fiscal 1996 and sales of products
purchased through Intelligent Electronics, Inc. ("IE") accounted
for approximately 44% and 10% of total revenues in Fiscal 1997
and Fiscal 1996, respectively. The Company has no current
agreement with either MicroAge or IE and no longer conducts any
business with either MicroAge or IE. The Company's sales of
products purchased through Tech Data Corporation and Ingram Micro
Inc. during Fiscal 1998 accounted for approximately 27% and 17%,
respectively. Other than if Dell were to terminate its
arrangement with the Company and Compaq notifying distributors
that the Company was not an authorized agent thereof, management
does not believe that a termination of any one supplier's
agreement or distributor's agreement would have a material
adverse effect on the Company.
The Company's future results of operations are dependent
upon continued demand for microcomputer products. Distributors
in the microcomputer industry currently face a number of adverse
business conditions, including price and gross profit margin
pressures and market consolidation. During the past five years,
all major hardware vendors have instituted extremely aggressive
price reductions in response to lower component costs and
discount pricing by certain microcomputer manufacturers. The
increased price competition among major hardware vendors has
resulted in declining gross margins for many microcomputer
distributors and may result in a reduction in existing vendor
subsidies. Management of the Company believes that these current
conditions, which are forcing certain of the Company's direct
competitors out of business, may present the Company with
opportunities to expand its business. There can be no assurance,
however, that the Company will be able to continue to compete
effectively in this industry, given the intense price reductions
and competition currently existing in the microcomputer industry.
Pursuant to the terms of most of its authorized dealership
agreements, the Company furnishes firm purchase orders 30 to 90
days in advance of shipment. Under the terms of these
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agreements, the Company is generally liable for up to a 5%
restocking fee to many manufacturers for the return of previously
received merchandise. The Company has not experienced any
significant cancellation penalties or restocking fees.
The Company receives certain discretionary cost subsidies,
typical for the industry, from certain major suppliers to promote
sales and support activities relating to their products. The
Company will typically earn about 1 1/2% of its aggregate
purchases. It has used these funds to subsidize marketing,
advertising and its Connectivity and Communication Laboratory,
where the Company has been able to expand into areas relating to
these suppliers' products and sales, such as LAN sales and
support.
MTM's current arrangements with major suppliers generally
provide protection for up to two months against declines in the
wholesale price of microcomputers and related products in the
Company's inventory. These arrangements typically take the form
of a cash payment or a credit against future purchases in an
amount equal to the difference between the price actually paid by
the Company for its inventory of that supplier's products and the
new dealer price.
The Company's suppliers permit the Company to pass through
to its customers all warranties and return policies applicable to
the suppliers' products. To date, the Company has experienced
little return of product and has been reimbursed by the suppliers
for most warranty work done for its customers. All service work
after the expiration of the warranty period is at the customer's
expense. The Company offers service contracts of varying lengths
under which the Company agrees to be responsible for all service
costs for a fixed term in exchange for a set fee paid by the
customer.
Software and other related products are purchased from
numerous industry suppliers. As is customary, the Company does
not have any long-term agreements or commitments with these
suppliers, because competitive sources of supply are generally
available for such products.
In response to discounted pricing by certain microcomputer
manufacturers, all major CPU hardware suppliers have instituted
aggressive price reductions. The heightened price competition
among hardware suppliers has resulted in declining gross margins
for many microcomputer resellers. Although discounted prices
have enabled the Company to increase its sales volume over the
past three years, it has resulted in lower gross margins for some
of the Company's product lines. Network and service-related
hardware products, however, have had improving margins. See
"Management's Discussion and Analysis of Financial Condition and
Results of Operations."
TECH DATA CORPORATION AND INGRAM MICRO INC.
The Company entered into a Program Agreement with Ingram
Micro Inc. as of December 5, 1997. Such agreement incorporated
therein interim agreements between the parties. Either party may
terminate such agreement without cause upon thirty (30) days
prior notice. Pursuant to the agreement, Ingram provides a
supplemental program to provide the Company (and other similarly
situated companies contracting with Ingram) with services
designed to assist the reseller in marketing and distributing its
product. The Company agreed under such agreement to name Ingram
as its primary supplier and to purchase from Ingram at least 65%
of its total product purchased from wholesale distributors. No
assurance can be given that such agreement will not be
prematurely terminated by Ingram.
The Company's agreement with Tech Data Corporation was for a
one year term commencing January 15, 1997, subject to an
automatic three month renewal. Such agreement was terminable
upon 30 day prior notice. Even though the term has expired, the
Company continues to conduct business with Tech Data on
substantially the same terms as the original agreement. Such
agreement generally sets forth the price to be charged the
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Company for purchases based on a percentage above Tech Data's
landed cost. Even though the Company has no reason to believe
that Tech Data will not continue to do business on substantially
similar terms as provided in the agreement referred to above, no
assurance thereof can be given.
PIVOT
On May 18, 1998, the Company acquired 19.9% of Pivot
Technologies, Inc. ("Pivot"), a remote network servicer, and an
option (the "Option") to cause the merger of Pivot into a to be
created wholly-owned subsidiary of the Company. No assurance can
be given that the Company will exercise the Option. In
connection with such acquisition, Pivot and the Company agreed
that Pivot would be its exclusive provider of remote network
services to such clients of the Company who desire such services.
The aforementioned remote network service agreement is generally
for the term of the Option, unless extended by the Company in it
sole discretion, from time to time, for a period not in excess of
the earlier of ten (10) years and the date the Company no longer
has an equity interest in Pivot (generally such time as, if ever,
Pivot calls the Pivot stock owned by the Company or the Company
puts same to Pivot).
COMPETITION
The microcomputer market is highly competitive. The Company
is in direct competition with local, regional and national
distributors of microcomputer products and related services.
Several of these competitors offer most of the same basic
products as does the Company. The Company competes with other
resellers and believes its prices and delivery terms are
competitive. Many competitors may sell their products at lower
prices than the Company, but generally do not offer the same
range of support services after installation of equipment that
the Company offers to its customers.
In addition, the tri-state Metropolitan New York area and
New England, to which the Company markets its products and
services, are particularly characterized by highly discounted
pricing on microcomputer products from various sources of
competition. The Company faces competition from microcomputer
suppliers that sell their products through direct sales forces
and from manufacturers and distributors that emphasize mail order
and telemarketing.
Depending on the customer, the principal areas of
competition may include price, pre-sales and post-sales technical
support and service, availability of inventory and breadth of
product line. The Company has an insignificant market share of
sales in the microcomputer industry and the service markets which
the Company serves. Certain of the Company's competitors at the
regional and national level are substantially larger, have more
personnel, have materially greater financial and marketing
resources than the Company and operate within a larger geographic
area than does the Company.
Management believes that the Company will continue to be
able to compete effectively against its various competitors by
combining fair pricing with its wide range of customer support
services designed to provide its customers with high-end
technological services, multi-vendor technical support,
maintenance of their computer product needs, a dedicated, trained
staff of salespersons and technicians, complete solutions for
single user, multi-user or network systems and specialized
vertical market software.
BACKLOG
The Company generally delivers products from inventory to
its customers within one to two weeks of its receipt of purchase
orders. As a result, the Company believes that its backlog of
unfilled customer orders is not material.
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PROPRIETARY INFORMATION
The Company holds no patents and has no trademarks
registered in the United States Patent and Trademark Office or in
any state. If the Company believes that trademark registration
is significant in protecting its product or service recognition,
the Company may apply for registration of various trademarks or
service marks, including, but not limited to, the names Micros-to-
Mainframes, Data.Com and The Advanced Technology Group, in which
it believes that it has certain common-law rights. The Company
may also affix copyright notices on its support service, training
and service manuals. While such protection may become important
to the Company, it is not considered essential to the success of
its business. The Company relies on the know-how, experience and
capabilities of its management, sales and service personnel. The
Company requires some of its employees to sign confidentiality or
non-competition agreements.
EMPLOYEES
As of June 15, 1998, the Company employed 155 persons, all
but four of whom are full-time personnel. Of these employees,
five are responsible for management, 30 are responsible for
sales, one is responsible for marketing, 102 for technical
support, three for distribution, seven for finance and seven for
administration. None of the Company's personnel is represented
by a union, and the Company considers its employee relations to
be good.
ITEM 2. PROPERTIES
The Company's executive offices and warehouse are located in
approximately 11,000 square feet of space at a two-story facility
leased at 614 Corporate Way, Valley Cottage, New York. The lease
expires on August 31, 1998. Approximately 35% of such space is
devoted to marketing and telephone sales, 15% to service and
customer support, 10% to administration, 10% to the Connectivity
and Communication Lab and 30% to warehouse space. The Company
does not maintain a retail showroom. The monthly rental payment
is currently $6,400. Even though no assurance can be given, the
Company anticipates no difficulty in renewing the lease at the
current rate.
The Company also leases 4,000 square feet of office space in
the Chrysler Building in New York City, which space is devoted to
high technology sales. The monthly payment was $11,111 under a
lease which expired on May 11, 1998. The Company has agreed to
vacate such space by July 1, 1998. The Company entered into a
lease on June 17, 1998 for 8,433 square feet of office space at
270 Madison Avenue for an approximate term of 5 years and three
months. The monthly rent for the new space will be approximately
$22,550 for the first 2 years of the lease and approximately
$23,200 thereafter. The Company also leases approximately 8,100
square feet of office and warehouse space (only about 10% of this
property is devoted to warehouse space) in Rocky Hill,
Connecticut. The monthly payment on this lease is currently
$5,213.35. The lease is terminable on six months' notice and
expires on July 31, 1999.
The Company is also responsible for real estate taxes,
insurance, utilities and maintenance expenses concerning these
premises.
ITEM 3. LEGAL PROCEEDINGS
In February 1998, the Company brought a civil action in the
Supreme Court of the State of New York for Rockland County for
breach of contract against KLM Royal Dutch Airlines alleging
damages in the amount of $141,004.23. This action has since been
removed to the United States District Court for the Southern
District of New York. The Company's management cannot predict
the final timing or outcome of this litigation.
<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On January 6, 1998, the approval and adoption of the
Agreement and Plan of Merger ("Merger Agreement") dated as of
August 29, 1997, by and among BTG, Inc. ("BTG"), BTG Merger Sub,
Inc. and the Company was submitted to a vote of the Company's
stockholders. Such stockholders subsequently approved and
adopted same. Subsequent to the approval and adoption, the
Merger Agreement was terminated. No other matters were submitted
to a vote of the Company's stockholders during the fourth quarter
of the fiscal year ended March 31, 1998.
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
The Common Stock of the Company is listed on NASDAQ/NMS
under the symbol "MTMC".
The following table sets forth the high and low closing bid
prices of the Common Stock for the last two fiscal years as
reported by NASDAQ. Bid quotations represent high and low prices
quoted between dealers, do not reflect retail mark-ups, mark-
downs or commissions and do not necessarily represent actual
transactions.
Bid
Security Period High Low
COMMON
STOCK FISCAL YEAR ENDED MARCH 31, 1997
April 1-June 30, 1996 $5.875 $3.750
July 1-September 30, 1996 $4.750 $3.000
October 1 - December 31, 1996 $4.250 $2.125
January 1 - March 31, 1997 $3.750 $2.500
FISCAL YEAR ENDED MARCH 31, 1998
April 1 - June 30, 1997 $4.00 $2.688
July 1 - September 30, 1997 $5.188 $3.688
October 1 - December 31, 1997 $4.875 $3.750
January 1 - March 31, 1998 $4.875 $2.500
On June 15, 1998, the closing bid and asked prices of a
share of Common Stock were $2.75 and $2.875, respectively, and
the Company had in excess of 1500 beneficial holders of Common
Stock.
The Company has not paid any cash dividends on Common Stock
to date and does not anticipate paying any in the foreseeable
future. The Board of Directors intends to retain earnings, if
any, to support the growth of the Company's business.
ITEM 6. SELECTED FINANCIAL DATA
The following selected financial data for the fiscal years
ended March 31, 1998, 1997, 1996 and 1995 and 1994, are derived
from the financial statements of the Company. The data should be
read in conjunction with the consolidated financial statements,
related notes and other financial information included herein.
<PAGE>
Income Statement Data:
Year Ended March 31
-------------------------------------------
1998 1997 1996 1995 1994
(In thousands; except earnings per share)
Net revenues $69,601 $ 58,062 $ 47,326 $43,043 $ 29,028
Cost of products sold 51,912 47,549 40,452 37,530 24,862
Cost of services
provided 9,414 2,420 1,109 778 562
Selling, general and
administrative
expenses (3) 7,796 6,698 4,070 3,276 2,690
Compensatory stock
arrangement(1) 0 0 4,655 0 0
Interest expense 13 6 13 40 94
Income (loss) from
operations before
income taxes 629 1,530 (2,907) 1,514 820
Net income (loss) 342 910 (3,614) 878 478
Net income (loss) per
common share:
Basic $.08 $0.21 ($1.43) 0.40(2) $0.37(2)
Diluted $.08 $0.20 ($1.43) $0.40(2) 0.37(2)
Weighted average number
of common and common
equivalent shares used
in calculation:
Basic 4,450 4,425 2,533 2,176(2) 2,176(2)
Diluted 4,484 4,491 2,533 2,188(2) 2,189(2)
Balance Sheet Data: At March 31
-----------------------------------------
1998 1997 1996 1995 1994
(In thousands)
Working Capital $10,769 $ 10,418 $10,684 $4,648 $3,771
Total Assets 22,077 20,460 16,209 9,420 8,486
Total Liabilities 9,391 8,117 5,208 4,554 4,501
Retained Earnings (Deficit) (127) (469) (1,379) 2,235 1,357
Shareholders' Equity 12,685 12,343 11,000 4,866 3,985
_____________________
(1) Reflects a non-cash, non-recurring charge. See "Item 7.
Management's Discussion and Analysis of Financial Condition and
Results of Operations."
(2) Share and per share data do not include 1,400,000 shares of
the Company's Preferred Stock issued in September 1993 and
redeemed in September 1996 in exchange for 980,000 shares of
Common Stock (the "Preferred Stock").
(3) Reflects receipt of $850,000 from BTG to offset the direct
($421,000) and indirect costs of the terminated merger. Net
income and basic and diluted net income per share would have been
$85,000 and $0.02 respectively, excluding amounts associated with
the aforementioned indirect cost.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in
conjunction with the Consolidated Financial Statements and Notes
thereto appearing elsewhere in this Report.
<PAGE>
RESULTS OF OPERATIONS
The following table sets forth for the periods indicated
certain items in the Company's Consolidated Statements of
Operations expressed as a Percentage of total revenue for that
period:
Year Ended March 31,
-----------------------------
1998 1997 1996
Product Sales 78.13% 88.95% 90.41%
Services 21.87 11.05 9.59
------- ------- --------
Net sales 100.00 100.00 100.00
Cost of Revenues 88.11 86.06 87.82
------ ------ -------
11.89 13.94 12.18
Cost of services provided
Selling, general and
administrative expenses 11.20(2) 11.54 8.60
Compensatory stock arrangement -- -- 9.84(1)
Interest expense 0.02 0.01 0.03
Income (loss) from operations
before income taxes 0.90 2.64 (6.14)
Net income(loss) .49 1.57 (7.64)
_______________________
(1) Reflects the non-cash non-recurring charge of $4,655,000
described below.
(2) Includes $850,000 of payments from BTG to offset the direct
($421,000) and indirect cost of the terminated merger.
The following table sets forth revenues and cost of revenues as a
percentage of each category:
Year Ended March 31,
1998 1997 1996
---------------------------------
Product sales:
Revenues 100.00% 100.00% 100.00%
Cost of products sold 95.46 92.07 94.54
------- ------ -------
4.54% 7.93% 5.46%
======= ======= =======
Service Revenues
Revenues 100.00% 100.00% 100.00%
Cost of revenues 61.84 37.71 24.44
------- ------- ------
38.16% 62.29% 75.56%
======= ======= ======
The Year Ended March 31, 1998 as compared to the Year Ended March 31, 1997.
The Company had net sales of approximately $69,601,000 for the Year
Ended March 31, 1998 ("Fiscal 1998"), as compared with
approximately $58,062,000 for the Year Ended March 31, 1997
<PAGE>
("Fiscal 1997"). This increase in sales of approximately 20% was
primarily related to increased revenues from support services,
(137%) with a modest increase in equipment sales (5%).
Service revenue in Fiscal 1998 increased approximately 137%
to $15,222,000 from $6,416,000 in Fiscal 1997. The cost of
services provided increased to $9,414,000 from $2,420,000,
primarily as a result of the Company hiring additional technical
personnel and engaging third party vendors (such as CISCO, PIVOT,
ISG and various other subcontractors) to participate in the
providing of such services. On an aggregate basis, technical
personnel salaries in Fiscal 1998 increased 87% to $4,517,000
from $2,420,000 in Fiscal 1997. This increase was due to the
Company's hiring more technical personnel to meet current needs
and as part of its long-term planning for the future growth in
its consulting and service business. Technical personnel
salaries as a percentage of service revenues were 30% in Fiscal
1998 and 38% in Fiscal 1997. The Company expects to continue to
hire additional professional technicians and engineers for the
Advanced Technology Group in order to meet the expected demand in
the outsourcing and services business for the coming year and to
not be so dependent on third party service subcontractors in the
future. To the extent necessary, the Company will continue to use
subcontractors.
Costs of products sold increased 3.39% compared to Fiscal
1997 as a result of competitive market pressures effecting the
mark-up on product sales. The Company currently faces a number of
adverse business conditions, including price and gross profit
margin pressures and market consolidation. During the past five
years, all major hardware vendors have instituted extremely
aggressive price reductions in response to lower component costs
and discount pricing by certain microcomputer manufacturers. The
increased price competition among major hardware vendors has
resulted in declining gross margins for many microcomputer
distributors including the Company and may result in a reduction
in existing vendor subsides. Management of the Company believes
that these current conditions, which are forcing certain of the
Company's direct competitors out of business, may present the
Company with opportunities to expand its business. There can be
no assurance, however, that the Company will be able to continue
to compete effectively in this industry, given the intense price
reductions and competition currently existing in microcomputer
industry.
Selling, general and administrative ("SG&A") expenses were
reduced by receipts of $850,000 from BTG to offset direct
($421,000) and indirect costs relating to the BTG merger (See
"Termination of Merger Agreement"), were approximately $7,796,000
for Fiscal 1998, as compared to approximately $6,698,000 in
Fiscal 1997. The increase in SG&A expenses ($1,948,000),
exclusive of the BTG payments ($850,000) were primarily
attributable to the Company's overall increase in overhead
expenses due to the increase in the Company's infrastructure to
support current and anticipated growth direct costs of the merger
and a provision of $100,000 to strengthen the company's allowance
for bad debts. The increase in overhead expenses primaily related
to additional compensation cost for sales of personnel of
approximately $530,000. Payroll taxes, other employee benefits and
training of employee increased by approximately $355,000.
Telephone expenses related to sales increased approximately
$120,000. Deprecation and amortization increased approximately
$116,000 due to the purchase of additional office equipment.
The effective income tax rate for Fiscal 1998 and 1997 was
46% and 41%, respectively. The reason the effective income tax
rate increased 5% was due to the several adjustments to prior
year tax provisions.
Accordingly, net income decreased to approximately $342,000
in Fiscal 1998 from $910,000.
<PAGE>
The Year Ended March 31, 1997 as compared to the Year Ended March
31, 1996.
The Company had net sales of approximately $58,062,000 for
the Year Ended March 31, 1997 ("Fiscal 1997"), as compared with
approximately $47,326,000 for the Year Ended March 31, 1996
("Fiscal 1996"). This increase in sales of approximately 23% was
attributable to increased sales of equipment to both new and
existing customers in Fiscal 1997, as well as to increased
revenues from support services, including approximately
$6,289,000 in revenue derived from the newly acquired subsidiary.
As a percentage of net sales, the cost of products sold for
Fiscal 1997 decreased by 3.59% as compared to Fiscal 1996, due to
increased service revenues, which have higher margins than
equipment sales, offset by competitive market pressures on
product sales.
Service revenue in Fiscal 1997 increased 41% to $6,416,000
from $4,537,000 in Fiscal 1996. Because of the increase in the
Company's service business, the Company hired additional
technical personnel. On an aggregate basis, technical personnel
salaries in Fiscal 1997 increased 118% to $2,420,000 from
$1,109,000 in Fiscal 1996. Technical personnel salaries as a
percentage of service revenues were 38% in Fiscal 1997 and 24% in
Fiscal 1996. This increase was due to the Company's hiring more
technical personnel as part of its planning for future growth in
its consulting and service business. The Company is expected to
continue to hire additional professional technicians and
engineers for the Advanced Technology Group in order to meet the
expected demand in the outsourcing business for the coming year.
Selling, general and administrative ("SG&A") expenses were
approximately $6,698,000 for Fiscal 1997, as compared to
approximately $4,070,000 in Fiscal 1996. SG&A expenses as a
percentage of net sales increased to 11.54% in Fiscal 1997 from
8.60% in Fiscal 1996. This increase was primarily attributable
to the Company's overall increase in overhead expenses and to the
newly-formed subsidiary that acquired the business of Data.Com
RESULTS, Inc. (" Data.Com"), which had SG&A expenses of
approximately $1,513,000. Furthermore, due to the increase in
sales volume, sales commissions and salaries increased by
$100,000, and other employee payroll, benefits and payroll taxes
increased by approximately $300,000. The increases were also due
to increases in occupancy expenses and telephone expenses of
approximately $222,000 for additional office space in New York
City.
Accordingly, net income increased to approximately $910,000
in Fiscal 1997 from a loss of $(3,614,000) in Fiscal 1996, which
included the 1996 non-cash, non-recurring charge of $4,655,000.
LIQUIDITY AND CAPITAL RESOURCES
The Company measures its liquidity in a number of ways,
including the following:
March 31,
------------------------
1998 1997 1996
(Dollars in thousands, except current ratio data)
Cash and cash equivalents 3,992 2,880 5,285
Working capital 10,769 10,386 10,684
Current ratio 2.15:1 2.29:1 3.05:1
Secured notes payable 5 5 5
Working capital line available 7,761 8,140 8,759
<PAGE>
During Fiscal 1998, the Company's net cash provided by
operating activities was approximately $1,433,000. The cash
provided by operating activities resulted from a decrease in
inventory of $126,000, an increase in accounts payable and
accrued expenses of $260,000 and an increase in income tax
payable of $199,000 and an increase in deferred revenue of
$810,000, offset by an increase in accounts receivable of
$392,000 and deferred income tax of $350,000.
The Company used approximately $321,000 in investing
activities for the purchase of property, equipment and software.
The Company finances much of its business through "floor-
plan" financings, which are alternate credit lines provided by
manufacturers or through lines of credit provided by vendors. The
financing arrangements have aggregate credit limits of
approximately $6,800,000 and allow the Company to borrow for
between 30 and 60 days, interest-free. Interest is charged to the
Company only after the due date. These arrangements generally
provide for security interests in the related inventory and/or
accounts receivable and liens against all assets of the Company.
The Company also has a $5,000,000 revolving credit facility from
a bank, expiring on July 31, 1998, which the Company intends to
renew. All of the floor-plan borrowings are subordinated to the
Company's bank revolver except as to inventory and equipment, as
to which the floor-planners hold a first lien pursuant to
intercreditor agreements. At March 31, 1998 and 1997, the
Company's total outstanding debt under the floor-plan
arrangements was approximately $4,124,000 and $5,155,000,
respectively, and the revolver balance was $5,000 at the end of
each year.
The Company's current ratio decreased to 2.15:1 at March 31,
1998 from 2.29:1 at March 31, 1997.
The Company believes that expected cash flow from its
operations combined with available financing arrangements will be
sufficient to satisfy its expected cash requirements for the next
12 months and thereafter. There can be no assurance, however, that
changes in the Company's plans or other events affecting the Company
will not result in unexpected expenditures or cash requirements.
Termination of the Merger Agreement
On August 29, 1997, the Company entered into an Agreement
and Plan of Merger (The "Agreement") with BTG, Inc., a Virginia
corporation ("BTG"), and BTG Merger Sub, Inc., a wholly owned
subsidiary of BTG, pursuant to which the Company was to be
acquired by BTG for cash and stock valued at approximately $25
million.
On February 13, 1998, BTG, Inc. terminated the Agreement
with the Company. As a result of the default, BTG paid the
Company a $500,000 termination fee provided for in the Agreement.
In addition, BTG paid the Company an additional $350,000 for out-
of-pocket expenses in exchange for a release from future
liability which may arise as a result of the termination of the
Agreement. The Company recognized these payments as a reduction
to selling and administrative expenses, reflecting an offset
against the direct and indirect costs and expenses related to the
BTG merger.
The Company also entered into a cooperative marketing and
service agreement with BTG under which the Company received a non-
refundable advance payment of $900,000 from BTG for future
consulting services to be provided during the 10 months period
ending December 31, 1998. The Company is recognizing the revenue
ratably over the term of the contract. The Company recognized
$90,000 of income during the year ending March 31, 1998.The
Company is not required to provide services exceeding $900,000.
<PAGE>
Merger with Pivot Technologies, Inc
On May 18, 1998 (the "Pivot Closing"), the Company acquired
19.9% of the shares (the "Shares") of Pivot Technologies, Inc.
("Pivot"), a remote network service provider, and an option (the
"Option") to cause the merger ("Merger") of Pivot into a to be
created wholly-owned subsidiary of the Company. No assurance can
be given that the Company will exercise the Option. The
aggregate purchase price for the Shares and the granting of the
Option was $475,000, together with the Company`s obligation to
contribute additional sums of $60,000, $68,000, $68,000, $75,000
and $75,000 respectively on each of the first five monthly
anniversaries of the Pivot Closing, subject to Pivot's material
compliance with their business plan. The Company further agreed
to lend Pivot up to an additional $125,000 in six equal monthly
installments commencing shortly after the acquisition of the
Shares and the Option. The loan is to be repaid without interest
on the first anniversary of the Pivot Closing or the redemption
of the Company's interest in Pivot.
The Option expires fifteen days after the end of the six
month anniversary of the Pivot Closing ("Initial Option Period"),
subject to extension. The Initial Option Period, shall be
extended to up to three additional one month terms upon the
payment of an additional $80,000 prior to the expiration of the
Initial Option Period and the commencement of each addition
extension period, respectively. If the Option is exercised, the
Company will own all the issued and outstanding stock of Pivot
upon the effectiveness of the Merger (the "Effective Time"). At
such time, Pivot's stockholders, other than the Company and its
affiliates, will receive (i) shares of the Company's Common
Stock, $.001 par value per share having an aggregate value of
$1,100,000 based on the thirty trading day average closing price
of the Company Common Stock prior to the Pivot Closing (the
average price was $2.916767 which would require distribution of
approximately 377,130 shares of the Company's Common Stock), (ii)
a number of five year warrants, to acquire 100,000 shares of the
Company Common Stock at $2.916767, with such warrants becoming
first exercisable one-third at the end of each of the first three
years after the exercise of the Option, (iii) $337,600 in cash,
and (iv) if the Company elects to exercise its Option during any
of the extension periods, an additional amount of cash equal to
fifty percent of the net profit after taxes generated by Pivot
during the period commencing on the day after the end of the
Initial Option Period and ending at the date the Option is
exercised.
If the Company extends the Initial Option Period for each of
the three periods referred to above, but elects prior to the 75th
day after the end of the Initial Option Period not to exercise
its Option, Pivot will transfer to the Company, for no additional
consideration, shares of Pivot Common Stock so that the Company
will own on an aggregate basis, a 33.4 % interest in Pivot on a
fully-diluted basis as determined as the date the Company elects
not to exercise its Option.
In the event the Company does not exercise its Option, Pivot
shall have the right for one hundred eighty days after the option
lapses to redeem all of its shares owned by the Company for 115%
of the amount contributed by the Company as a capital
contribution or to extend the Option period. The Company will
have a right to put shares back to Pivot in the event the Option
is not exercised at such time as Pivot receives suitable
additional funding. The put price is the greater of (X) 125% of
the amount contributed by the Company as a capital contribution
or (Y) in the event the additional funding is equity financing or
the issuance of convertible debt, the then fair market value
thereof.
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
This information appears in Part IV, immediately following
Item 14 of this Report.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
None.
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The directors and executive officers of the Company are as
follows:
Name Age Position(s)
Howard Pavony 47 Chairman of the Board of
Directors
Steven H. Rothman 49 Chief Executive Officer,
President and a Director
Frank T. Wong 50 Vice President-Finance
and Secretary
Robert A. Fries 44 Vice President
Ramon Mota 36 Vice President-Technology
and a Director
William Lerner* 64 Director
Arnold J. Wasserman* 60 Director
___________
* Member of the Audit Committee and Compensation Committee.
Howard Pavony served as the Company's Co-Chief Executive
Officer, President and a Director since the Company's inception
in May 1986 and has served as Chairman of the Board of Directors
since September 1996. He has also served as Vice President of
MTM Advanced Technology, Inc. since 1986. From 1977 until 1986,
Mr Pavony was employed by Data Research Associates ("DRA"), a
computer hardware and accessories company, rising to the
positions of Vice President of Sales and member of the Executive
Board of DRA.
Steven H. Rothman served as the Company's Co-Chief Executive
Officer, Vice President, and a Director since the Company's
inception in May 1986 and has served as Chief Executive Officer,
President and Director since September 1996. Mr. Rothman was the
Company's Secretary from May 1986 to September 1995. He has also
served as President of MTM Advanced Technology, Inc. since 1986.
From 1976 until 1986, Mr. Rothman was employed by DRA, rising to
the positions of Director of Marketing and member of the
Executive Board.
Frank Wong has served as the Company's Vice
President-Finance since February 1992, as a Director from June
1993 to March 1998 and as Secretary since September 1995. Prior
thereto, from 1975 to 1991, he served as Chief Accountant of the
Carvel Corporation, a franchise ice cream distributor.
Robert A. Fries has served as a Vice President and was a
Director of the Company from May 6, 1996 to March 31, 1998. He
joined the Company as a result of the acquisition of Data.Com.
He was President of Data.Com RESULTS, Inc. from June 1986 until
he joined the Company and now serves as Co-President of Data.Com.
Ramon Mota has served as a Director of the Company since May
6, 1996. He joined the Company in October 1991, acting as a
technical salesperson for the Company and was promoted to
Director of Technology in June 1992. He became Vice President-
Technology of the Company in April 1993. He also has been Co-
President of Data.Com since May 1996. Prior thereto, from 1989
until September 1991, Mr. Mota served as an engineer with
Multitech System, Inc. a modem manufacturing and data
communications company.
<PAGE>
William Lerner has served as a Director of the Company since
September 1995 and is the Chairman of the Audit and Compensation
Committees. Mr. Lerner has been engaged in the private practice
of corporate and securities law in New York and Pennsylvania
since 1991. From 1990 to 1991, Mr. Lerner was Vice President and
general counsel to Hon Development Company, a California real
estate development company. From 1986 to 1990, Mr. Lerner was a
Vice President and general counsel of The Geneva Companies, a
California based business valuation and mergers and acquisitions
firm specializing in privately owned middle-market companies.
Mr. Lerner previously served as the Director of Compliance with
the American Stock Exchange and as a Branch Chief, Enforcement
Attorney for the Securities and Exchange Commission. Mr. Lerner
serves as a director of Helm; of Seitel, Inc., a New York Stock
Exchange listed company engaged in several facets of the oil and
gas business; and of Rent-Way, Inc., a NASDAQ listed company
engaged in the rent-to-own business.
Arnold J. Wasserman has, for the past 25 years, been a
principal of P & A Associates, a leasing/consulting firm. Prior
to that, he held positions with IBM and Litton Industries. Mr.
Wasserman has consulted with major corporations in the areas of
marketing, advertising and sales. He is a director of On-Sight
Sourcing, Inc. and Stratasys, Inc., both publicly traded
companies.
All directors hold office until the next annual meeting of
shareholders or until their successors are elected and qualify.
Officers are elected annually by, and serve at the discretion of,
the Board of Directors.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934
requires the Company's Officers, Directors and persons who own
more than ten percent of a registered class of the Company's
equity securities, to file reports of ownership and changes in
ownership with the Securities and Exchange Commission. Officers,
Directors and ten percent shareholders are required by regulation
to furnish the Company with copies of all Section 16(a) forms
they file. Based solely on the Company's copies of such forms
received or written representations from certain reporting
persons that no Form 5's were required for those persons, the
Company believes that, during the time period from April 1, 1997
to March 31, 1998, all filing requirements applicable to its
Officers, Directors and greater than ten percent beneficial
owners were complied with.
ITEM 11. EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
The following table sets forth all compensation awarded to,
earned by, or paid for all services rendered to the Company
during Fiscal 1998, Fiscal 1997 and Fiscal 1996 by certain
executive officers of the Company. No other executive officers
received compensation in excess of $100,000 during such years.
Long-Term
Annual Compensation(1) Compensation
Shares
Name and Principal Underlying
Position Year Salary($) Bonus($) Options(#)
- ------------------ ------ ---------- -------- ---------
Howard Pavony 1998 $213,334 $ -- --
Chairman of the Board 1997 $185,417 $20,000 50,000
1996 $165,000 $20,000 10,000
<PAGE>
Steven H. Rothman 1998 $213,334 $ -- --
President and CEO 1997 $185,417 $20,000 50,000
1996 $165,000 $20,000 10,000
Robert Fries 1998 $139,992 $ -- -
Vice President 1997 $103,326 -- 0
Ramon Mota 1998 $110,333 $ -- -
Vice-President 1997 $100,033 $ 9,000 5,000
Technology 1996 $ 95,000 $ 10,500 0
- --------------------
(1) The compensation figures shown do not include the cost to
the Company of benefits, including the use of automobiles
leased or car allowances paid by the Company, premiums for
life and health insurance and any other personal benefits
provided by the Company to such persons, which are, in the
aggregate, below reportable thresholds.
OPTION GRANTS IN LAST FISCAL YEAR
The table below includes the number of stock options granted
to the executive officers named in the Summary Compensation Table
during the year ended March 31, 1998, exercise information and
potential realizable value.
Value of
Number of Unexercised
Unexercised In-The-Money
Shares Options Options
Acquired at FY-End(#) at FY-End($)
on Exer- Value Exercisable/ Exercisable/
Name cise (#) Realized Unexercisable Unexercisable
- -------------- ------- --------- -------------- --------------
Steven H. Rothman 0 0 80,000/30,000 $_ / $_
Howard Pavony 0 0 80,000/30,000 $_ / $_
Robert Fries 0 0 0/0 $0 / $0
Ramon Mota 0 0 25,000/5,000 $0 / $7,500
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FY END OPTION
VALUES
The table below includes information regarding the value
realized on option exercises and the market value of unexercised
options held by the executive officers named in the Summary
Compensation Table during the year ended March 31, 1998.
Value of
Number of Unexercised
Unexercised In-The-Money
Shares Options Options
Acquired at FY-End(#) at FY-End($)
on Exer- Value Exercisable/ Exercisable/
Name cise (#) Realized Unexercisable Unexercisable
- --------------- ------- -------- ------------ --------------
Steven H. Rothman 0 0 80,000/30,000 $_ / $_
Howard Pavony 0 0 80,000/30,000 $_ / $_
Robert Fries 0 0 0/0 $0 / $0
Ramon Mota 0 0 25,000/5,000 $0 / $7,500
<PAGE>
DIRECTOR FEES
The Company's independent directors receive an annual fee of
$9,000 payable in quarterly installments in advance. In
addition, each independent director receives $1,500 for
attendance in person at each Board meeting and $250 for
participating in each telephonic board meeting held. Members of
the Audit Committee and Compensation Committee are appointed
annually and serve at the discretion of the Board of Directors.
Each member of each Committee will receive $1,000 for each
meeting attended in excess of five meetings of such committee per
year.
Management directors currently receive no cash compensation
for serving on the Board of Directors other than reimbursement of
reasonable expenses incurred in attending meetings. Certain of
the Company's directors have received stock options from the
Company. See "Stock Option Plans" below.
EMPLOYMENT AGREEMENTS
On September 1, 1996, Steven H. Rothman and Howard Pavony,
respectively the Chief Executive Officer and Chairman of the
Board of Directors of the Company, each entered into a five year
employment agreement with the Company on the terms set forth
below. Each agreement renews annually after the term unless
either party elects to terminate. Salary for the fiscal year
ending March 31, 1998 was at the rate of $200,000. Under each
agreement, the executive receives annual increases in salary
equal to the greater of (i) the percentage increase in the
Consumer Price Index; and (ii) $10,000. Each executive is
entitled to participate in the Company's stock option plans and
any incentive bonus program established from time to time, as
determined by the Compensation Committee of the Board of
Directors. Further, the Company will maintain a $1,000,000 life
insurance policy on each executive's life, payable to the
beneficiaries named by him, and maintain disability insurance for
the benefit of each executive which will pay $150,000 per annum
to him in the event of his permanent disability. In the event
that there is a change in control of the Company, the executive
will be entitled, upon such change of control, to terminate his
employment and receive 2.9 times his annual salary as then in
effect.
On April 1, 1996, the Company and Mr. Mota entered into a
three-year employment agreement providing for a base salary of
$98,000 in the first year, $105,000 in the second year and
$115,000 in the third year; a bonus depending upon the earnings
generated by the Advanced Technology Group; grants of five-year
options to purchase up to 5,000 shares of Common Stock in each of
the first two years of the term; and a $300 to $400/month car
allowance. The Company further agreed to use its best efforts to
designate Mr. Mota as a member of the Board of Directors during
the initial term of the agreement.
Simultaneously with the acquisition of Data.Com, on May 6,
1996, the Company and Mr. Fries entered into a three-year
employment agreement providing for a base salary of $140,000; a
bonus of 6% of earnings of Data.Com, but in no event more than
$60,000 with respect to a fiscal year; grants of up to a total of
20,000 incentive stock options over the three years, subject to
Data.Com's earning certain minimum amounts; and a $400/month car
allowance.
STOCK OPTION PLANS
The Company has established a 1993 Stock Option Plan (the
"1993 Plan") and a 1996 Stock Option Plan (the "1996 Plan") and,
subject to Shareholder approval, a 1998 Stock Option Plan (the
"1998 Plan")
Pursuant to the 1993 Plan, as of the date hereof, the
Company has granted an aggregate of 267,500 stock options,
including the grant of 20,000 options to the current outside
<PAGE>
directors of the Company on April 1, 1998. Of these, 113,333 are
currently exercisable, and 27,500 have been exercised to date.
117,500 options have been canceled to date or lapsed and made
available for regrant under the 1993 Plan.
An aggregate of 185,000 options have been granted to date
under the 1996 Plan. Of these, 25,000 are exercisable and
155,700 are unexercisable.4,300 options have been canceled to
date abd made available for request under the 1996 Plan. No
options have been exercised under the 1996 Plan, to date. No
options have been granted under the 1998 Plan.
As of the date hereof, Messrs. Pavony and Rothman each hold
incentive stock options expiring on October 19, 2000 to purchase
up to 10,000 shares of Common Stock at $6.125 per share and
incentive stock options expiring on August 31, 2001 to purchase
50,000 shares of Common Stock at $4.43 per share( in addtion,
each had option to purchase 50,000 shares of Common Stock lapse
om May 9, 1998); Mr. Mota holds incentive stock options expiring
on June 21, 1998 (issued in Fuscal 1994) to purchase up to 5,000
shares of Common Stock at $3.375 per share, incentive stock
options expiring on February 24, 1999 (issue in Fiscal 1994) to
purchase up to 15,000 shares of Common Stock at $1.25 per share,
incentive stock options expiring on November 30, 2001 to purchase
up to 5,000 shares of Common Stock at $2.50 per share and
incentive stock options expiring on March 31, 2002 to purchase up
to 5,000 shares of Common Stock at $3.875 per share; Mr. Wong
holds incentive stock options expiring on June 21, 1998 to
purchase 5,000 shares of Common Stock at $3.375 per share and
incentive stock options expiring on July 10, 2000 to purchase up
to 10,000 shares of Common Stock at $5.125 per share; Mr. Lerner
holds options expiring on September 14, 2000 to purchase up to
2,500 shares of Common Stock at $7.00 per share, options expiring
on August 19, 2001 to purchase up to 2,500 shares of Common Stock
at $4.0625 per share and options expiring on March 31, 2008 to
purchase up to 10,000 shares of Common Stock at $2.75 per share;
and Mr. Wasserman holds options expiring March 31, 2008 to
purchase up to 10,000 shares of Common Stock at $2.75 per share.
SUMMARY OF THE PLANS
The 1993 Plan, the 1996 Plan, and the 1998 Plan (each, a
"Plan"), provide for the grant of options to qualified employees
(including officers and directors) of the Company, and its
subsidiaries, independent contractors, consultants and certain
other individuals to purchase shares of Common Stock. Each Plan
must be administered by the Board of Directors or a committee of
at least two disinterested members (and no interested members) of
the Board of Directors (the "Compensation Committee"). The Board
or the Compensation Committee has complete discretion to select
the optionee and to establish the terms and conditions of each
option, subject to the provisions of the respective Plan. The
exercise price of options may not be less than 100% (no such
limitation with respect to the 1998 Plan) of the fair market
value of the Common Stock as of the date of grant (110% of the
fair market value if the grant is an Incentive Option to an
employee who owns more than 10% of the outstanding Common Stock).
Options may not be exercised more than 10 years after the date of
grant. An option may be exercised by tendering payment of the
purchase price to the Company or, at the discretion of the Board
of Directors or Compensation Committee, by delivery of shares of
Common Stock having a fair market value equal to the exercise
price or through a cashless exercise involving the cancellation
of a portion of the shares underlying the options ("Option
Shares") having a fair market value equal to the exercise price
of the Option Shares issued and with respect to the 1998 Plan, by
the cancellation of a number of options having an "in-the-money"
value equal to the average price of the Options Shares issued.
Options granted under the 1993 Plan and the 1996 Plan are not
transferable and may be exercised only by the respective grantees
during their lifetimes or by their heirs, executors or
administrators in the event of death. Under the 1998 Plan,
incentive stock options are as treated above, while non-qualified
stock options may at the options of the Board of Directors or
Compensation Committee, be transferable. Option Shares that are
<PAGE>
canceled or terminated may later be re-granted. The number of
options outstanding and the exercise price thereof are subject to
adjustment in the case of certain transactions such as mergers,
recapitalizations, stock splits or stock dividends.
The 1993 Plan provides for the grant of options to purchase
up to an aggregate of 250,000 Option Shares. Options granted
under the 1993 Plan may or may not be "incentive stock options"
as defined in Section 422 of the Code ("ISOs"), and non-qualified
stock options ("NQSOs") may be granted in tandem with Stock
Appreciation Rights ("SARs") or Stock Depreciation Rights,
depending upon the terms established by the Board or the
Compensation Committee at the time of grant.
The 1996 Plan provides for the grant of options to purchase
up to an aggregate of 350,000 Option Shares. Options granted
under the 1996 Plan may be ISOs or NQSOs and may be granted in
tandem with SARs, depending upon the terms established by the
Board or the Compensation Committee at the time of grant.
The 1998 Plan provides for the grant of options to purchase
up to an aggregate of 250,000 Option Shares. Options granted
under the 1998 Plan may be ISOs or NQSOs and may be granted in
tandem with SARs, depending upon the terms established by the
Board or the Compensation Committee at the time of grant.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
There are no compensation committee (or Board of Directors)
interlock relationships with respect to the Company.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth, as of the date hereof,
certain information concerning those persons known to the
Company, based on information obtained from such persons, with
respect to the beneficial ownership (as such term is defined in
Rule 13d-3 under the Securities Exchange Act of 1934) of Common
Shares and Preferred Stock by (i) each person known by the
Company to be the owner of more than 5% of the outstanding Common
Shares and Preferred Stock, (ii) each Director, (iii) each
executive officer named in the Summary Compensation Table and
(iv) all Directors and executive officers as a group.
Amount and Nature
of Beneficial Ownership Percent of Class (1)
Name and Address Common Common
of Beneficial Owner Shares Shares
- ------------------- --------------------- ---------------------
Steven H. Rothman(2) 1,108,625 (3)(4) 24.9%
Howard Pavony(2) 1,107,500 (3)(5) 24.9%
Robert A. Fries
71 Peria Drive
Rocky Hill, CT 06061 87,000 2.0%
Ramon Mota(2) 25,065 (3) *
William Lerner
423 East Beau Street
Washington, PA 15301 5,000 (3) *
Arnold Wasserman
1 Brookwood Drive
WestCaldwell, NJ 07006 0 (3) *
All Directors and
executive officers
as a group (6 persons) 2,333,190 (3)(4)(5) 52.4%
- -----------------
* Represents less than 1%.
(1) Based on 4,450,374 shares of Common Stock issued and
outstanding as of the date of this Report.
(2) The address of this person is c/o the Company, 614 Corporate
Way, Valley Cottage, New York 10989.
(3) Includes options held by Steven Rothman and Howard Pavony
each to purchase 30,000 shares of Common Stock, options to
purchase 25,000 shares held by Ramon Mota and to purchase
5,000 shares held by Mr. Lerner which are currently
exercisable. Does not include options held by each of
Messrs. Pavony and Rothman to purchase 30,000 shares option
held by Mr. Mota to purchase 5,000 shares which are not
currently exercisable and options to purchase 10,000 shares
held by Messrs. Lerner and Wasserman currently not
exercisable.
(4) Includes 1,125 shares held by the wife of Mr. Rothman. Also
includes an aggregate of 169,139 shares of Common Stock held
in trust for Mr. Rothman's three children. Mr. Rothman
disclaims beneficial ownership of all of such shares.
(5) Includes an aggregate of 164,044 shares held in trust for
Mr. Pavony's two children. Mr. Pavony disclaims beneficial
ownership of all of such shares.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
None.
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON
FORM 8-K
(a)(1) Financial Statements.
Independent Auditors' Report F-1
Consolidated Balance Sheets at March 31, 1998 and 1997 F-2
Consolidated Statements of Income for F-3
the years ended March 31, 1998, 1997 and 1996
Consolidated Statements of Changes in Shareholders' F-4
Equity for the years ended March 31, 1998, 1997
and 1996
Consolidated Statements of Cash Flows for the
the years ended March 31, 1998, 1997and 1996 F-5
Notes to Consolidated Financial Statements F-6
(2) Financial Statement Schedules
Financial Statement Schedules have been omitted because of
the absence of the conditions under which they are required
or because the required information, where material, is
shown in the Consolidated Financial Statements or the notes
thereto.
(3) Exhibits
2.1 Asset Purchase Agreement dated as of May 1, 1 996 by and
among DATA.COM RESULTS, INC. ("DATA.COM"), the sole
shareholder of DATA.COM, the Company and the Company's
wholly-owned subsidiary, DATA.COM DIRECT, INC. (4)
2.2 Stock Purchase and Option Agreement dated May 15, 1998 by
and among the Company, Pivot Technologies, Inc. and certain
Pivot Shareholders. (7)
3.1 Certificate of Incorporation of the Company, as amended.(1)
3.2 Certificate of Amendment filed September 10, 1996. (6)
3.3 By-Laws of the Company.(1)
10.1 Lease Agreement between the Company and Asso ciates of
Rockland County dated July 30, 1989 (1)
10.2 Revised 1993 Employee Stock Option Plan.(1)
10.3 Revolving Credit Line Agreement between The Bank of New
York and the Company.(1)
<PAGE>
10.4 Modification and Extension Agreement dated N ovember 12,
1992 between the Bank of New York and the Company.(1)
10.5 Remarketer/Integrator Agreement between Dell Marketing L.P.
and Company, as amended.(1)
10.6 Amendment to Lease between the Company and associates of
Rockland County dated as of July 23, 1992. (1)
10.7 Dealer Addendum, as amended, to IBM Agreement for
Authorized Dealers and Industry Remarketers.(1)
10.8 Master Purchase Agreement between Paine Webber Incorporated
and the Company.(1)
10.9 Agreement for Wholesale Financing between Deutsche
Financial Service (f/k/a/ ITT Commercial Finance Corp.) and
the Company.(1)
10.10 September 13, 1993 amendment to Paine Webber Incorporated
agreement.(1)
10.11 Extension Agreement between the Bank of New York and the
Company dated March 3, 1994.(2)
10.12 Agreement of Cancellation and Termination of Franchise
Agreement and general release, dated March 28, 1995.(3)
10.13 Amendment to Revolving Loan Agreement between the Company
and the Bank of New York, dated March 28, 1995.(3)
10.14 Pledge and Escrow Agreement dated as of May 6, 1996 among
the Company, Data.Com and Mr. Fries.(4)
10.15 Employment Agreement dated as of May 6, 1996 between the
Company and Mr. Fries.(4)
10.16 Employment Agreement dated April 1, 1996 between the Company
and Mr. Mota.(5)
10.17 Lease Extension between the Company and Associates of Rockland
County dated as of February 29, 1996.(5)
10.18 Employment Agreement between the Company and Steven H.
Rothman, dated September 1, 1996.(6)
10.19 Employment Agreement between the Company and Howard Pavony,
dated September 1, 1996.(6)
<PAGE>
10.20 Agreement and Plan of Merger by and among the Company, a to
be formed wholly-owned subsidiary, and Pivot Shareholders,
to be entered into if Option is exercised pursuant to Stock
Purchase and Option Agreement referred to in 2.2 above.(7)
10.21 Lease Agreement between 270 Madison Limited Partnership as
landlord and the Company as tenant for space located at 270
Madison Avenue.
11.1 Statement Re: Computation of Per Share Earnings
21.1 Subsidiaries of the Company.(5)
27.1 Financial Data Schedule.
1. Incorporated by reference from the Company's Registration
Statement on Form SB-2 for October 26, 1993 (No. 33-62932NY).
2. Incorporated by reference from the Company's Annual Report
on Form 10-KSB for the fiscal year ended March 31, 1994.
3. Incorporated by reference from the Company's Current Report
on Form 8-K dated March 28, 1995.
4. Incorporated by reference from the Company's Current Report
on Form 8-K dated May 6, 1996.
5. Incorporated by reference from the Company's Annual Report
on Form 10-K for the fiscal year ended March 31, 1996.
6. Incorporated by reference from the Company's Annual Report
on Form 10-K for the fiscal year ended March 31, 1997.
7. Incorporated by reference from the Company's Current Report
on Form 8-K dated May 15, 1998.
(b) Reports on Form 8-K.
The Company filed a Current Report on Form 8-K dated May 15,
1998, reporting that it had entered into an agreement to acquire a
19.9% interest in Pivot Technologies, Inc. and an option to cause
the merger thereof into the Company.
<PAGE>
Report of Independent Auditors
Board of Directors and Shareholders
Micros-To-Mainframes, Inc.
We have audited the accompanying consolidated balance sheets of Micros-
To-Mainframes, Inc. as of March 31, 1998 and 1997 and the related
consolidated statements of operations, changes in shareholders' equity
and cash flows for each of the three years in the period ended March
31, 1998. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on
these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform our audit
to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well
as evaluating the overall financial statement presentation. We believe
that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to
above present fairly, in all material respects, the consolidated
financial position of Micros-To-Mainframes, Inc. at March 31, 1998 and
1997 and the consolidated results of its operations and its cash flows
for each of the three years in the period ended March 31, 1998 in
conformity with generally accepted accounting principles.
/s/ Ernst & Young LLP
Stamford, Connecticut
May 29, 1998
F-1
<PAGE>
Micros-To-Mainframes, Inc.
Consolidated Balance Sheets
March 31,
1998 1997
------------------------
Assets
Current assets:
Cash and cash equivalents $ 3,991,593 $ 2,879,578
Accounts receivable - trade, less allowance
of $140,000 and $41,000 14,000,562 13,707,458
Inventory 1,332,322 1,458,467
Prepaid expenses and other current assets 396,618 410,817
Deferred income taxes 402,400 47,000
--------------------------
Total current assets 20,123,495 18,503,320
Property and equipment:
Leasehold improvements 100,206 97,426
Furniture, fixtures and other equipment 1,852,350 1,555,840
--------------------------
1,952,556 1,653,266
Less accumulated deprecation
and amortization 877,683 626,940
-------------------------
1,074,873 1,026,326
Goodwill, net of accumulated amortization
of $113,819 and $54,450 777,181 836,550
Other assets 100,951 94,294
--------------------------
Total assets $22,076,500 $20,460,490
==========================
Liabilities and shareholders' equity
Current liabilities:
Secured notes payable $ 5,000 5,000
Accounts payable and accrued expenses 8,166,141 7,905,693
Income taxes payable 373,284 174,553
Deferred revenue 810,000 -
-------------------------
Total current liabilities 9,354,425 8,085,246
Deferred income taxes 37,000 32,000
-------------------------
Total liabilities 9,391,425 8,117,246
Shareholders' equity:
Common stock, $.001 par value; 10,000,000
shares authorized; 4,450,374 shares issued
and outstanding at March 31, 1998 and 1997 4,450 4,450
Additional paid-in capital 12,807,900 12,807,900
Retained equity (deficit) (127,275) (469,106)
------------------------
Total shareholders' equity 12,685,075 12,343,244
-------------------------
Total liabilities and shareholders' equity $22,076,500 $20,428,490
=========================
See accompanying notes.
F-2
<PAGE>
Micros-To-Mainframes, Inc.
Consolidated Statements of Operations
Year ended March 31,
1998 1997 1996
---------------------------------
Net revenues:
Products $54,378,851 $51,646,003 $42,789,681
Services 15,222,379 6,416,470 4,536,656
--------------------------------------
69,601,230 58,062,473 47,326,337
Costs and expenses:
Cost of products sold 51,912,015 47,548,895 40,452,206
Cost of services provided 9,413,815 2,419,527 1,108,941
Selling, general and administrative
expenses 7,796,253 6,698,265 4,070,111
Compensatory stock arrangement - - 4,655,000
--------------------------------------
69,122,083 56,666,687 50,286,258
Other income 163,121 140,788 66,179
Interest expense 13,437 6,136 13,325
---------------------------------------
Income (loss) from operations before
income taxes 628,831 1,530,438 (2,907,067)
Provision for income taxes 287,000 620,450 707,000
----------------------------------------
Net income (loss) $ 341,831 $ 909,988 $(3,614,067)
========================================
Net income (loss) per common share:
Basic $ .08 $ .21 $ (1.43)
========================================
Diluted $ .08 $ .20 $ (1.43)
========================================
Weighted average number of common
and common equivalent shares used
in calculation:
Basic 4,450,374 4,425,073 2,532,777
=========================================
Diluted 4,483,881 4,491,319 2,532,777
=========================================
See accompanying notes.
F-3
<PAGE>
Micros-To-Mainframes, Inc.
Consolidated Statements of Changes in
Shareholders' Equity
<TABLE>
<CAPTION>
Preferred Stock Common Stock
--------------- ---------------
Number Number Additional Retained
of of Paid-In Earnings/
Shares Amount Shares Amount Capital (Deficit) Total
----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at March 31,1995 1,400,000 $1,400 2,177,410 $2,178 $ 2,627,485 $2,234,973 $ 4,866,036
Issuance of common
stock:
Employee options
exercised 7,500 7 14,680 14,687
Underwriter
Representative
Warrants exercised 100,000 100 438,650 438,750
Warrants exercised and
redeemed less offering
expenses of $78,076 1,078,464 1,078 4,638,959 4,640,037
Compensatory stock
arrangement 4,655,000 4,655,000
Net loss (3,614,067) (3,614,067)
-----------------------------------------------------------------------------
Balance at March 31,1996 1,400,000 1,400 3,363,374 3,363 12,374,774 (1,379,094) 11,000,443
Conversion of preferred
stock (1,400,000) (1,400) 980,000 980 420 -
Issuance of common
stock:
Employee options
exercised 20,000 20 24,980 25,000
Acquisition of
subsidiary 87,000 87 407,726 407,813
Net income 909,988 909,988
----------------------------------------------------------------------------
Balance at March 31,1997 - - 4,450,374 4,450 12,807,900 (469,106) 12,343,244
Net income - - - - - 341,831 341,831
---------------------------------------------------------------------------
Balance at March 31,1998 - $ - 4,450,374 $4,450 $12,807,900 $ (127,275) $12,685,075
===========================================================================
</TABLE>
See accompanying notes.
F-4
<PAGE>
Micros-To-Mainframes, Inc.
Consolidated Statements of Cash Flows
<TABLE>
<CAPTION>
Year ended March 31,
1998 1997 1996
-------------------------------
<S> <C> <C> <C>
Operating activities
Net income (loss) $ 341,831 $ 909,988 $(3,614,067)
Adjustments to reconcile net income
(loss) to net cash provided by (used
in) operating activities:
Depreciation and amortization 331,976 223,506 90,269
Compensatory stock arrangement - - 4,655,000
Deferred income taxes (350,400) - -
Bad debt expense 99,000 - -
Other non-cash charges (credits) - 5,000 (14,000)
Changes in operating assets and
liabilities, net of effects of
acquisition in 1997:
Accounts receivable (392,104) (3,418,345) (2,121,743)
Inventory 126,145 (96,068) (278,951)
Prepaid expenses and other current
assets 14,199 22,609 (158,679)
Other assets (6,657) (25,132) (38,883)
Accounts payable and accrued expenses 260,448 1,886,072 801,777
Income taxes payable 198,731 55,413 (147,314)
Deferred revenue 810,000 - -
-----------------------------------------
Net cash provided by (used in) operating
activities 1,433,169 (436,957) (826,591)
Investing activities
Purchase of property and equipment (321,154) (682,034) (149,304)
Purchase of subsidiary, net of cash
acquired - (1,311,018) -
-----------------------------------------
Net cash used in investing activities (321,154) (1,993,052) (149,304)
Financing activities
Net proceeds from issuance of common
stock - 25,000 5,093,474
-----------------------------------------
Net cash provided by financing
activities - 25,000 5,093,474
----------------------------------------
Increase (decrease) in cash 1,112,015 (2,405,009) 4,117,579
Cash and cash equivalents at beginning
of year 2,879,578 5,284,587 1,167,008
---------------------------------------
Cash and cash equivalents at end of year $ 3,991,593 $2,879,578 $ 5,284,587
========================================
</TABLE>
See accompanying notes.
F-5
<PAGE>
Micros-To-Mainframes, Inc.
Notes to Consolidated Financial Statements
1. Summary of Significant Accounting Policies
Principles of Consolidation and Nature of Operations
The accompanying consolidated financial statements include the
accounts of Micros-To-Mainframes, Inc. and its wholly-owned
subsidiaries, Data.Com RESULTS, Inc., "Data.Com" (see Note 7) and MTM
Advanced Technology, Inc., hereafter, collectively referred to as the
"Company". Significant intercompany accounts and transactions have
been eliminated. The Company is a premier provider of network analysis
& diagnostics, management, architecture, design, implementation and
support services serving the New York Tri-State area. The Company
practices in Network Protocol Analysis, Network OS Consulting,
Internet & Network Security, Integrated Communications, and Life Cycle
Managed Services create a comprehensive computer and communication
services suite. Their many corporate, commercial, and institutional
clients choose the Company for best practices support from the end
user to the enterprise.
The Company purchases microcomputers and related products directly
from suppliers as either an authorized dealer or a value added
reseller. The Company has entered into authorization agreements with
major suppliers which can be terminated by the supplier, with or
without cause, upon 30 to 90 days notice, or immediately upon the
occurrence of certain events. Sales of products purchased from the
Company's two largest suppliers were 23% and 16% in fiscal 1998. In
fiscal 1997, product from three of the Company's largest suppliers
accounted for 20%, 26%, and 13% of sales. In fiscal 1996, product from
these three suppliers accounted for 24% , 26%, and 13% of sales. The
Company believes that it has excellent relationships with its major
suppliers, however, there can be no assurance that the aforementioned
agreements will be renewed. If these agreements are not renewed the
Company may have difficulty obtaining inventory at a cost which would
allow for resale at a competitive market price.
Certain amounts have been reclassified to conform to current year
presentation.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from
those estimates.
Cash and Cash Equivalents
Cash and cash equivalents generally consist of cash, certificates of
deposit, commercial paper and money market funds holding similar
investments. The Company considers all highly liquid investments
purchased with a maturity of three months or less to be cash
equivalents. Such investments are stated at cost which approximates
fair value, and are considered cash equivalents for purposes of
reporting cash flows.
Inventories
Inventories, comprised principally of computer hardware and software,
are stated at the lower-of-cost or market using the first-in, first-
out (FIFO) method.
F-6
<PAGE>
Micros-To-Mainframes, Inc.
Notes to Consolidated Financial Statements (continued)
1. Summary of Significant Accounting Policies (continued)
Property and Equipment
Property and equipment are stated at cost and are depreciated using
the straight-line method. Furniture, fixtures and other equipment have
useful lives ranging from 3 to 7 years.
Leasehold improvements are depreciated over the shorter of the lease
term or economic life of the related improvement. Expenditures which
extend the useful lives of existing assets are capitalized.
Maintenance and repair costs are charged to operations as incurred.
The Company incurred approximately $273,000, $169,000 and $90,000 in
depreciation expense for the years ended March 31, 1998, 1997 and
1996, respectively.
Goodwill
The goodwill is being amortized using the straight-line method over 15
years (see Note 7).
Impairment of Long-Lived Assets
Long-lived assets, including goodwill, are reviewed for impairment and
written down to fair value whenever events or changes in circumstances
indicate that the carrying amount of the asset may not be recoverable.
At March 31, 1998, no such impairment existed. The Company measures
the potential impairment of long-lived assets, including goodwill, by
the undiscounted value of expected operating cash flow in relation to
the assets to which it applies.
Income Taxes
Deferred income taxes are provided, using the liability method, for
temporary differences between financial and tax reporting, which arise
principally from the deductions related to the allowances for doubtful
accounts, certain deferred contract revenues, the basis of inventory
and differences arising from book versus tax depreciation methods.
Revenue Recognition
The Company recognizes revenue upon the shipment of ordered
merchandise and as technical services are rendered.
Fair Value of Financial Instruments
The estimated fair value of amounts reported in the consolidated
financial statements have been determined by using available market
information and appropriate valuation methodologies. All current
assets and current liabilities are carried at their cost, which
approximates fair value, because of their short term nature.
Stock Based Compensation
The Company has granted stock options for a fixed number of shares to
employees with an exercise price equal to the fair value of the shares
at the date of grant. The Company has accounted for stock option
grants in accordance with Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees" (APB 25), and intends to
continue to do so.
F-7
<PAGE>
Micros-To-Mainframes, Inc.
Notes to Consolidated Financial Statements (continued)
1. Summary of Significant Accounting Policies (continued)
Earnings Per Share
The Company adopted Statement of Financial Accounting Standards No.
128, "Earnings Per Share" ("FAS No. 128"), which supersedes APB
Opinion No. 15, "Earnings Per Share", and specifies the computation,
presentation, and disclosure requirements for earnings per share
("EPS") for entities with publicly held common stock or potential
common stock. FAS No. 128 replaces primary and fully diluted EPS with
basic and diluted EPS, respectively. It also requires dual
presentation of Basic EPS and Diluted EPS on the face of the income
statement and requires a reconciliation of the numerator and
denominator of the Basic EPS computation to the numerator and
denominator of the Diluted EPS computation.
Basic EPS, unlike Primary EPS, excludes all dilution while Diluted
EPS, like Fully Diluted EPS reflects the potential dilution that could
occur if securities or other contracts to issue common stock were
exercised or converted into common stock or resulted in the issuance
of common stock that then shared in the earnings of the entity.
Earnings per share for 1997 and 1996 have been restated to conform to
the requirements of FAS No. 128.
Concentrations of Credit Risk
Financial instruments that potentially subject the Company to
significant concentrations of credit risk consist principally of cash
and cash equivalents and trade accounts receivable. The Company places
its cash with high credit quality institutions. At times, such amounts
may be in excess of the FDIC insurance limits.
The Company's customers are primarily mid to large size corporations
in diversified industries located in the New York tri-state area.
Receivables from the Company's largest customer approximated 26% of
trade receivables at March 31, 1998. Receivables from two major
customers approximated 18% and 13% of the Company's trade receivables
at March 31, 1997. One customer accounted for approximately 13% of the
Company's revenue for fiscal 1998. Two customers each accounted for
13% of the Company's revenues in fiscal 1997, and 18% and 16% in
fiscal 1996. The loss of a principal customer would be expected to
have a material adverse effect on the Company's operations during the
short term until the Company is able to generate replacement business,
although there can be no assurance of obtaining such business.
Credit is extended to customers based on an evaluation of their
financial condition, and collateral is generally not required. The
evaluation of financial condition is performed to reduce the risk of
loss. The Company has not historically experienced any material losses
due to uncollectible accounts receivable.
F-8
<PAGE>
Micros-To-Mainframes, Inc.
Notes to Consolidated Financial Statements (continued)
2. Credit Facilities
The Company has entered into several financing agreements for the
purchase of inventory. These agreements aggregate approximately
$6,800,000 at March 31, 1998 and $8,300,000 (approximately $2,676,000
and $3,145,000 unused) at March 31, 1998 and 1997, respectively, and
generally provide for thirty day repayment terms. Current borrowings
under these agreements are included in accounts payable and accrued
liabilities. These agreements are secured by the related inventory
and/or accounts receivable and liens against all assets of the
Company. In addition, one of these agreements provides for minimum
amounts of tangible net worth and specified financial ratios. These
agreements will remain in effect until terminated by either party. All
such borrowings are subordinated to the bank financing, except as to
inventory and equipment, pursuant to an intercreditor agreement (see
below).
A revolving credit facility expiring July 31, 1998 allows the Company
to borrow up to $5,000,000 with an interest rate of either (1) the
bank's Alternate Base Rate (ABR); or (2) the Eurodollar rate plus 2%,
depending on certain factors as stipulated in the agreement. At March
31, 1998 and 1997, the Company had $5,000 outstanding under this
facility with interest payable at the bank's ABR of 8.50%.
The revolving credit facility provides, among other matters for: (i) a
general security interest first lien on all of the Company's assets (a
second lien to the extent a first lien on inventory and/or accounts
receivable is held under the financing agreements described above);
(ii) unconditional guarantees of MTM Advanced Technology, Inc. and
(iii) requirements, including limitations on additional borrowings,
minimum levels of shareholders' equity, restrictions on certain
transactions, including the payment of dividends, and specified
financial ratios.
Interest paid during fiscal 1998, 1997 and 1996 aggregated
approximately $13,000, $6,000 and $1,000, respectively.
3. Shareholders' Equity
In connection with the Company's initial public offering of common
stock, the Company issued 1,000,000 Warrants entitling the holders to
purchase common shares, and 100,000 Representative's Warrants
entitling the holders to purchase units (consisting of one common
share and one warrant). The 1,000,000 Warrants entitled the holders to
purchase shares of common stock at an exercise price of $4.375 per
share from October 26, 1993 through October 26, 1997. The 100,000
Representative's Warrants entitled the holders to purchase units at an
exercise price of $4.3875 per unit, from October 26, 1994 through
October 26, 1998. During fiscal 1996, substantially all of the
Company's Warrants and all of the Representative's Warrants were
exercised resulting in the issuance of 1,178,464 shares of common
stock.
F-9
<PAGE>
Micros-To-Mainframes, Inc.
Notes to Consolidated Financial Statements (continued)
3. Shareholders' Equity (continued)
Preferred Shares
In the fourth quarter of fiscal 1996, the thresholds for
convertibility of 1,400,000 shares of preferred stock were considered
probable. In conjunction with this determination, the Company and the
holders of the preferred shares committed to accelerate the
convertibility and fix the amount of compensation expense to be
charged to earnings. The Board of Directors and the preferred
shareholders agreed subject to the receipt of necessary stockholders'
consent and an independent appraisal as to the equivalent value of the
preferred stock and the common stock, to the conversion of the
preferred shares into common shares. The appraisal concluded that the
1,400,000 preferred shares were equivalent to 980,000 common shares.
The conversion was consummated upon stockholder approval at the August
20, 1996 meeting of Company stockholders. Based on the market value of
the Company's common stock at March 31, 1996, the Company recognized a
non-recurring, non-cash charge of $4,655,000.
In addition, at the Annual Meeting of Shareholders on August 20, 1996,
the Company amended its Certificate of Incorporation, eliminating the
old Series A Preferred Stock and authorizing a new class of 2,000,000
shares of "blank check" preferred stock, par value $.001 per share. As
of March 31, 1998, there were no preferred shares issued and
outstanding.
Employee Stock Option Plan
The 1993 Employee Stock Option Plan (the 1993 Plan) was adopted by the
Company in May 1993 and the 1996 Stock Option Plan (the 1996 Plan) was
approved by the shareholders of the Company on August 20, 1996. The
Plans provide for granting of options, including incentive stock
options, non-qualified stock options and stock appreciation rights to
qualified employees (including officers and directors) of the Company,
independent contractors, consultants and other individuals, to
purchase up to an aggregate of 250,000 and 350,000 shares of common
stock in the 1993 Plan and 1996 Plan, respectively. The exercise price
of options generally, may not be less than 100% of the fair market
value of the Company's' common stock at the date of grant. Options may
not be exercised more than ten years after the date of grant. Options
granted under the Plans become exercisable in accordance with
different vesting schedules depending on the duration of the options.
F-10
<PAGE>
Micros-To-Mainframes, Inc.
Notes to Consolidated Financial Statements (continued)
3. Shareholders' Equity (continued)
Information regarding the Company's stock option plans is summarized
below:
<TABLE>
<CAPTION>
1993 Plan 1996 Plan
------------------------------------------------
Number Option Number Option
of Exercise of Exercise
Options Price Per Options Price Per
Share Share
------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at March 31, 1995 195,000 $1.25 - $3.375
Terminated and canceled (2,500) $3.375
Options issued during the year 40,000 $5.125-$7.00
Options exercised during the year (7,500) $1.25 -$3.375
---------
Outstanding at March 31, 1996 225,000 $1.25 -$7.00
Options issued during the year 15,000 $3.94 - $4.06 145,000 $2.50 - $4.43
Options exercised during the year (20,000) $1.25 -
--------- --------
Outstanding at March 31, 1997 220,000 $1.25 - $7.00 145,000 $2.50 - $4.43
Option issued during the year - - 40,000 $2.875 -$3.875
Options canceled during the year - - (4,300) $2.875
--------- --------
Outstanding at March 31, 1998 220,000 $1.25 - $7.00 180,700 $2.50-$4.43
</TABLE>
The weighted-average exercise price of the total options outstanding
at March 31,1998 is $3.82 and the weighted-average contractual life is
8.2 years.
The weighted-average fair value of options granted during fiscal 1998
and 1997 is $2.77 and $3.41, respectively.
There were 213,333 and 202,500 options exercisable at March 31, 1998
and 1997, under the 1993 Plan and 25,000 options exercisable at March
31, 1998 under the 1996 Plan.
The Company has elected to follow APB 25 and related interpretations
in accounting for its employee stock options because, as discussed
below, the alternative fair value accounting provided for under FASB
Statement No. 123, "Accounting for Stock-Based Compensation," requires
use of option valuation models that were not developed for use in
valuing employee stock options. Under APB 25, because the exercise
price of the Company's employee stock options equal the market price
of the underlying stock on the date of grant, no compensation expense
is recognized.
Pro forma information regarding net income and earnings per share is
required by Statement 123, and has been determined as if the Company
had accounted for its employee stock options under the fair value
method of the Statement. The fair value of these options was estimated
at the date of grant using a Black-Scholes option pricing model with
the following weighted-average assumptions for fiscal 1998 and 1997
and 1996, respectively: risk-free interest rate 6.0%; no dividend
yield; a volatility factor of the expected market price of the
Company's Common Stock of 0.57, 0.78 and 0.91 and an expected life of
8.0, 8.5 and 8.1 years.
F-11
<PAGE>
Micros-To-Mainframes, Inc.
Notes to Consolidated Financial Statements (continued)
3. Shareholders' Equity (continued)
The Black-Scholes option valuation model was developed for use in
estimating the fair value of traded options which have no vesting
restrictions and are fully transferable. In addition, option valuation
models require the input of highly subjective assumptions including
the expected stock price volatility. Because the Company's employee
stock options have characteristics significantly different from those
of traded options, and because changes in the subjective input
assumptions can materially affect the fair value estimate, in
management's opinion, the existing models do not necessarily provide a
reliable single measure of the fair value of its employee stock
options.
For purposes of pro forma disclosures, the estimated fair value of the
options is amortized to expense over the options' vesting period. The
Company's pro forma information is as follows:
Year ended March 31,
1998 1997 1996
---------------------------------
Pro forma net income (loss) $301,225 $883,825 $(3,702,449)
==================================
Pro forma income (loss) per share -
basic and diluted $ .07 $ .20 $ (1.46)
==================================
In accordance with the provisions of Statement 123, the pro forma
disclosures include only the effect of stock options granted in fiscal
years beginning after December 15, 1994. The application of the pro
forma disclosures presented above are not representative of the
effects of Statement 123 may have on net earnings and earnings per
share in future years due to the timing of stock option grants and
considering that options vest over several years.
Earnings Per Share
The following table presents the computation of basic and diluted
income (loss) per share:
1998 1997 1996
-----------------------------------
Numerator:
Net income (loss) $ 341,831 $ 909,988 $(3,614,067)
===================================
Denominator:
Denominator for basic earnings
per share-weighted-average shares 4,450,374 4,425,073 2,532,777
Dilutive effect of employee
stock options and warrants 33,507 66,246 -
------------------------------------
Denominator for diluted earnings
per share 4,483,881 4,491,319 2,532,777
-------------------------------------
Net income (loss) per share-basic $ .08 $ .21 $ (1.43)
====================================
Net income (loss) per share-diluted $ .08 $ .20 $ (1.43)
====================================
F-12
<PAGE>
Micros-To-Mainframes, Inc.
Notes to Consolidated Financial Statements (continued)
3. Shareholders' Equity (continued)
Options to purchase 45,000 and 155,000 shares of common stock,
outstanding as of March 31, 1998 and 1997, respectively, were not
included in the computation of diluted earnings per share because
their inclusion would be antidilutive. Options to purchase 225,000
shares of common stock as of March 31, 1996 were not included in the
computation of diluted earnings per share because the Company had a
net loss in 1996, and therefore, the inclusion of those options would
be antidilutive. The conversion of the Company's preferred stock into
980,000 shares of common stock were excluded from the March 31, 1996
calculation of diluted earnings per share as the specified earnings
targets had not been met at such date.
4. Income Taxes
The liability method is used in accounting for income taxes. Under
this method, deferred tax assets and liabilities are determined based
on differences between financial reporting and tax bases of assets and
liabilities and are measured using the enacted tax rates and laws that
will be in effect when the differences are expected to reverse.
The provision for income taxes consists of the following:
Year ended March 31,
1998 1997 1996
-----------------------------
Federal:
Current $513,100 $463,450 $568,300
Deferred (289,000) 5,000 (14,000)
-------------------------------
224,100 468,450 554,300
State:
Current 124,300 152,000 152,700
Deferred (61,400) - -
-------------------------------
$287,000 $620,450 $707,000
==============================
The reconciliations of income tax computed at the federal statutory
tax rates to actual income tax expense are as follows:
Year ended March 31,
1998 1997 1996
-------------------------------
Tax expense (benefit) at statutory
rates applied to pretax earnings $213,800 $520,000 $(988,000)
Compensatory stock arrangement
without tax benefit - - 1,583,000
State income taxes, net of federal
benefit 41,500 100,000 101,000
Other 31,700 450 11,000
-------------------------------
$287,000 $620,450 $ 707,000
===============================
F-13
<PAGE>
Micros-To-Mainframes, Inc.
Notes to Consolidated Financial Statements (continued)
4. Income Taxes (continued)
Significant components of the Company's deferred tax assets and
liabilities are as follows:
1998 1997
-------------------------
Deferred tax assets:
Reserve for bad debts $ 54,000 $ 17,000
Inventory reserve 24,000 21,000
Deferred revenue 313,000 -
Other, net 11,400 9,000
---------------------
402,400 47,000
Deferred tax liabilities:
Depreciation 37,000 32,000
----------------------
Net deferred tax assets $365,400 $ 15,000
======================
Income taxes paid during fiscal 1998, 1997 and 1996 aggregated
approximately $557,000, $560,000, and $871,000, respectively.
5. Commitments and Contingencies
Leases
The Company leases three locations for its administrative and
operational functions under operating leases through August 2002. The
Company is presently negotiating the renewal terms for its Valley
Cottage, NY and Manhattan locations. In addition, the Company leases
five cars for the use of certain employees, including its officers, as
well as office equipment.
Future minimum annual lease payments under operating leases are as
follows:
Twelve months ending:
March 31, 1999 $114,900
March 31, 2000 53,150
March 31, 2001 22,325
March 31, 2002 3,380
March 31, 2003 -
--------
$193,755
========
Rental expense for operating leases approximated $356,000, $460,000
and $210,000, respectively, for fiscal 1998, 1997 and 1996.
F-14
<PAGE>
Micros-To-Mainframes, Inc.
Notes to Consolidated Financial Statements (continued)
6. Employee Savings Plan
The Company has an employee savings plan which qualifies under Section
401(k) of the Internal Revenue Code. Under the plan, all employees who
are at least 21 years of age and have completed one year of service
are eligible to defer up to 15% of their pre-tax compensation, but not
more than $9,500 per calendar year. The Company matches 10% of
employee contributions to a maximum of six percent of the employees
salary. The Company contributed approximately $18,000 and $12,000 to
the plan in fiscal 1998 and 1997 respectively.
7. Acquisition of Data.Com RESULTS, Inc.
On May 6, 1996, a subsidiary of the Company, acquired substantially
all of the assets of Data.Com, in exchange for issuance of 87,000
shares of common stock of the company (valued at approximately
$407,000), and the assumption of certain of Data.Com's payables
(primarily trade). Data.Com is a data communication, wide area network
(WAN) and local area network (LAN) consultant and advanced technology
solutions provider primarily serving clients located in Connecticut.
The acquisition has been accounted for using the purchase method of
accounting, and, accordingly, the purchase price has been allocated to
the assets acquired and the liabilities assumed based upon the fair
values at the date of acquisition. The excess of the purchase price
over the fair values of the net assets acquired was approximately
$891,000 and has been recorded as goodwill, which is being amortized
on a straight-line basis over 15 years.
In addition to the above consideration, contingent consideration is
payable in the Company's common stock based upon defined future levels
of Data.Com's earnings before taxes, depreciation, and amortization
("EBTDA") through Fiscal 1999. The maximum number of shares to be
issued are 25,000, 25,000, and 35,000 in fiscal 1997, 1998, and 1999,
respectively. The contingent consideration is not included in the
calculation of the acquisition cost. No shares were issued in fiscal
1998 or 1997. Compensation expense will be recognized during the
target period; when such targets are considered achievable, based on
the market value of the Company's common stock.
In addition to the above contingent consideration, the president of
Data.Com will be issued 5,000 and 10,000 stock options in Fiscal 1998
and 1999, respectively, if Data.Com's EBTDA is greater than $1.25
million and $1.35 million for 1998 and 1999, respectively. The option
price for any option so granted shall be 110% of the fair market value
of the Company's common stock as at the first day of the taxable year
in which the respective options, if any, are granted. The options
shall not vest until the first day of the taxable year following the
year of grant, at which time all such options shall vest. Compensation
expense will be recognized during the target period; when such targets
are considered achievable, based on the market value of the Company's
common stock.
The following summarized pro forma results of operations for the years
ended March 31, 1997 and 1996 and have been prepared assuming the
acquisition occurred at the beginning of the respective periods.
1997 1996
Net sales $58,907,524 $ 52,518,181
Net income (loss) 957,704 (3,775,433)
Earnings (loss) per share:
Basic .22 (1.49)
Diluted .21 (1.49)
F-15
<PAGE>
Micros-To-Mainframes, Inc.
Notes to Consolidated Financial Statements (continued)
8. Termination of the Merger Agreement
On August 29, 1997, the Company entered into an Agreement and Plan of
Merger (the "Agreement") with BTG, Inc., a Virginia corporation
("BTG"), and BTG Merger Sub, Inc., a wholly-owned subsidiary of BTG,
pursuant to which the Company was to be acquired by BTG for cash and
stock valued at approximately $25 million.
On February 13, 1998, BTG, Inc. terminated the Agreement with the
Company. As a result of the default BTG paid the Company a $500,000
termination fee. In addition, BTG paid the Company for out-of-pocket
expenses of $350,000 in exchange for a release from future liability
which may arise as a result of the termination of the Agreement. The
Company recognized these payments as a reduction to selling, general
and administrative expenses, reflecting an offset against the direct
and indirect costs and expenses related to the BTG merger.
The Company also entered into a cooperative marketing and service
agreement with BTG, under which the Company received a non-refundable
payment of $900,000 from BTG for consulting services to be provided
during the 10 month period ending December 31, 1998. The Company is
recognizing this revenue ratably over the term of the contract. The
Company recognized $90,000 of income during the year ended March 31,
1998. The Company is not required to provide services exceeding
$900,000.
F-16
<PAGE>
Micros-To-Mainframes, Inc.
Notes to Consolidated Financial Statements (continued)
9. Quarterly Results of Operations (Unaudited)
The following is a summary of the quarterly results of operations for
the years ended March 31, 1998, 1997 and 1996:
June 30 September 30 December 31 March 31
-------------------------------------------------
(In Thousands, except per-share data)
Fiscal 1998
Net revenues $17,576 $17,338 $15,835 $18,852
Cost of products sold 13,656 13,333 11,162 13,761
Cost of services provided 1,887 1,992 2,467 3,068
Net income 130 128 73 11 (1)
Net income per common
share:
Basic .03 .03 .02 .00 (1)
Diluted .03 .03 .02 .00 (1)
Fiscal 1997
Net revenues $13,311 $13,450 $13,679 $17,622
Cost of products sold 10,999 11,245 11,024 14,289
Cost of services provided 427 539 655 798
Net income (loss) 256 79 171 404
Net income (loss) per
common share:
Basic .06 .02 .04 .09
Diluted .06 .02 .04 .09
Earnings per common share calculations for each of the quarters were
based on the weighted average number of shares outstanding for each
period, and the sum of the quarters may not necessarily be equal to
the full year earnings per common share amount.
(1)Includes a termination fee of $850,000 (approximately $370,000
after tax) received from BTG. This amount was recognized as a
reduction to selling, general and administrative expenses, as an
offset against the direct and indirect costs and expenses related
to the BTG merger.
F-17
<PAGE>
Micros-To-Mainframes, Inc.
Notes to Consolidated Financial Statements (continued)
10. Subsequent Events
On May 18, 1998, the Company acquired 19.9% of Pivot Technologies,
Inc. ("Pivot"), a remote network servicer, and an option (the
"Option") to cause the merger of Pivot into a to be created wholly-
owned subsidiary of the Company. In consideration for the Option and
the Pivot Shares, Micros-to-Mainframes paid Pivot (exclusive of the
merger consideration payable upon any exercise of the Option) $475,000
and agreed to make further payments if Pivot is in material compliance
with its Business Plan, as defined in the Purchase and Option
Agreement, up to an aggregate of $346,000 over a five month period
commencing one month after Closing. The Company further agreed to lend
Pivot up to an additional $125,000 in six (6) equal monthly
installments. Such loan is payable, without interest, twelve months
after its issuance, or upon redemption of MTM's interest in the event
the Option is exercised. No assurance can be given that the Company
will exercise the Option. Pursuant to the Option, the shareholders of
Pivot (exclusive of MTM) would receive 377,130 shares of MTM's Common
Stock, five (5) year warrants to acquire 100,000 shares of MTM's
Common Stock at $2.916767 per share, with such warrants becoming first
exercisable one-third at the end of each of the first three years
after the exercise of the Option, and $337,600 in cash. The Option has
a term of six (6) months, and may be extended for up to three
additional one month terms upon the payment of an additional $80,000
prior to the expiration of the Initial Option Period and the
commencement of each additional extension period, respectively. The
Company will have certain other rights if the Option is not exercised
or if Pivot receives additional funding.
F-18
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused
this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
Dated: June 19, 1998
MICROS-TO-MAINFRAMES, INC.
By: /s/ Steven H. Rothman
Steven H. Rothman
CEO and President
Pursuant to the requirements of the Securities Exchange Act
of 1934, this Report has been signed below by the following
persons on behalf of the Registrant and in the capacities and on
the dates indicated.
/s/ Howard Pavony Chairman of the Board June 19,1998
- ----------------
Howard Pavony
/s/ Steven H. Rothman President, June 19,1998
- --------------------
Steven H. Rothman Principal Executive
Officer and Director
/s/ Frank Wong Vice President-Finance June 19,1998
- ---------------------
Frank Wong (Principal Financial and
Accounting Officer)
/s/ Ramon Mota Vice President-Technology June 19, 1998
- ---------------------
Ramon Mota
/s/ William Lerner Director June 19, 1998
- -----------------------
William Lerner
/s/ Arnold J. Wasserman Director June 19, 1998
- ------------------------
Arnold J. Wasserman
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
10.18 Lease Agreement between 270 Madison Limited
Partnership as landlord and the Company as tenant
for space located at 270 Madison Avenue.
27.1 Financial Data Schedule.
<PAGE>
Exhibit 10.18
AGREEMENT OF LEASE
between
270 MADISON LIMITED PARTNERSHIP,
L a n d l o r d,
and
MICROS-TO-MAINFRAMES, INC.
T e n a n t
Dated as of June 17, 1998
PREMISES
Portion of the 15th Floor
270 Madison Avenue
New York, New York 10016
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 PREMISES; RENT - 3 -
ARTICLE 2 CONDITION OF PREMISES - 5 -
ARTICLE 3 OPERATING EXPENSE ESCALATION INDEX. - 5 -
ARTICLE 4 REAL ESTATE TAX ESCALATION - 9 -
ARTICLE 5 USE - 11 -
ARTICLE 6 ALTERATIONS AND INSTALLATIONS - 12 -
ARTICLE 7 REPAIRS - 15 -
ARTICLE 8 REQUIREMENTS OF LAW - 17 -
ARTICLE 9 INSURANCE, LOSS, REIMBURSEMENT, LIABILITY - 18 -
ARTICLE 10 DAMAGE BY FIRE OR OTHER CAUSE - 20 -
ARTICLE 11 ASSIGNMENT, MORTGAGING, SUBLETTING, ETC. - 22 -
ARTICLE 12 ELECTRICITY - 27 -
ARTICLE 13 ADJACENT EXCAVATION -- SHORING - 31 -
ARTICLE 14 CONDEMNATION - 31 -
ARTICLE 15 ACCESS TO PREMISES; CHANGES - 33 -
ARTICLE 16 CONDITIONS OF LIMITATION - 34 -
ARTICLE 17 RE-ENTRY BY LANDLORD; INJUNCTION - 35 -
ARTICLE 18 DAMAGES - 36 -
ARTICLE 19 LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS - 37 -
ARTICLE 20 QUIET ENJOYMENT - 38 -
ARTICLE 21 SERVICES AND EQUIPMENT - 38 -
ARTICLE 22 HAZARDOUS MATERIALS - 40 -
ARTICLE 23 INVALIDITY OF ANY PROVISION - 41 -
ARTICLE 24 BROKERAGE - 42 -
ARTICLE 25 SUBORDINATION - 42 -
ARTICLE 26 CERTIFICATE OF TENANT AND LANDLORD - 43 -
ARTICLE 27 LEGAL PROCEEDINGS; WAIVER OF JURY TRIAL;
ATTORNEYS' FEES - 44 -
ARTICLE 28 SURRENDER OF PREMISES - 45 -
ARTICLE 29 RULES AND REGULATIONS - 45 -
ARTICLE 30 CONSENTS AND APPROVALS - 46 -
ARTICLE 31 NOTICES - 46 -
ARTICLE 32 NO WAIVER - 46 -
ARTICLE 33 INABILITY TO PERFORM - 47 -
ARTICLE 34 ENTIRE AGREEMENT; NO REPRESENTATIONS;
NO ORAL MODIFICATION - 47 -
ARTICLE 35 SECURITY - 47 -
ARTICLE 36 CHANGE OF LOCATION - 48 -
ARTICLE 37 NON-LIABILITY AND INDEMNIFICATION - 49 -
ARTICLE 38 FAILURE TO GIVE POSSESSION - 50 -
ARTICLE 39 ADDITIONAL SPACE; RENEWAL OPTION - 50 -
ARTICLE 40 MISCELLANEOUS - 51 -
<PAGE>
SCHEDULES
A - Floor Plan
B - Cleaning Specifications
C - Form of Estoppel Letter
D - Rules and Regulations
EXHIBITS
A - Landlord's Work
<PAGE>
AGREEMENT OF LEASE dated as of June 17, 1998, by and between
270 MADISON LIMITED PARTNERSHIP, a Connecticut limited
partnership, with its office at c/o ORIX Real Estate Equities,
Inc., 270 Madison Avenue, New York, New York 10016 (hereinafter
referred to as "Landlord") and MICROS-TO-MAINFRAMES, INC., a New
York corporation with its office at 405 Lexington Avenue, New
York, New York 10016 (hereinafter referred to as "Tenant").
REFERENCE PAGE
Lease Definitions
In addition to other terms elsewhere defined in this Lease,
the following words and phrases whenever used in this Lease shall
have the meanings set forth in this Reference Page.
"Alteration" means any and every alteration, addition,
construction, improvement, installation or modification of or to
the Premises and/or any and every installation in the Premises
(including, without limitation, all fixtures, panelling,
partitions, railings, wall coverings, and all electrical,
mechanical, plumbing, heating, ventilating and air conditioning
installations affixed or attached to the Premises).
"Base Tax Year" shall mean the Taxes (as hereinafter
defined) for the twelve month period commencing July 1, 1998 and
ending June 30, 1999.
"Broker" shall mean collectively, Newmark & Company Real
Estate, Inc. and LaSalle Partners.
"Building" shall mean the building known as 270 Madison
Avenue, New York, New York 10016.
"Business Days" as used in this Lease shall exclude
Saturdays, Sundays and all days observed by the federal, state or
local government as legal holidays as well as all other days
recognized as holidays under applicable union contracts.
"Business Hours" as used in this Lease shall mean the hours
between 8:00 a.m. and 6:00 p.m. on Business Days.
"Commencement Date" shall mean the earlier to occur of (A)
the date when Tenant, any employee of Tenant, or any Person
holding by, through, or under Tenant, first occupies the Main
Premises and the Supplemental Premises (as hereinafter defined)
for the conduct of business; or (B) three (3) days after notice
from Landlord to Tenant that the Landlord's Work (as hereinafter
<PAGE>
defined) is Substantially Complete (other than any work which
cannot be completed on such date provided that the failure to
complete such work will not substantially interfere with Tenant's
use of the Premises to conduct its business); provided, however,
that if Landlord shall be delayed in Substantial Completion of
the Landlord's Work as a result of (1) Tenant's failure to agree
to plans and specifications before the date required under this
Lease, (2) Tenant's request for materials, finishes or
installations other than standard materials, (3) any Tenant
changes in plans, or (4) the performance or completion by a
Person employed by or on behalf of Tenant; then the Commencement
Date and the payment of Rent hereunder shall be accelerated by
the number of days of such delay. The Commencement Date for the
Main Premises and the Supplemental Premises may be different
dates, depending on when such portions of the Premises are
delivered to Tenant.
"Construction Rules and Regulations" shall mean those
certain rules and regulations as issued by the Landlord with
respect to the performance of any construction at the Premises.
"Expiration Date" shall mean the last day of the third (3rd)
month after the month in which the fifth (5th) anniversary of the
Commencement Date occurs. For the purposes of the definition of
the "Expiration Date", the term "Commencement Date" shall mean
the Commencement Date in respect of the Main Premises so that the
Expiration Date for both the Main Premises and the Supplemental
Premises are the same.
"Fixed Annual Rent" shall mean Two Hundred Sixty-Nine
Thousand Eight Hundred Fifty-Six Dollars ($269,856.00) per annum
for the period from the Commencement Date through the day
immediately preceding the third (3rd) anniversary of the
Commencement Date and Two Hundred Seventy-Eight Thousand Two
Hundred Eighty-Nine Dollars ($278,289.00) per annum for the
period from the third (3rd) anniversary of the Commencement Date
through the expiration of the Term (also referred to herein as
the "fixed annual rent" or the "Fixed Rent").
"Interest Rate" shall mean a fluctuating rate of interest
per annum equal to the lesser of (a) 2% above the prime
commercial lending rate of interest announced from time to time
by The Chase Manhattan Bank, National Association (or any
successor institution, or, if said bank and its successors are no
longer in existence, any other commercial bank in the City of New
York selected by Landlord), at its principal office in New York
City, in effect from time to time or (b) the maximum applicable
legal rate of interest, if any.
<PAGE>
"Landlord" means only the owner, or the mortgagee in
possession, of the Land (as hereinafter defined) and Building (or
the owner of a lease of the Building or of the Land and
Building), so that in the event of any transfer of title to said
Land and Building or said lease, or in the event of a lease of
the Building, or of the Land and Building, upon notification to
Tenant of such transfer or lease the said transferor Landlord
shall be and hereby is entirely freed and relieved of all
existing or future covenants, obligations and liabilities of
Landlord hereunder. It shall be deemed and construed as a
covenant running with the land without further agreement between
the parties or their successors in interest, or between the
parties and the transferee of title to said Land and Building or
said lease, or the said lessee of the Building, or of the Land
and Building, that the transferee or the lessee has assumed and
agreed to carry out any and all such covenants, obligations and
liabilities of Landlord hereunder from and after the date of such
transfer.
"Legal Requirement(s)" shall mean (i) any laws, statutes and
ordinances (including building codes and zoning regulations and
ordinances and the Americans with Disabilities Act of 1990) and
the orders, rules, regulations, directives and requirements of
all federal, state, county, city, municipal and borough
departments, bureaus, boards (including the New York Board of
Fire Underwriters), agencies, offices, commissions and other
subdivisions thereof, or of any official thereof, or of any other
governmental public or quasi-public authority, whether now or
hereafter in force, which may be applicable to the Land or
Building or the Premises or any part thereof, or the sidewalks,
curbs or areas adjacent thereto, (ii) all requirements,
obligations and conditions of all instruments of record on the
date of this Lease, and (iii) all requirements, obligations and
conditions imposed by the carrier of Landlord's insurance policy
for the Building related to Tenant's occupancy.
"Lien" means any and every lien of any kind whatsoever for
the furnishing (or alleged furnishing) of (or on account of)
labor, materials, services, facilities, or any other things
whatsoever.
"Monthly Installment of Fixed Annual Rent" shall mean Twenty-
Two Thousand Four Hundred Eighty-Eight Dollars ($22,488.00) per
month for the period from the Commencement Date through the day
immediately preceding the third (3rd) anniversary of the
Commencement Date and Twenty-Three Thousand One Hundred Ninety
Dollars and Seventy-Five Cents ($23,190.75) per month for the
period from the third (3rd) anniversary of the Commencement Date
through the expiration of the Term.
"Person" means an individual person, corporation,
partnership, trust, joint venture, proprietorship, estate or
other incorporated or unincorporated enterprise, entity, or
organization of any kind whatsoever.
<PAGE>
"Premises" shall mean a portion of the fifteenth (15th)
floor of the Building as approximately shown hatched on the floor
plan annexed hereto as Schedule A (which space is hereinafter
referred to as the "Premises"). In addition, the terms "Main
Premises" and "Supplemental Premises" shall mean that portion of
the Premises identified as the "Main Premises" and the
"Supplemental Premises" on Schedule "A".
"Permitted Use" shall mean executive and general offices and
document production and/or computer data center operations (to
the extent such uses are permitted by the certificate of
occupancy for the Premises) for no other purposes whatsoever.
"Security Deposit" shall have the meaning set forth in
Article 35 this Lease.
"Substantial Completion" or "Substantially Complete" means
that the work in question is complete, except for (a) minor or
insubstantial details of construction, decoration, or mechanical
adjustment; and/or (b) portions of the work which cannot be
completed until after completion of work to be performed by or on
behalf of Tenant.
"Tenant's Proportionate Share" shall mean 3.50%.
"Term" shall mean approximately five (5) years and three (3)
months (the "Term").
The Reference Page information is incorporated into and made a
part of this within Lease. In the event of any conflict between
any Reference Page information and the Lease, the Lease shall
control.
W I T N E S S E T H:
The parties hereto, for themselves, their heirs,
distributees, executors, administrators, legal representatives,
trustees, successors and assigns, hereby covenant as follows:
ARTICLE 1 PREMISES; RENT
1.1. Landlord hereby leases to Tenant, and Tenant
hereby hires from Landlord, the Premises for the Term to commence
on the Commencement Date and to end at 11:59 p.m. on the
Expiration Date or until such term shall sooner cease and
terminate as hereinafter provided.
<PAGE>
1.2. (a) From and after the Commencement Date,
Tenant shall pay to Landlord the fixed annual rent (including all
increases to the fixed annual rent pursuant to Article 12), at
the fixed annual rental rate set forth in the Reference Page,
which shall be payable in equal monthly installments in advance
on the first day of each and every calendar month during the Term
of this Lease. The first monthly installment of fixed annual
rent shall be payable by Tenant upon the execution of this Lease.
Should the Commencement Date fall on any day other than the first
day of a month, the fixed annual rent for such month shall be
pro-rated on a per diem basis, and Tenant shall pay the amount
for such partial month on the Commencement Date. Should the
Expiration Date fall on any day other than the last day of a
month, then the Expiration Date shall be deemed modified such
that it is the last day of the calendar month in which the
Expiration Date was scheduled to occur and the fixed annual rent
for such partial period shall be pro-rated on a per diem basis.
In such event the amount paid by Tenant upon execution of this
Lease shall be applied to the fixed annual rent payable on the
first day of the first month following the Commencement Date.
Landlord shall give Tenant written notice specifying when the
Commencement Date has occurred. At either party's request, the
other shall execute a written agreement confirming the
Commencement Date. Tenant's failure to agree in writing shall
not invalidate the Commencement Date.
(b) Any sum other than fixed annual rent payable
hereunder (hereinafter called "additional rent") shall be deemed
additional rent, and together with fixed annual rent shall be
included in the term "rent" and shall, unless otherwise stated,
be due on demand, and shall be payable after the Commencement
Date has occurred. Fixed annual rent and additional rent shall
be paid in lawful money of the United States by good and
sufficient check (subject to collection) drawn to Landlord's
order or as Landlord may direct on a bank which is a member of
the New York Clearinghouse Association or a successor thereto.
Said checks shall be sent to Landlord at its address as
hereinabove set forth, or to such other party or parties and/or
at such other address(es) as Landlord shall designate by notice
to Tenant.
(c) Tenant shall pay the fixed annual rent and
additional rent promptly when due without notice or demand
therefor and without offset, credit, abatement, deduction,
counterclaim or setoff or for any reason whatsoever, except such
deduction as may be expressly set forth in Articles 10 and 14.
<PAGE>
1.3. If Tenant shall fail to pay any installment of fixed
annual rent or any payment of additional rent for a period of
twelve (12) days after such installment or payment shall have
become due, Tenant shall pay interest thereon at the Interest
Rate, from the date when such installment or payment shall have
become due to the date of the payment thereof, and such interest
shall be deemed additional rent.
1.4. If any of the fixed annual rent or additional rent
payable under the terms and provisions of this Lease shall be or
become uncollectible, reduced or required to be refunded because
of any Legal Requirements, Tenant shall enter into such
agreement(s) and take such other steps as Landlord may request
and as legally may be permissible to permit Landlord to collect
the maximum rents that, from time to time during the continuance
of such legal rent restriction, legally may be permissible
(however, not in excess of the amounts reserved therefor under
this Lease). Upon the termination of such legal rent
restriction, (a) the rents shall become and thereafter shall be
payable in accordance with the amounts reserved herein for the
periods following such termination and (b) Tenant shall pay to
Landlord, to the maximum extent legally permissible, an amount
equal to (i) the rents that would have been paid pursuant to this
Lease but for such legal rent restriction less (ii) the rents
paid by Tenant during the period such legal rent restriction was
in effect.
1.5. No payment by Tenant or receipt or acceptance by
Landlord of a lesser amount than the correct fixed annual rent or
additional rent shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment be deemed 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 remedy provided in this Lease or at law.
1.6. In order to compensate Landlord for the expenses
involved in handling delinquent payments, Tenant shall pay, as
additional rent, a late charge of three (3%) percent of the
amount of any installment of fixed annual rent or payment of
additional rent remaining unpaid on the ninth (9th) day after the
due date for such installment or payment, whether or not Landlord
has given notice of default to Tenant and whether or not a
default has occurred. Nothing herein contained shall excuse
Tenant from paying all rent or any other sum due under this Lease
on the dates when same are due hereunder.
<PAGE>
1.7. Landlord shall have the same rights and remedies
(including, without limitation, the right to commence a summary
proceeding) for a default in the payment of additional rent for a
default in the payment of fixed annual rent notwithstanding the
fact that Tenant may not then also be in default in the payment
of fixed annual rent.
1.8. Notwithstanding anything contained herein to the
contrary, provided Tenant shall not then be in default of its
obligations under this Lease beyond any applicable grace, notice
and cure period, Tenant shall be entitled to an abatement in an
amount equal to Twenty-Two Thousand Four Hundred Eighty-Eight
Dollars ($22,488.00) for a period of four (4) months commencing
on the Commencement Date and an abatement in an amount equal to
One Thousand Five Hundred Fifty-Seven Dollars and Thirty-Three
Cents ($1,957.33) for the fifth (5th) and the sixth (6th) months
after the Commencement Date (collectively, the "Abatement
Period"). The entire fixed annual rent otherwise due and payable
for the Abatement Period shall become immediately due and payable
upon the occurrence of a default by Tenant under this Lease
beyond the expiration of any applicable grace, notice and cure
periods prior to the last day of the sixth (6th) month after the
Commencement Date. Under no circumstances whatsoever shall any
amount payable by Tenant with respect to electricity be subject
to an abatement.
ARTICLE 2 CONDITION OF PREMISES
2.1. Tenant has inspected the Premises, is fully familiar
with the condition thereof and shall take possession of the
Premises in its current "as is" condition, subject only to the
performance of the Landlord's Work. Landlord shall have no
obligation to alter, improve, decorate or otherwise prepare the
Premises for Tenant's occupancy other than the performance of the
work (the "Landlord's Work") described on Exhibit "A" attached
hereto and by this reference made a part hereof. Landlord shall
perform the Landlord's Work in order to prepare the Premises for
Tenant's initial occupancy of the Premises at Landlord's sole
cost and expense.
2.2 Tenant acknowledges that the Building is not
sprinklered and that the bathrooms in the Premises will be
delivered to Tenant in their current "as-is" condition other than
the performance of the Landlord's Work. A bathroom that complies
with the requirements of the Americans with Disabilities Act (the
"ADA") will be located in the Building for use by Tenant and its
employees. Tenant shall be responsible for complying with all
Legal Requirements (including, without limitation, work required
by or in connection with the ADA) in connection with any
construction in the Premises by or on behalf of Tenant on or
after the Commencement Date, other than the performance of the
Landlord's Work. Landlord shall be responsible for complying
with all Legal Requirements (including, without limitation, work
<PAGE>
required by or in connection with the ADA) in connection with the
Building, other than the Premises.
2.3. Landlord shall not be required to perform, and Tenant
shall not request, any work or installations which would: (a)
require changes to structural components of the Building or the
exterior design of the Building; (b) require any modification to
the Building's Systems or installations outside the Premises; (c)
not comply with all applicable Laws of any Government Entity
having jurisdiction over the construction of the Building and/or
the Premises; and/or (d) be incompatible with plans previously
filed for the Building with the Department of Buildings of the
City of New York or with the occupancy of the Building as a
first-class office building.
2.4. All work performed by Tenant in accordance with the
provisions of this Lease shall require the installation of new
materials at least comparable to the quality installed in the
Building, shall be performed in accordance with the terms and
conditions of this Lease and the Construction Rules and
Regulations.
2.5. Landlord agrees to leave the movable workstations and
any remaining furniture in the Premises for Tenant's use during
the term of this Lease.
ARTICLE 3 OPERATING EXPENSE ESCALATION INDEX.
3.1. For the purposes of this Article 3, the following
definitions shall apply:
(a) The term "Operating Year" shall mean: (i) the
period of twelve (12) months commencing January 1 and (ii) each
successive period of twelve (12) months, and (iii) the period of
twelve (12) months or less commencing with January 1st
immediately preceding the Expiration Date and ending on the
Expiration Date. If the term of this Lease terminates or expires
on a date other than December 31st, the additional rent,
including the base for computing such rent, for the pertinent
escalation year shall be prorated based upon the number of days
in such Operating Year occurring before the termination or
expiration of the term of this Lease, as applicable.
(b) The term "Base Year" shall mean, with regard to
Operating Expenses, the average of (i) the Operating Expenses for
the twelve (12) month period commencing January 1, 1998 and
ending December 31, 1998 and (ii) the Operating Expenses for the
twelve (12) month period commencing January 1, 1999 and ending
December 31, 1999.
<PAGE>
(c) The term "Landlord's Expenses" shall mean the sum
of the "Operating Expenses" as defined in Section 3.8.
(d) Landlord's "Escalation Statement" shall mean a
statement of Landlord's Expenses prepared by Landlord setting
forth (i) the Operating Expenses for such Operating Year, showing
in detail the amount of each item included in Operating Expenses,
and (ii) a detailed computation of any such additional rental for
such Operating Year.
3.2 Tenant shall pay as additional rent for each Operating
Year, Tenant's Proportionate Share of the excess, if any, in the
Landlord's Expenses for said Operating Year over Landlord's
Expenses for the Base Year. Such additional rental shall be
payable by Tenant to Landlord as follows:
(a) The additional rent for Operating Expenses for the
first Operating Year shall be payable on the first day of each
month commencing on and as of the first (1st) anniversary of the
Commencement Date in a monthly installment equal to 1/12th of the
additional rent hereunder for Tenant's Proportionate Share of
Landlord's Expenses reasonably estimated by Landlord to be
payable by Tenant to Landlord for the first Operating Year. If
the actual amount of additional rent paid by Tenant for the first
Operating Year is ultimately determined to be less than or in
excess of the actual amount therefor due from Tenant hereunder,
then within 30 days after the date on which Landlord delivers its
Escalation Statement for the respective Operating Year Tenant
shall pay to Landlord the amount of such shortfall, if any, or
Landlord shall credit such excess, if any, to future payments
required to be paid by Tenant under this Lease or Landlord shall
pay Tenant a refund check in the event no future payments are due
Landlord.
(b) Commencing with the second Operating Year, the
additional rent for Landlord's Expenses shall be payable on the
first day of each month during each Operating Year in an amount
equal to 1/12th of the additional rent hereunder for Tenant's
Proportionate Share of Landlord's Expenses reasonably estimated
by Landlord to be payable by Tenant to Landlord for the current
Operating Year. Such estimated payments shall be reconciled to
actual expenses in the same manner as set forth in Section
3.2(a).
(c) Landlord shall deliver its Escalation Statement to
Tenant within 90 days after the end of each Operating Year,
provided, however, Landlord so long as Landlord delivers an
Escalation Statement to Tenant within two (2) years after the end
of the Operating Year (or within six (6) months after the
expiration of this Lease), Landlord shall not lose its right to
<PAGE>
collect the additional rent for Landlord's Expenses for the
respective Operating Year if Landlord fails to submit an
Escalation Statement within the time specified herein.
(d) If, upon the expiration of the term of the Lease,
any credit to which Tenant might be entitled pursuant to this
Section shall not then have been used as a credit, then,
subsequent to Tenant properly vacating the Premises and provided
that Tenant is not in default hereunder beyond any applicable
grace, notice or cure period, Landlord shall remit to Tenant the
amount of any such remaining credit within sixty (60) days after
the expiration of this Lease. Tenant's obligation hereunder to
pay additional rent for any Operating Year shall survive the
expiration or termination of the term of this Lease, provided
that Landlord shall send a final Escalation Statement to Tenant
within six (6) months of such expiration or termination date. In
the event that the additional rent to be paid by Tenant under
this Article for the final Operating Year has not been determined
upon the last day of the Lease term, Tenant covenants to pay to
Landlord the additional rent required to be paid pursuant to this
Section for the final Operating Year upon a determination being
made by Landlord of the actual amount of additional rent required
to be paid by Tenant pursuant to this Section. Notwithstanding
anything to the contrary contained herein, Tenant's obligation to
pay additional rent shall not extend to that period of the
Operating Year after termination or expiration of this Lease.
3.3. In the event that the Commencement Date shall be other
than the first day of an Operating Year or the date of the
expiration or other termination of this Lease shall be a day
other than the last day of an Operating Year, then, in applying
the provisions of this Article 3 with respect to any Operating
Year in which such event shall have occurred, appropriate
adjustments shall be made to reflect the occurrence of such event
on the basis of the portion of such Operating Year that shall
have elapsed after the Term hereof commences in the case of the
Commencement Date, and prior to the date of such expiration or
termination in the case of the Expiration Date or other
termination.
3.4. Payments shall be made pursuant to this Article 3
notwithstanding the fact that an Escalation Statement is
furnished to Tenant after the expiration of the Term of this
Lease so long as such Escalation Statement is furnished to Tenant
within six (6) months after the expiration of this Lease.
<PAGE>
3.5. In no event shall the fixed annual rent be reduced by
operation of this Article 3. The rights and obligations of
Landlord and Tenant under the provisions of this Article 3 with
respect to any additional rent shall survive the expiration or
other termination of this Lease.
3.6. Landlord's failure to render an Escalation Statement
with respect to any Operating Year shall not prejudice Landlord's
right thereafter to render an Escalation Statement with respect
thereto or with respect to any subsequent Operating Year so long
as such Escalation Statement is furnished to Tenant within two
(2) years after the expiration of the Operating Year in question
(or within six (6) months after the expiration of this Lease).
3.7. Each Escalation Statement shall be conclusive and
binding upon Tenant unless within 75 days after receipt of such
Escalation Statement Tenant shall notify Landlord that it
disputes the correctness of such Escalation Statement, specifying
the particular respects in which such Escalation Statement is
claimed to be incorrect. Pending the determination of such
dispute, Tenant shall pay additional rent in accordance with the
Escalation Statement that Tenant is disputing, without prejudice
to Tenant's position.
3.8. (a) The term "Operating Expenses" as used in this
Article 3 shall mean any and all operating costs actually
incurred by Landlord for a given Base Year or Operating Year to
the extent properly allocable (in accordance with generally
accepted accounting principles consistently applied) to the
operation, repair and maintenance of the Building and shall
include, without limitation, the following: (1) salaries, wages
and all other expenses incurred for the employment of a building
staff, excluding those staff members above the grade of Building
Manager and/or equally held positions; (2) the cost of materials
and supplies used directly in the operation, repair and
maintenance of the Building, except for the cost of any materials
and supplies which are directly reimbursed by or the obligation
of a tenant of the Building; (3) the cost of normal replacements
for tools and equipment used in the operation, repair and
maintenance of the Building unless reimbursed by or the
obligation of a tenant in the Building to Landlord; (4) amounts
charged to Landlord by independent contractors for services
(including full or part-time labor), materials and supplies
furnished in connection with the operation, repair and
maintenance of any part of the Building, and the heating, air
conditioning, ventilating, plumbing, electrical and elevator
systems of the Building; (5) amounts paid by Landlord, or charged
to Landlord by independent contractors, for window cleaning and
janitorial, rubbish removal and porter services; (6) water
charges and sewer rents; (7) the cost of repainting or otherwise
redecorating any part of the Building, excluding therefrom,
however, any such costs related to the retail/commercial space
located on the ground floor of the Building or any other costs
<PAGE>
reimbursed by or the obligation of a tenant to Landlord; (8) the
cost of telephone service, postage, office supplies, maintenance
and repair of office equipment and similar charges related to
operation of the building manager's office; (9) the cost of
licenses, permits and similar fees and charges related to the
operation, repair and maintenance of the Building; (10) premiums
for insurance obtained by Landlord; (11) fees for the management
of the Building, not exceeding those fees customarily charged for
comparable buildings and excluding any leasing commissions or
compensations; (12) charges (including applicable taxes) for
electricity, steam and other utilities required in the operation
of common areas of the Building for which tenants are not charged
back directly for use; (13) lease payments for rented equipment
used by Landlord to provide services which would otherwise be
provided by an independent contractor and the cost of which
services would be an item included as an Operating Expense;
provided that in no event shall the annual cost of such lease
payments and direct services included in Operating Expenses
exceed, in the aggregate, the cost that would have been charged
by an independent contractor for such services; and (14) If any
capital improvement is made or any item of capital equipment is
leased during any Operating Year either (i) in compliance with a
Legal Requirement, whether or not such Legal Requirement is valid
or mandatory, or a requirement of any applicable insurance
policies, or (ii) for the principal good faith purpose of
reducing Operating Expenses (as, for example, a labor saving
improvement), then the cost of such improvement only to the
extent of savings realized, (or rental thereof), shall be
included in Operating Expenses for the Operating Year in which
such improvement was made (or such rental payment obligation
incurred); provided however, to the extent the cost of such
improvement is required to be capitalized for federal income tax
purposes, such cost shall be amortized over the shortest useful
life of such improvement permitted pursuant to Generally Accepted
Accounting Principles, ("GAAP"), and the annual amortization
thereof, shall be deemed an Operating Expense in each of the
Operating Years during which such cost of the improvement is
amortized.
<PAGE>
(b) The following items shall be excluded from
Operating Expenses: (1) the cost of any work or service performed
for any tenant (including Tenant) at such tenant's cost; (2) the
cost of installing, operating and maintaining any specialty
service, such as an observatory, broadcasting facilities,
athletic or recreational club; (3) salaries of officers and
executives of Landlord; (4) the cost of any items for which
Landlord is reimbursed by insurance; (5) the costs (including
increased expenses) related to any additions to the Building; (6)
interest on debt or amortization payments on any mortgage and
rental under any ground lease or other underlying lease; (7) any
real estate brokerage commissions or other cost incurred in
procuring tenants; (8) charges (including applicable taxes) for
electricity, steam and other utilities for which Landlord
receives reimbursement from any tenant; (9) costs of selling,
syndicating, financing, mortgaging, or hypothecating any of
Landlord's interest in the Building or the Land/Property or any
improvements located thereon; (10) any expense for repairs or
maintenance for which Landlord is reimbursed by warranties and
service contracts; (11) expenses resulting from the gross
negligence or willful misconduct of Landlord, its agents or
employees; (12) legal fees (other than as provided in this
Lease); (13) all Taxes as defined in Article 4.1 of this Lease;
(14) depreciation and other non-cash expenses; (15) the cost
incurred by Landlord for any artwork and other decorative type
work; (16) expenses incurred for work to prepare any space in the
Building for occupancy by a tenant; and (17) costs incurred for
extraordinary work and/or special services furnished to a
particular tenant, whether or not such expenses have been
reimbursed by such tenant.
ARTICLE 4 REAL ESTATE TAX ESCALATION
4.1. For the purposes of this Article 4, the following
definitions shall apply:
(a) The term "Base Tax" shall mean the Taxes payable
for the Base Tax Year set forth in the Reference Page. If the
Base Tax subsequently shall be adjusted, corrected or reduced
whether as the result of protest, by means of agreement or as the
result of legal proceedings, the Base Tax for the purpose of
computing any additional rent payable pursuant to this Article
shall be the Base Tax as so adjusted, corrected or reduced.
Until the Base Tax is so adjusted, corrected or reduced, if ever,
Tenant shall pay additional rent hereunder based upon the
unadjusted, uncorrected or unreduced Base Tax and upon such
adjustment, correction or reduction occurring, any additional
rent payable by Tenant prior to the date of such occurrence shall
be recomputed and Tenant shall pay to Landlord any additional
rent found due by such recomputation within twenty (20) days
after being billed therefor (which bill shall set forth in
reasonable detail the pertinent data causing and comprising such
recomputation).
(b) The term "Taxes" shall mean all real estate taxes,
assessments, sewer and water rents, governmental levies,
municipal taxes, county taxes, utility taxes or any other
governmental charge, general or special, ordinary or
extraordinary, unforeseen as well as foreseen, of any kind or
nature whatsoever, that are or may be assessed, levied or imposed
upon all or any part of the land (hereinafter referred to as the
<PAGE>
"Land") on which the Building is situated, the Building and the
sidewalks, vault, arcades, plazas, alleys or streets in front of
or adjacent thereto, including any tax, excise or fee payable as
a result of the Building being situated in a business improvement
district, including any tax, excise or fee measured by or payable
with respect to any rent or mortgage and levied against Landlord
and/or the Land and/or the Building, and/or against the holder of
any mortgage affecting the Land or the Building, under the laws
of the United States, the State of New York, or any political
subdivision thereof, or by the City of New York, or any political
subdivision thereof (but excluding any income, franchise,
corporate, estate, inheritance, succession, capital stock,
transfer or mortgage recording tax levied on Landlord or the
holder of any such mortgage). If, due to a future change in the
method of taxation or in the taxing authority, a new or
additional real estate tax, or a franchise, income, transit,
profit or other tax or governmental imposition, however
designated, shall be levied against Landlord, and/or the Land
and/or the Building, and/or the sidewalks, arcades,
plazas,--alleys or streets in front of or adjacent thereto, in
addition to, or in substitution in whole or in part for any tax
which would constitute "Taxes", or in lieu of additional Taxes,
such tax or imposition shall be deemed for the purposes hereof to
be included within the term "Taxes".
(c) The term "Tax Year" shall mean each period of
twelve months, commencing on the first day of July of each such
period, in which occurs any part of the Term of this Lease or
such other period of twelve months occurring during the Term of
this Lease as hereafter may be duly adopted as the fiscal year
for real estate tax purposes of the City of New York.
(d) The term "Escalation Statement" shall mean a
statement setting forth the amount payable by Tenant for a
specified Tax Year pursuant to this Article 4.
4.2. (a) Tenant shall pay as additional rent for each
Tax Year a sum (hereinafter referred to as "Tenant's Tax
Payment") equal to Tenant's Proportionate Share of the amount by
which the Taxes for such Tax Year exceed the Base Tax. Tenant's
Tax Payment for each Tax Year shall be due and payable in advance
in semi-annual installments on the first day of each December and
June during each Tax Year, based upon the Escalation Statement
furnished prior to the commencement of such Tax Year, until such
time as a new Escalation Statement for a subsequent Tax Year
shall become effective. If an Escalation Statement is furnished
to Tenant after the commencement of the Tax Year in respect of
which such Escalation Statement is rendered, Tenant shall, within
<PAGE>
twenty (20) days thereafter, pay to Landlord an amount equal to
the amount of any underpayment of Tenant's Tax Payment with
respect to such Tax Year and, in the event of an overpayment,
Landlord shall permit Tenant to credit against subsequent
payments under this Section 4.2 the amount of Tenant's
overpayment. If there shall be any increase in Taxes for any Tax
Year, whether during or after such Tax Year, Landlord shall
furnish a revised Escalation Statement for such Tax Year, and
Tenant's Tax Payment for such Tax Year shall be adjusted and paid
substantially in the same manner as provided in the preceding
sentence. If during the Term of this Lease, Taxes are required
to be paid (either to the appropriate taxing authorities or as
tax escrow payments to a superior mortgagee) in full or in
monthly, quarterly, semiannually or other installments, on any
other date or dates than as presently required, then Landlord
shall provide Tenant with reasonable supporting documentation
regarding such requirement, and at Landlord's option, Tenant's
Tax Payments shall be correspondingly accelerated or revised so
that said Tenant's Tax Payments are due at least 30 days prior to
the date payments are due to the taxing authorities or the
superior mortgagee. The benefit of any discount for any early
payment or prepayment of Taxes shall accrue solely to the benefit
of Landlord and such discount shall not be subtracted from Taxes.
Landlord shall provide Tenant with a copy of the tax invoices
which the Tenant's Tax Payment is based upon.
(b) If the real estate tax fiscal year of The City of
New York shall be changed during the Term of this Lease, any
Taxes for such fiscal year, a part of which is included within a
particular Tax Year and a part of which is not so included, shall
be apportioned on the basis of the number of days in such fiscal
year included in the particular Tax Year for the purpose of
making the computations under this Section 4.2.
(c) If the Taxes for any Tax Year for which Tenant
shall have paid additional rent pursuant to this Article shall be
adjusted, corrected or reduced whether as the result of protest
of any tentative/final assessment, or by means of agreement, or
as the result of legal proceedings, the additional rent, if any,
becoming due in said Tax Year pursuant to this Article shall be
determined on the basis of said corrected, adjusted or reduced
Taxes. If Tenant shall have paid any additional rent pursuant to
this Article for such Tax Year prior to any said adjustment,
Landlord shall credit or refund to Tenant any excess amount thus
paid as reflected by said adjusted Taxes, less Tenant's
Proportionate Share of any cost, expense or fees (including
experts' and attorneys' fees and Landlord's costs of
administration and coordination) incurred by Landlord in
obtaining said tax adjustment to the extent such expense, fees
<PAGE>
and costs are not otherwise payable by Tenant as a portion of
Operating Expenses. If said tax adjustment shall occur prior to
Tenant's payment of any said Taxes due hereunder as additional
rent, Tenant shall pay, as additional rent, Tenant's
Proportionate Share of any cost, expenses or fees (including
experts' and attorneys' fees and Landlord's costs of
administration and coordination) incurred by Landlord in
obtaining said tax adjustment to the extent such expenses, fees
and costs are not otherwise payable by Tenant as a portion of
Operating Expenses.
4.3. (a) Tenant shall pay to Landlord within
twenty (20) days after demand accompanied by reasonable
supporting documentation, as additional rent, any occupancy tax,
rent tax, sales tax (including sales tax on any services provided
by or on behalf of Landlord) and any other tax of similar nature
or intent now in effect or hereafter enacted, in connection with
the Premises if payable by Landlord in the first instance or
hereafter required to be paid by Landlord.
(b) Tenant shall pay when due any and all taxes levied
or assessed against Tenant which become payable during the Term
of this Lease on Tenant's equipment, furniture, fixtures and
other personal property of Tenant in the Premises.
4.4. In the event that the date of the expiration or
other termination of this Lease shall be a day other than the
last day of a Tax Year, then, in applying the provisions of this
Article 4 with respect to any Tax Year in which such event shall
have occurred, appropriate adjustments shall be made to reflect
the occurrence of such event on the basis of the portion of such
Tax Year that shall have elapsed prior to the date of such
expiration or termination in the case of the Expiration Date or
other termination, so long as such statement is furnished to
Tenant within two (2) years after the expiration of the Tax Year
in question or within six (6) months after the expiration of the
term of this Lease.
4.5. In no event shall the fixed annual rent be reduced
by operation of this Article 4. The rights and obligations of
Landlord and Tenant under the provisions of this Article 4 with
respect to any additional rent shall survive the expiration or
other termination of this Lease.
4.6. Subject to Section 4.4, Landlord's failure to
render an Escalation Statement with respect to any Tax Year shall
not prejudice Landlord's right thereafter to render an Escalation
Statement with respect thereto or with respect to any subsequent
Tax Year. Payments shall be made pursuant to this Article 4
notwithstanding the fact that an Escalation Statement is
furnished to Tenant after the expiration of the Term of this
Lease.
<PAGE>
4.7. Each Escalation Statement shall be conclusive and
binding upon Tenant unless within 60 days after receipt of such
Escalation Statement Tenant shall notify Landlord that it
disputes the correctness of such Escalation Statement, specifying
the particular respects in which such Escalation Statement is
claimed to be incorrect. Pending the determination of such
dispute, Tenant shall pay additional rent in accordance with the
Escalation Statement that Tenant is disputing, without prejudice
to Tenant's position.
ARTICLE 5 USE
5.1. The Premises shall be used by Tenant solely as and
for executive and general offices for the Permitted Use as set
forth in the Reference Page and for no other purpose whatsoever.
5.2. Tenant shall not use or permit the use of the
Premises or any part thereof in any way that would violate any of
the covenants, agreements, terms, provisions and conditions of
this Lease or for any unlawful purposes or in any unlawful manner
or in violation of the certificate of occupancy for the Premises
or the Building (the "Certificate of Occupancy"), or any ground
or underlying leases which may hereafter affect the Building or
the Premises. Tenant shall not suffer or permit the Premises or
any part thereof to be used in any manner or anything to be done
therein or anything to be brought into or kept therein that, in
the reasonable judgment of Landlord, shall in any way impair or
interfere with or tend to impair or interfere with (a) the
character, reputation or appearance of the Building as a high
quality office building, (b) any of the Building services, (c)
the use of any of the other areas of the Building by, or
reasonably occasion discomfort, inconvenience or annoyance to,
any of the other tenants or occupants of the Building, or (d)
increase or tend to increase Landlord's costs of operating the
Building. Tenant shall not install any electrical or other
equipment of any kind that, in the reasonable judgment of
Landlord, might cause any such impairment, interference,
discomfort, inconvenience or annoyance.
5.3. If any governmental license or permit (other than
a Certificate of Occupancy for the Building or any other license
or permit required of all tenants occupying space for executive
and general office use in the Borough of Manhattan) shall be
required for the proper and lawful conduct of Tenant's business
in the Premises or any part thereof or for Tenant's occupancy of
the Premises, Tenant at its expense shall procure and maintain
and comply with the terms and conditions of such license or
permit and submit the same to Landlord for inspection.
<PAGE>
5.4. Tenant acknowledges and agrees that the value of the
Premises and the reputation of the Landlord will be seriously
injured if the Premises are used for any obscene or pornographic
purposes or any sort of commercial sex establishment. Tenant
agrees that it will not bring or permit any obscene or
pornographic material on the Premises, and shall not permit or
conduct any obscene, nude, or semi-nude live performances on the
Premises, nor permit use of the Premises for nude modeling, rap
sessions, or as a so-called rubber goods shop, or as a sex club
of any sort, or as a "massage parlor." Tenant agrees further
that it will not permit any of these uses by any sublessee or
assignee of the Premises. This Section 5.4 shall directly bind
any successors in interest to the Tenant. Tenant agrees that if
at any time it violates any of the provisions of this Section
5.4, such violation shall be deemed a breach of a substantial
obligation of the terms of this Lease and objectionable conduct.
Pornographic material is defined for purposes of this Section 5.4
as any written or pictorial matter with prurient appeal or any
objects or instrument that are primarily concerned with lewd or
prurient sexual activity. For the purposes of this Section 5.4
the term "obscene material" shall have the meaning as set forth
in New York State Penal Law Section 235.00.
ARTICLE 6 ALTERATIONS AND INSTALLATIONS
6.1. (a) Tenant shall make no Alterations in or to the
Premises without Landlord's prior written consent (including,
without limitation, any work in connection with the Tenant's
initial occupancy of the Premises). Any approved Alteration
shall be performed only by contractors or mechanics first
reasonably approved by Landlord, provided, however, that any
Alteration in or to the mechanical, electrical, sanitary,
heating, ventilating, air-conditioning or other systems of the
Building (including, without limitation, the fire-safety system)
shall be performed only by contractor(s) designated by Landlord.
Every Alteration shall be done at Tenant's sole cost and expense
and at such times and in such manner as Landlord may from time to
time reasonably designate. Landlord may impose such reasonable
conditions (in addition to those expressly provided in this
Lease) as to restoration or otherwise as Landlord may consider
desirable.
(b) Notwithstanding anything contained in Article 6 of
this Lease to the contrary, provided Tenant is not in default
hereunder beyond applicable grace and notice periods, Tenant at
its sole cost and expense and without the consent of Landlord may
perform non-structural alterations to the Premises including,
without limitation, painting, wallpapering, carpeting, and the
installation of racks and shelving and low voltage cabling as
Tenant may consider necessary or desirable for the conduct of its
business at the Premises provided Tenant (i) notifies Landlord in
writing before commencing such alteration, (ii) delivers plans
and specifications for the work involved (or a reasonably
detailed description of such work in form and substance
reasonably acceptable to Landlord), (iii) complies with all Laws
and obtains any required permits applicable thereto, (iv) such
alterations do not affect any structural portion of the Building
or any Building systems and (v) such alteration does not require
Tenant to spend more than Fifty Thousand Dollars ($50,000.00) in
the aggregate in any twelve (12) month period.
<PAGE>
6.2. Every Alteration in or to the Premises shall be
performed in accordance with the provisions of this Lease and
shall be effected solely in accordance with plans and
specifications first approved in writing by Landlord, which
approval shall not be unreasonably withheld or delayed. Such
plans and specifications shall be prepared at Tenant's sole cost
and expense by a professional registered architect and shall be
complete, finished detailed architectural drawings and
specifications for the Alteration. Landlord will not
unreasonably withhold or delay its consent to requests for
Alterations provided they will not affect the outside of the
Building or adversely affect its structure, electrical, HVAC,
plumbing, sanitary, fire-safety or mechanical systems or not be
in keeping with the character of the Building, and Landlord shall
respond to such request by Tenant reasonably promptly.
6.3 With respect to every Alteration:
(a) All work shall be done in a good and workmanlike
manner and shall not interfere with the operation of the Building
or impose any additional expense upon Landlord in the
construction, maintenance, repair or operation of the Building.
If any additional expense shall be incurred by Landlord thereby,
Tenant shall pay such additional expense within twenty (20) days
after demand.
(b) Tenant will inform Landlord in writing of the
names of any contractor or subcontractor Tenant proposes to use
in the Premises at least ten days prior to the beginning of work
by such contractor or subcontractor. Tenant shall employ only
contractors reasonably approved by Landlord in writing; and any
contractor employed by Tenant (and all subcontractors) shall
agree to employ only such labor as will not result in
jurisdictional disputes or strikes or cause disharmony with other
workers employed at the Building. Upon the happening of any such
dispute, strike or disharmony, Tenant shall immediately upon
notice from Landlord discontinue the labor giving rise thereto.
In the event Tenant fails to do so, Landlord, in addition to any
rights available to it under this Lease and pursuant to Law,
shall have the right to an injunction with or without notice.
(c) Within 15 days after each payment to its
contractors is due, Tenant shall furnish Landlord with evidence
that such payment has been made together with a waiver of lien by
such contractor in the amount of such payment.
<PAGE>
(d) Tenant shall cause the Alteration to be installed
in compliance with Legal Requirements.
(e) Tenant shall furnish to Landlord copies of all
governmental permits and authorizations that may be required in
connection with any Alteration. All such governmental permits
and authorizations shall be obtained by Tenant at its sole cost
and expense and Tenant shall pay the cost of filing Tenant's
plans and specifications with the appropriate governmental
authorities in such form (building notice, alteration, or other)
as the governmental authorities may direct.
(f) Tenant represents, warrants and covenants that the
Alteration will: (i) be of good quality and free from faults and
defects, latent or otherwise; (ii) be free and clear of Liens;
(iii) conform to the plans and specifications as approved by
Landlord; and (iv) be fit for the intended use and purpose.
(g) Tenant shall keep the Building and the Premises
free and clear of all Liens for any work or material claimed to
have been furnished to Tenant or to the Premises on Tenant's
behalf, and all work to be performed by Tenant shall be done in a
manner that will not unreasonably interfere with or disturb other
tenants or occupants of the Building.
(h) During the progress of the work to be done by
Tenant, said work shall be subject to inspection by
representatives of Landlord who shall be permitted access and the
opportunity to inspect, at all reasonable times, but this
provision shall not in any way whatsoever create any obligation
on Landlord to conduct any such inspection.
(i) With respect to any Alteration costing more than
$10,000, Tenant agrees to pay to Landlord, as additional rent,
within five calendar days of demand therefor, an amount equal to
(i) Landlord's actual out-of-pocket costs and expenses in
connection with the Alteration in question, and (ii) with respect
to any Alteration costing more than Forty Thousand Dollars
($40,000.00) an amount equal to three percent (3%) of the cost of
such work (including, without limitation, the cost of all permits
and filing fees), for Landlord's indirect expenses, field
supervision and coordination in connection with such work and for
the review of Tenant's plans and specifications.
<PAGE>
(j) Prior to commencement of any work, Tenant shall
furnish to Landlord true copies of certificates of insurance
naming the Landlord and its designated managers and agents as
additional insureds as its interest may appear and evidencing the
existence of:
(i) Workers' compensation insurance covering all
persons employed for such work; and
(ii) Comprehensive general liability
(including contractual liability) and property damage insurance,
with coverage of at least $2,000,000 per occurrence for bodily or
personal injury (including death) and $500,000 in respect of
property damage, or in such higher amounts as Landlord may
reasonably require.
Such insurance shall be maintained at all times during the
performance of the work and shall not be cancelable except on 30
days' prior written notice to Landlord.
(k) Upon completion of each Alteration, Tenant shall
remove, at its sole cost and expense, all debris from the
Premises and clean the same. If the exterior portions of the
windows in the Building become soiled as a result of the
Alterations made by Tenant, Tenant shall reimburse Landlord,
within fifteen (15) days after the rendition of a bill therefor,
for Landlord's cost of cleaning such windows.
(l) Upon completion of each Alteration, Tenant shall
deliver "as-built" plans and specifications for the portions of
such Alteration which relate to mechanical, electrical, plumbing
and structural work to Landlord at Tenant's sole cost and
expense.
6.4. Landlord shall not be responsible for any labor or
materials furnished to Tenant, or for delays of any kind
experienced by Tenant's contractors, unless caused by the
negligence or willful misconduct of Landlord or its agents,
servants, employees or contractors. No Lien for any labor,
materials, or other services or things furnished to Tenant shall
attach to or affect Landlord's estate or interest in the
Premises, the Land and/or the Building. Tenant agrees to
discharge, at Tenant's expense (whether by payment, bonding, or
otherwise) every Lien filed against the Premises, the Land and/or
the Building for work claimed to have been done for or materials
claimed to have been furnished to Tenant, within 30 days after
receiving notice of the same. Tenant shall require that all
contractors and subcontractors engaged in connection with
Tenant's Alterations indemnify and hold Landlord harmless against
any and all claims for injury to persons or damage to property by
reason of such contractor's or subcontractor's use of the
Premises or performance of the work, including any claims, fines
and penalties imposed due to a failure to comply with Laws.
<PAGE>
6.5. Notice is hereby given that Landlord shall not be
liable for any labor or materials furnished or to be furnished to
Tenant upon credit, and that no mechanic's or other Lien for any
such labor or materials shall attach to or affect the reversion
or other estate or interest of Landlord in and to the Premises.
6.6. All fixtures, improvements, alterations,
installations, additions, paneling, partitions, doors, railings
and like installations affixed to the Premises at any time,
either by Tenant or by Landlord or others on Tenant's behalf and
whether installed or purchased at Landlord's or Tenant's expense
(collectively, the "Leasehold Improvements") shall become the
property of Landlord upon installation. The Leasehold
Improvements shall remain upon, and shall be surrendered with,
the Premises unless Landlord elects, by notice to Tenant given
either (a) not less than sixty (60) days before the Expiration
Date or (b) upon the sooner termination of this Lease, to have
Tenant remove all or part of the Leasehold Improvements. In such
event, prior to the expiration or sooner termination of this
Lease and at Tenant's sole cost and expense, Tenant shall remove
all such Leasehold Improvements as Landlord has specified for
removal in such notice and shall repair all damage to the
Premises or to the Building due to such removal and restore the
same to the condition existing immediately prior to the
installation of such Leasehold Improvements, ordinary wear and
tear excepted. Notwithstanding anything contained in this
Article 6 to the contrary, Tenant's obligation to remove
alterations and/or improvements and/or Leasehold Improvements is
limited to alterations and improvements installed by or at the
request of Tenant and shall not include the Landlord's Work.
6.7. If any alterations, installations, additions,
improvements or other property that Tenant shall have the right
to remove or be requested by Landlord to remove are not removed
on or prior to the expiration of the Term of this Lease, Landlord
shall have the right to remove the property and to dispose of the
same without accountability to Tenant and at the sole cost and
expense of Tenant. In case of any damage to the Premises or the
Building resulting from the removal of the property (whether such
removal is performed by Landlord or by Tenant), Tenant shall
repair such damage or, in default thereof, shall reimburse
Landlord for Landlord's cost in repairing such damage. Tenant's
obligations under this Section 6.7 shall survive the expiration
or other termination of this Lease.
<PAGE>
6.8. Tenant shall keep records of Tenant's alterations,
installations, additions and improvements costing in excess of
$10,000, and of the component (by category) cost thereof. Tenant
shall, within 60 days after demand by Landlord, furnish to
Landlord copies of such records and cost if Landlord shall
require same in connection with any proceeding to reduce the
assessed valuation of the Building, or in connection with any
proceeding instituted pursuant to Article 14 hereof.
6.9. Before commencing any work with respect to an
Alteration costing in excess of Seventy-Five Thousand Dollars
($75,000.00), Tenant shall deliver to Landlord the following, at
Tenant's sole expense, each in a form satisfactory to Landlord
and each issued by a surety company or insurer previously
approved in writing by Landlord, and shall maintain the same
until completion of the work: (a) a payment bond guaranteeing to
Landlord and/or Landlord's assigns Tenant's timely payment for
all labor, services, materials and equipment furnished in
connection with the Alteration or any portion thereof (and to all
persons or firms furnishing the same); and (b) a performance bond
guaranteeing to Landlord and/or Landlord's assigns Tenant's full
and faithful completion of the Alteration in accordance with the
plans and specifications approved by Landlord.
ARTICLE 7 REPAIRS
7.1. (a) Tenant shall, at its sole cost and expense,
take good care of the Premises and the fixtures and appurtenances
therein and make all repairs thereto as and when needed to
preserve them in good working order and condition and maintain
the Premises in a condition consistent with a first class office
building. Tenant, at its sole cost and expense, shall promptly
replace all scratched, damaged or broken doors and glass in and
about the Premises and shall be responsible for all repairs,
maintenance and replacement of wall and floor coverings in the
Premises and for the repair and maintenance of all electrical
fixtures and equipment therein, except to the extent caused by
Landlord's negligence or willful misconduct.
<PAGE>
(b) All damage or injury to the Premises and to its
fixtures, appurtenances and equipment or to the Building or to
its fixtures, appurtenances and equipment caused by or which
arises out of (i) Tenant moving property in or out of the
Building, or (ii) the installation or removal of furniture,
fixtures or other property, or (iii) the performance or existence
of any alterations performed in the Premises or (iv) the
installation, use or operation of Tenant's property in the
Premises or (v) from any other cause of any other kind or nature
whatsoever due to carelessness, omission, neglect, improper
conduct or other cause on the part of Tenant, its servants,
employees, agents, visitors, or licensees, shall be repaired,
restored or replaced promptly at Tenant's sole cost and expense
to the reasonable satisfaction of Landlord. Any repairs required
to be made by Tenant due to the foregoing acts of Tenant to the
mechanical, electrical, plumbing, heating, ventilating, air-
conditioning, fire safety or other systems of the Building shall
be performed only by contractor(s) designated by Landlord. Any
other repairs in or to the Building and the facilities and
systems thereof for which Tenant is responsible shall be
performed by Landlord at Tenant's expense. All repairs,
restorations and replacements made by Tenant shall be in quality
and class equal to the work or installations and shall conform to
Building Standards. If Tenant fails to make such repairs,
restoration or replacements, same may be made by Landlord at the
expense of Tenant and such expense shall be collectible as
additional rent and shall be paid by Tenant within twenty-five
(25) days after rendition of a bill therefor. Notwithstanding
the foregoing, Landlord shall be responsible for any structural
repairs to the Premises, any repairs to any building systems
located within the Premises, unless such repairs are necessitated
by an act of or on behalf of Tenant.
(c) The exterior walls of the Building, elevators and
elevator shafts, elevator and other Building shafts, and conduits
which extend to any floor above or below the Premises, the roof,
and the portions of any window sills outside the windows, and the
windows are not part of the Premises and Landlord reserves all
rights to such parts of the Building.
7.2. (a) Tenant shall not place a load upon any floor
of the Premises exceeding the floor load per square foot area
that such floor was designed to carry and that is allowed by law.
If Tenant shall desire a floor load in excess of that which such
floor was designed to carry and which is allowed by law, Tenant
shall submit plans and specifications for such floor load to
Landlord for Landlord's review and approval. Tenant shall pay
all costs and expenses incurred by Landlord in connection with
its review of Tenant's plans and specifications.
<PAGE>
(b) Landlord shall not unreasonably withhold its
consent to Tenant's request to strengthen and reinforce the floor
to provide the live load desired so long as Landlord's architects
and engineers, in their sole discretion, find that the work
necessary to increase such floor load (i) does not affect
adversely the structure of the Building, (ii) will not interfere
with the amount or availability of any space adjoining alongside,
above or below the Premises, (iii) will not interfere with the
occupancy of other tenants in the Building and (iv) may be
accomplished without disturbing the load bearing columns, walls
or configuration of the Building. Tenant's plans and
specifications shall also provide for the restoration of the
floor to its condition prior to such requested strengthening and
reinforcement. Tenant shall agree to pay for or reimburse
Landlord on demand for the cost of such strengthening and
reinforcement and for the cost of restoration of the floor to its
condition prior to such strengthening and reinforcement, as well
as any other costs to and expenses of Landlord occasioned by or
resulting from such strengthening or reinforcement.
7.3. Business machines and mechanical equipment used by
Tenant that cause vibration, noise, cold or heat that may be
transmitted to the Building structure or to any leased space to
such a degree as to be objectionable to Landlord or to any other
tenant in the Building shall be placed and maintained by Tenant
at its expense in settings of cork, rubber or spring type
vibration eliminators sufficient to absorb and prevent such
vibration or noise, or prevent transmission of such cold or heat.
Tenant acknowledges that the operation of elevators, air-
conditioning and heating equipment will cause some vibration,
noise, heat or cold that may be transmitted to other parts of the
Building and Premises and Landlord shall have no responsibility
with regard thereto.
7.4. Except as otherwise specifically provided in this
Lease, there shall be no allowance to Tenant for a diminution of
rental value and no liability on the part of Landlord by reason
of inconvenience, annoyance or injury to business arising from
the making of any repairs, alterations, additions or improvements
in or to any portion of the Building or the Premises or in or to
fixtures, appurtenances or equipment thereof. Landlord shall
exercise reasonable diligence so as to minimize any interference
with Tenant's business operations, but shall not be required to
perform the same on an overtime or premium pay basis.
7.5. Tenant will not clean, nor require, permit, suffer
or allow any window in the Premises to be cleaned from the
outside in violation of Section 202 of the Labor Law or any other
applicable Legal Requirement.
<PAGE>
ARTICLE 8 REQUIREMENTS OF LAW
8.1. If Tenant receives any notice of any violation of
any Legal Requirement, Tenant shall give prompt written notice
thereof to Landlord. Tenant shall comply with all Legal
Requirements which shall impose any violation, order or duty upon
Landlord or Tenant with respect to the Premises (including,
without limitation, the performance of any alterations under the
Americans with Disabilities Act of 1990) or the use or occupation
thereof (in which event Tenant shall effect such compliance at
its sole cost and expense) or the Building due to Tenant's
particular manner of use of the Premises (in which event,
notwithstanding anything herein to the contrary, Landlord shall
effect such compliance but Tenant shall pay upon written demand
Tenant's Proportionate Share of the cost of such compliance,
provided that if the cost of such compliance requires the
installation of any machinery or equipment or other capital
improvement to the Building, Tenant shall pay Tenant's
Proportionate Share of such cost amortized over the useful life
(but not in excess of ten years) of the improvement, machinery or
equipment together with interest on such amount at the Interest
Rate). If, as a result of any act or omission by Tenant or
violation of this Lease, any Legal Requirement is violated,
Tenant, at its sole cost and expense, shall cause any such
violation to be promptly cured. The foregoing shall include any
structural alterations necessary to effect such a cure. The
provisions of this Section 8.1 shall not apply to the Landlord's
Work.
8.2. (a) Without limiting the generality of Section 8.1, if
any Legal Requirement shall require the installation of fire
extinguishers, a "sprinkler system," fire detection and
prevention equipment (including, but not limited to, smoke
detectors, heat sensors and speakers), or any changes,
modifications or alterations of any existing system (if
attributable to Tenant's particular manner of use of the Premises
or to alterations performed by Tenant) or are necessary to
prevent the imposition of a penalty, an additional charge, or an
increase in any insurance rates as a result of the use of the
Premises whether or not the same is a Permitted Use, then
Landlord shall, at Tenant's sole cost and expense, promptly make
such installations within the Premises.
(b) Without limiting the generality of Section 8.1,
Tenant, at its sole cost and expense, shall comply with all Legal
Requirements regarding the collection, sorting, separation and
recycling of waste products, garbage, refuse and trash. Tenant
shall sort and separate such waste products, garbage, refuse and
trash into such categories as provided by any Legal Requirements.
Each separately sorted category of waste products, garbage,
refuse and trash shall be placed in separate receptacles
reasonably approved by Landlord. Such separate receptacles may,
at Landlord's option, be removed from the Premises in accordance
with a collection schedule prescribed by any Legal Requirements.
Landlord reserves the right to refuse to collect or accept from
Tenant any waste products, garbage, refuse or trash that is not
separated and sorted as required by any Legal Requirement, and to
require Tenant to arrange for such collection at Tenant's sole
cost and expense, utilizing a contractor satisfactory to
Landlord.
<PAGE>
8.3. Notwithstanding the provisions of Sections 8.1 and
8.2 hereof, Tenant, at its own cost and expense, in its name
and/or (whenever necessary) Landlord's name, may contest, in any
manner permitted by law (including appeals to a court or
governmental department or authority having jurisdiction in the
matter), the validity or the enforcement of any governmental act,
regulation or directive with which Tenant is required to comply
pursuant to this Lease, and may defer compliance therewith during
the course of such contest, provided that (a) such non-compliance
shall not subject Landlord to criminal prosecution or subject the
Land and/or Building to Lien or sale, (b) such non-compliance
shall not be in violation of any fee mortgage or of any ground or
underlying lease or any mortgage thereon, (c) Tenant shall
indemnify Landlord and protect Landlord from and against any
loss or injury by reason of such non-compliance, and (d) Tenant
shall prosecute such contest promptly and diligently to its
conclusion.
8.4. Landlord, without expense or liability to it, shall
cooperate with Tenant and execute any documents or pleadings
required for such purpose, provided that Landlord shall be
reasonably satisfied that the facts set forth in any such
documents or pleadings are accurate.
ARTICLE 9 INSURANCE, LOSS, REIMBURSEMENT, LIABILITY
9.1. Tenant shall not do, permit or suffer to be done
any act or thing upon the Premises that would invalidate or be in
conflict with New York standard fire and property damage
insurance policies covering the Building, and fixtures and
property therein, or that would increase the rate of insurance
applicable to the Building to an amount higher than it otherwise
would be; and Tenant neither shall do nor shall Tenant permit to
be done any act or thing upon the Premises that shall or might
subject Landlord to any liability or responsibility for injury to
any person or persons or to property by reason of any business or
operation being carried on within the Premises.
9.2. If, as a result of any act or omission by Tenant
or violation of this Lease, the rate of any insurance applicable
to the Building shall be increased to an amount higher than it
otherwise would be, Tenant shall reimburse Landlord for all
increases of Landlord's insurance premiums so caused; such
reimbursement to be additional rent payable upon the first day of
the month following any outlay by landlord for such increased
insurance premiums. In any action or proceeding wherein Landlord
and Tenant are parties, a schedule or "make-up" of rates for the
Building or Premises issued by the body making insurance rates
for the Premises, shall be presumptive evidence of the facts
therein stated and of the several items and charges in the
insurance rate then applicable to the Premises.
<PAGE>
9.3. Landlord or its agents shall not be liable for any
injury or damage to persons or property (including, but not
limited to, loss of profits and injury to business) resulting
from fire, explosion, falling plaster, steam, gas, electricity,
water, rain or snow or leaks from any part of the Building, or
from the pipes, appliances or plumbing works or from the roof,
street or subsurface or from any other place or by dampness or by
any other cause of any nature, unless any of the foregoing shall
be caused by or due to the gross negligence or willful misconduct
of Landlord, its agents, servants or employees.
9.4. Landlord or its agents shall not be liable for any
damage which Tenant may sustain, if at any time any window of the
Premises is broken, or temporarily or permanently (restricted to
windows on a lot line, if permanently) closed, darkened or
bricked up for any reason whatsoever, except only Landlord's
arbitrary acts if the result is permanent, and Tenant shall not
be entitled to any compensation therefor or abatement of rent or
to any release from any of Tenant's obligations under this Lease,
nor shall the same constitute an eviction.
9.5. Tenant shall reimburse Landlord for all expenses,
damages or fines incurred or suffered by Landlord, by reason of
any breach, violation or non-performance by Tenant, or its
agents, servants or employees, of any covenant or provision of
this Lease. Subject to the provisions of Section 8.3 hereof,
where applicable, Tenant shall have the right, at Tenant's own
cost and expense, to participate in the defense of any action or
proceeding brought against Landlord, and in negotiations for
settlement thereof if, pursuant to this Section 9.5, Tenant would
be obligated to reimburse Landlord for expenses, damages or fines
incurred or suffered by Landlord.
9.6. Tenant shall give Landlord notice in case of fire
or accidents in the Premises promptly after Tenant becomes aware
of such event.
9.7. Landlord and its agents, officers, directors and
members (and, in case Landlord shall be a joint venture,
partnership, tenancy-in-common, association or other form of
joint ownership, the members of any such joint venture,
partnership, tenancy-in-common, association or other form of
joint ownership) shall have absolutely no personal liability with
respect to any provision of this Lease or any obligation or
liability arising therefrom or in connection therewith. Tenant
shall look solely to Landlord's estate and interest in the land
and Building, or the lease of the Building or of the Land and
Building, and the Premises, for the satisfaction of any right or
remedy of Tenant for the collection of a judgment (or other
judicial process) requiring the payment of money by Landlord. No
other property or assets of Landlord or any agent, officer,
director or member shall be subject to levy, execution,
attachment, or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder, or Tenant's use
and occupancy of the Premises, or any other liability of Landlord
to Tenant. However, nothing contained in this Section shall be
construed to permit Tenant to offset against rents due a
successor landlord a judgment (or other judicial process)
requiring the payment of money by reason of any default of a
prior landlord.
<PAGE>
9.8. (a) Landlord shall include in its insurance policies
appropriate clauses pursuant to which the insurance companies (i)
waive all right of subrogation against Tenant with respect to
losses payable under such policies and/or (ii) agree that such
policies shall not be invalidated should the insured waive in
writing prior to a loss any or all right of recovery against any
party for losses covered by such policies.
(b) Tenant shall obtain on or before the Commencement
Date and shall keep in force during the Term hereof, all-risk
insurance in an amount equal to the full replacement cost of
Tenant's furniture, furnishings and other removable personal
property and of all fixtures including leasehold improvements and
betterments. Tenant shall include in such insurance policy or
policies appropriate clauses pursuant to which the insurance
company or companies (i) waive the right of subrogation against
Landlord and/or any tenant of space in the Building with respect
to losses payable under such policy or policies and/or (ii) agree
that such policy or policies shall not be invalidated should the
insured waive in writing prior to a loss any or all right of
recovery against any party for losses covered by such policy or
policies.
(c) Provided that Landlord's right of full recovery
under its policy or policies aforesaid is not adversely affected
or prejudiced thereby, Landlord hereby waives any and all right
of recovery that it might otherwise have against Tenant, its
servants, agents and employees, for loss or damage occurring to
the Building and the fixtures, appurtenances and equipment
therein, to the extent of the net proceeds of insurance actually
received by Landlord as a result of such loss or damage,
notwithstanding that such loss or damage may result from the
negligence or fault of Tenant, its servants, agents or employees.
Provided that Tenant's right of full recovery under its aforesaid
policy or policies is not adversely affected or prejudiced
thereby, Tenant hereby waives any and all right of recovery which
it might otherwise have against Landlord, its servants, and
employees, and against every other tenant in the Building who
shall have executed a similar waiver as set forth in this Section
9.8(c) for loss or damage to, Tenant's furniture, furnishings,
fixtures and other property removable by Tenant under the
provisions hereof to the extent of the net proceeds of insurance
actually received by Tenant as a result of such loss or damage,
notwithstanding that such loss or damage may result from the
negligence or fault of Landlord, its servants, agents or
employees, or such other tenant and the servants, agents or
employees thereof.
9.9. (a) Tenant shall provide on or before the
Commencement Date and shall keep in force during the Term hereof
for the benefit of Landlord and Tenant a comprehensive general
liability insurance policy (including contractual liability)
protecting Landlord and Tenant against any liability whatsoever,
arising out of the use of the Premises or any appurtenances
thereto or occasioned by any occurrence on or about the Premises
or any appurtenances thereto. Such policy shall be not less than
the amount of $2,000,000 per occurrence for bodily or personal
injury (including death) and in the amount of $1,000,000 in
respect of property damage which amounts shall be subject to
increase from time to time as Landlord may reasonably request
(and within 30 days after such request, Tenant shall furnish
Landlord with evidence of such increase in coverage). The
insurance amounts specified in this section may be provided by
Tenant by means of a prime policy and an umbrella to equal the
amounts required hereunder.
<PAGE>
(b) All insurance required by this Lease shall be
evidenced by valid and enforceable policies issued by companies
(i) licensed to do business in the State of New York and (ii)
having a financial size category of not less than X and with
general policy holders rating of not less than "A-" as rated by
"Best's" insurance reports. All insurance policies shall name
Landlord and its designated managers and agents as additional
insureds. The insurance required by this Article may be carried
under a blanket policy covering the Premises and other locations
of Tenant, if any. Prior to the time such insurance is first
required to be carried by Tenant and thereafter, at least 15 days
prior to the effective date of any such policy, Tenant shall
deliver to Landlord either a duplicate original of the aforesaid
policies or a certificate(s) evidencing such insurance. Said
certificate(s) shall contain an endorsement that such insurance
may not be canceled except upon 30 days' written notice to
Landlord. Tenant's failure to provide and keep in force the
aforementioned insurance shall be regarded as a default hereunder
entitling Landlord to exercise any or all of the remedies
provided in this Lease in the event of Tenant's default.
ARTICLE 10 DAMAGE BY FIRE OR OTHER CAUSE
10.1. If the Premises or any part thereof shall be
damaged by fire or other casualty Tenant shall give immediate
notice thereof to Landlord and this Lease shall continue in full
force and effect except as hereinafter set forth.
10.2. (a) If the Premises are partially damaged or
rendered partially untenantable by fire or other casualty, the
damage thereto shall be repaired by and at the expense of
Landlord and the fixed annual rent and the additional rent
payable under Articles 3 and 4 until such repair shall be
substantially completed and Tenant is able to conduct its
business in the Premises shall be apportioned from the day
following the casualty according to the part of the Premises that
is tenantable.
(b) If the Premises are totally or substantially
damaged or are rendered wholly or substantially untenantable by
fire or other casualty, then the fixed annual rent and the
additional rent payable under Articles 3 and 4 shall be paid up
proportionately to the time of the casualty and thenceforth shall
cease until the date when the Premises shall have been repaired
and restored by Landlord, subject to Landlord's right to elect
not to restore the same as hereinafter provided.
<PAGE>
(c) If the Main Premises are totally or substantially
damaged or are rendered wholly or substantially untenantable
(whether or not the Premises are damaged) or if the Building
shall be so damaged that Landlord shall decide to demolish it or
to rebuild it, or if at least 50% of the floor area of the
Premises is damaged or destroyed during the last 18 months of the
then current Term of this Lease, then, in any of such events,
Landlord may elect to terminate this Lease by written notice to
Tenant. Such notice shall be given by Landlord within 90 days
after such fire or casualty specifying a date for the expiration
of the Lease, which date shall not be more than 60 days after the
giving of such notice, and upon the expiration date specified in
such notice the Term of this Lease shall expire as fully and
completely as if such date were the date set forth above for the
termination of this Lease and Tenant shall forthwith quit,
surrender and vacate the Premises without prejudice however to
Landlord's rights and remedies against Tenant under the Lease
provisions in effect prior to such termination. Any rent owing
shall be paid up to the date of the fire or other casualty
(subject to abatement as provided in subparagraph 10.2(b) above)
and any payments of rent made by Tenant that were on account of
any period subsequent to such date shall be returned to Tenant
within thirty (30) days thereafter. Unless Landlord shall serve
a termination notice as provided for herein, Landlord shall make
the repairs and restorations under the conditions of (a) and (b)
hereof, with all reasonable expedition during Business Days and
Business Hours, subject to delays due to adjustment of insurance
claims, labor troubles and causes beyond Landlord's control.
After any such casualty, Tenant shall cooperate with Landlord's
restoration by removing from the Premises as promptly as
reasonably possible, all of Tenant's salvageable inventory and
movable equipment, furniture and other property. Tenant's
liability for rent shall resume five days after written notice
from Landlord that the Premises are substantially ready for
Tenant's occupancy. If the restoration of the Premises has not
been completed within nine (9) months following the date of such
casualty, subject to force majeure events beyond the reasonable
control of Landlord, then Tenant shall have the right to
terminate this Lease upon notice to Landlord given by Tenant
within fifteen (15) days after the expiration of such ninety (90)
day period. For the purpose of this Lease, the phrase "subject
to force majeure events beyond the reasonable control of
Landlord" shall mean if Landlord is delayed in making any
repairs, additions, alterations, improvements or decorations or
is unable to supply or is delayed in supplying any equipment or
fixtures, or if Landlord is prevented or delayed from so doing by
reason of strikes or labor troubles or by accident, adjustment of
insurance or by any cause whatsoever beyond Landlord's reasonable
control in the ordinary course of Landlord's business, including
but not limited to, laws or governmental preemption in connection
with a national emergency, or by reason of any Requirements of
any Governmental Authority or the conditions of supply and demand
which have been or are affected by war or other emergency
(collectively, "Unavoidable Delays").
<PAGE>
10.3. Nothing contained in this Article 10 shall relieve
Tenant from liability that may exist as a result of damage from
fire or other casualty caused by Tenant.
10.4. No damages, compensation or claim shall be payable
by Landlord for inconvenience, loss of business or annoyance
arising from any repair or restoration of any portion of the
Premises or of the Building pursuant to this Article 10.
10.5. Notwithstanding any of the foregoing provisions of
this Article 10, if Landlord or the lessor of any superior lease
or the holder of any superior mortgage shall be unable to collect
all of the insurance proceeds (including rent insurance proceeds)
applicable to damage or destruction of the Premises or the
Building by fire or other cause, caused by some action or
inaction on the part of Tenant or any of its employees, agents or
contractors, then, without prejudice to any other remedies that
may be available against Tenant, there shall be no abatement of
Tenant's rents, but the total amount of such rents not abated
(that otherwise would have been abated) shall not exceed the
amount of uncollected insurance proceeds.
10.6. Landlord will not carry separate insurance of any
kind on Tenant's property or leasehold improvements, alterations,
installations or additions made to the Premises, and, except as
provided by law or by reason of its breach of any of its
obligations hereunder, shall not be obligated to repair any
damage thereto or replace the same. Tenant may maintain
insurance on Tenant's property, leasehold improvements,
alterations, installations and additions and Landlord shall not
be obligated to repair any damage thereto or replace the same.
10.7. The provisions of this Article 10 shall be
considered an express agreement governing any cause of damage or
destruction of the Premises by fire or other casualty, and
Section 227 of the Real Property Law of the State of New York,
providing for such a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter in
force, shall have no application in such case.
<PAGE>
ARTICLE 11 ASSIGNMENT, MORTGAGING, SUBLETTING, ETC.
11.1. Tenant shall not by operation of law or otherwise
(a) assign or otherwise transfer this Lease or the Term and
estate hereby granted, (b) sublet the Premises or any part
thereof or allow the same to be used or occupied by others, (c)
mortgage, pledge or encumber this Lease or the Premises or any
part thereof in any manner by reason of any act or omission on
the part of Tenant, or (d) advertise, or authorize a broker to
advertise, for a subtenant or an assignee, without, in each
instance, obtaining the prior written consent of Landlord, except
as otherwise expressly provided in this Article 11, which consent
shall not be unreasonably withheld or delayed. For purposes of
this Article 11, (i) the transfer of a majority of the issued and
outstanding capital stock of any corporate tenant, or of a
corporate subtenant, or the transfer of a majority of the total
interest in any partnership tenant or subtenant, or the transfer
of control in any limited partnership tenant or subtenant,
however accomplished, whether in a single transaction or in a
series of related or unrelated transactions, shall be deemed an
assignment of this Lease, or of such sublease, as the case may
be, except that the transfer of the outstanding capital stock of
any corporate tenant, or subtenant, shall be deemed not to
include the sale of such stock by persons or parties, other than
those deemed "affiliates" of Tenant within the meaning of Rule
144 promulgated under the Securities Act of 1933, as amended,
through the "over-the-counter market" or through any recognized
stock exchange (including, without limitation the NASDAQ
exchange), (ii) any increase in the amount of issued and/or
outstanding capital stock of any corporate tenant, or of a
corporate subtenant, and/or the creation of one or more
additional classes of capital stock of any corporate tenant or
any corporate subtenant, in a single transaction or a series of
related or unrelated transactions, resulting in a change in the
legal or beneficial ownership of such tenant or subtenant so that
the shareholders of such tenant or subtenant existing immediately
prior to such transaction or series of transactions shall no
longer own a majority of the issued and outstanding capital stock
of such tenant or subtenant, shall be deemed an assignment of
this Lease, (iii) an agreement by any other person or entity,
directly or indirectly, to assume Tenant's obligations under this
Lease shall be deemed an assignment, (iv) any person or legal
representative of Tenant, to whom Tenant's interest under this
Lease passes by operation of law, or otherwise, shall be bound by
the provisions of this Article 11, and (v) a modification,
amendment or extension of a sublease shall be deemed a sublease.
Tenant agrees to furnish to Landlord upon demand at any time such
information and assurances as Landlord may reasonably request
that neither Tenant, nor any previously permitted subtenant, has
violated the provisions of this Section 11.1.
<PAGE>
11.2. Subject to the following sentence, the provisions
of Section 11.1 hereof shall not apply to transactions with a
wholly owned subsidiary of Tenant or an Affiliate (as hereinafter
defined) of Tenant or a corporation into or with which Tenant is
merged or consolidated or with an entity to which substantially
all of Tenant's assets are transferred (provided such merger or
transfer of assets is for a good business purpose and not
principally for the purpose of transferring the leasehold estate
created hereby, and provided further, that the assignee has a net
worth at least equal to or in excess of the net worth of Tenant
immediately prior to such merger or transfer) or, if Tenant is a
partnership, with a successor partnership, nor shall the
provisions of clauses (a) and (b) of Section 11.1 apply to
transactions with an entity that controls or is controlled by
Tenant or is under common control with Tenant. Nothing in this
Section 11.2 shall permit Tenant or any successor to use or
occupy the Premises for any purpose other than the purposes
stated in Article 5 of this Lease. For the purpose of this
Section 11.2, the term "Affiliate" shall mean entities that are
controlled by Tenant, or are under common control with Tenant or
entities that control Tenant.
11.3. Any assignment or transfer, whether made with
Landlord's consent as required by Section 11.1 or without
Landlord's consent pursuant to Section 11.2, shall be made only
if, and shall not be effective until, the assignee shall execute,
acknowledge and deliver to Landlord a recordable agreement, in
form and substance reasonably satisfactory to Landlord, whereby
the assignee shall assume the obligations and performance of this
Lease and shall agree to be bound by and upon all of the
covenants, agreements, terms, provisions and conditions hereof on
the part of Tenant to be performed or observed and whereby the
assignee shall agree that the provisions of Section 11.1 hereof
shall, notwithstanding such an assignment or transfer, continue
to be binding upon it in the future. Tenant covenants that,
notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding
the acceptance of rent by Landlord from an assignee or transferee
or any other party, Tenant shall remain fully and primarily
liable (other than in the event of an assignment by Tenant to
Landlord or to Landlord's designee) for the payment of the rent
due and to become due under this Lease and for the performance of
all of the covenants, agreements, terms, provisions and
conditions of this Lease on the part of Tenant to be performed or
observed, except to the extent that Landlord and any assignee
agree to modify this Lease and increase the obligations of Tenant
hereunder.
<PAGE>
11.4. The liability of Tenant, and the due performance
by Tenant of the obligations on its part to be performed under
this Lease, shall not be discharged, released or impaired in any
respect by an agreement or stipulation made by Landlord or any
grantee or assignee of Landlord, by way of mortgage, or
otherwise, extending the time of, or modifying any of the
obligations contained in this Lease, or by any waiver or failure
of Landlord to enforce any of the obligations on Tenant's part to
be performed under this Lease, and Tenant shall continue liable
hereunder. If any such agreement or modification operates to
increase the obligations of a tenant under this Lease, the
liability under this Section 11.4 of Tenant named in this Lease
or any of its successors in interest (unless such party shall
have expressly consented in writing to such agreement or
modification) shall continue to be no greater than if such
agreement or modification had not been made. To charge Tenant
named in this Lease and its successors in interest, no demand or
notice of any default shall be required. Tenant and each of its
successors in interest hereby expressly waive any such demand or
notice.
11.5. Landlord shall not unreasonably withhold or delay
its consent to an assignment of this Lease or a subletting of the
whole or a part of the Premises for substantially the remainder
of the Term of this Lease, provided:
(a) Tenant shall furnish Landlord with the name and
business address of the proposed subtenant or assignee,
information with respect to the nature and character of the
proposed subtenant's or assignee's business, or activities, such
references and current financial information with respect to net
worth, credit and financial responsibility as are reasonably
satisfactory to Landlord, and an executed counterpart of the
sublease or assignment agreement;
(b) the proposed subtenant or assignee is a reputable
party whose financial net worth, credit and financial
responsibility is, considering the responsibilities involved,
reasonably satisfactory to Landlord;
(c) the nature and character of the proposed subtenant
or assignee, its business or activities and intended use of the
Premises is, in Landlord's reasonable judgment, in keeping with
the standards of the Building and the floor or floors on which
the Premises are located;
(d) the proposed subtenant or assignee is not then an
occupant of any part of the Building or a party who dealt with
Landlord or Landlord's agent (directly or through a broker) with
respect to space in the Building during the 12 months immediately
preceding Tenant's request for Landlord's consent:
(e) all costs incurred with respect to providing
reasonably appropriate means of ingress and egress from the
sublet space or to separate the sublet space from the remainder
of the Premises shall, subject to the provisions of Article 6
with respect to alterations, installations, additions or
improvements, be borne by Tenant;
(f each sublease shall state specifically that (i) it
is subject to all of the terms, covenants, agreements, provisions
and conditions of this Lease, (ii) the subtenant or assignee, as
the case may be, will not have the right to a further assignment
thereof or sublease or assignment thereunder, or to allow the
Premises to be used by others, without the consent of Landlord in
each instance, (iii) a consent by Landlord thereto shall not be
deemed or construed to modify, amend or affect the terms and
provisions of this Lease, or Tenant's obligations hereunder,
which shall continue to apply to the premises involved, and the
occupants thereof, as if the sublease or assignments had not been
made, (iv) if Tenant defaults in the payment of any rent,
Landlord is authorized to collect any rents due or accruing from
any assignee, subtenant or other occupant of the Premises and to
apply the net amounts collected to the fixed annual rent and
additional rent reserved herein and (v) the receipt by Landlord
of any amounts from an assignee or subtenant, or other occupant
of any part of the Premises shall not be deemed or construed as
releasing Tenant from Tenant's obligations hereunder or the
acceptance of that party as a direct tenant;
(g Tenant, together with requesting Landlord's
consent hereunder, shall have paid Landlord any reasonable costs
incurred by Landlord to review the requested consent including,
without limitation, any reasonable attorneys' fees incurred by
Landlord;
<PAGE>
(h Tenant shall have complied with the provisions in
Section 11.6 and Landlord shall not have made any of the
elections provided for in Section 11.6;
(i the proposed subtenant or assignee is not (i) an
employment or recruitment agency; (ii) a school, college,
university or educational institution whether or not for profit;
(iii) a government or any subdivision or agency thereof; (iv)
engaged in the business of providing office space and facilities
to sublessees or licensees; or (v) engaged in the business of
public stenographer or typist, barber shop, beauty shop, beauty
parlor or shop, telephone or telegraph agency, telephone or
secretarial service, messenger service, commercial document
reproduction or offset printing service or public vending machine
service;
(j in the case of a subletting of a portion of the
Premises, the portion so sublet shall be regular in shape and
suitable for normal renting purposes;
(k Tenant shall have granted to Landlord or its
agent, at Landlord's election, the exclusive right to sublease
the Premises or such portion thereof as Tenant proposes to
sublet, or to assign this Lease, as the case may be, for a period
of sixty (60) days;
(l the nature of the occupancy of the proposed
assignee or subtenant will not cause an excessive density of
employees or traffic or make excessive demands on the Buildings
services or facilities; and
(m) there shall be no more than two (2) subtenants of
the Premises at any time.
The provisions of this Section 11.5 shall only apply to the
original Tenant named on the first page of this Lease and shall
be of no force and effect as to a subtenant or an assignee of
this Lease.
11.6. (a Should Tenant desire to assign this
Lease, other than by an assignment contemplated by Section 11.2,
Tenant shall deliver to Landlord a notice setting forth the
material terms and conditions of such proposed assignment by
Tenant and Landlord shall then have the right to elect, by
notifying Tenant within 30 days of such delivery, (i) to
terminate this Lease as of such effective date as if such date
were the Expiration Date set forth in this lease or (ii) to
accept an assignment of this Lease from Tenant on the terms and
conditions set forth in Tenant's notice to Landlord, and Tenant
shall then promptly execute and deliver to Landlord, or
Landlord's designee if so elected by Landlord, in form reasonably
satisfactory to Landlord's counsel, an assignment that shall be
effective as of such effective date. Upon any assignment to
Landlord or Landlord's designee, Tenant shall be released from
its obligations under this Lease arising after the date of such
assignment.
<PAGE>
(b In the event that this Lease shall be assigned to
Landlord or Landlord's designee or if the Premises shall be
sublet to Landlord or Landlord's designee pursuant to Section
11.6(c), the provisions of any such assignment or sublease and
the obligations of Landlord and the rights of Tenant with respect
thereto shall not be binding upon or otherwise affect the rights
of any holder of a superior mortgage or of a superior lease
unless such holder shall elect by written notice to Tenant to
succeed to the position of Landlord or its designee, as the case
may be, thereunder.
(c Should Tenant desire to sublet the Premises or any
portion thereof, other than by a sublease contemplated by Section
11.2, Tenant shall deliver to Landlord a notice setting forth the
material terms and conditions of such proposed subletting by
Tenant and Landlord shall then have the right to elect, by
notifying Tenant within 30 days of such delivery, (i) only to
terminate this Lease as to the portion of the Premises affected
by such proposed subletting or as to the entire Premises in the
case of a subletting of the entire Premises, as of such effective
date, (ii) in the case of a proposed subletting of the entire
Premises, to accept an assignment of this Lease from Tenant, and
Tenant shall then promptly execute and deliver to Landlord, or
Landlord's designee if so elected by Landlord, in form reasonably
satisfactory to Landlord's counsel, an assignment that shall be
effective as of such effective date and releasing Tenant from its
obligations under this Lease from and after the effective date of
such assignment, (iii) to accept a sublease from Tenant of the
portion of the Premises affected by such proposed subletting or
the entire Premises in the case of a proposed subletting thereof,
and Tenant shall then promptly execute and deliver a sublease to
Landlord, or Landlord's designee if so elected by Landlord, for
the remainder of the demised Term, commencing with such effective
date, at (x) the rental terms reflected in the proposed sublease
or (y) the rental terms contained in this Lease on a per rentable
square foot basis, as elected by Landlord in such notice or (iv)
to waive its right to exercise the options set forth in this
clause (c) with respect to the transaction and the terms and
conditions set forth in such notice from Tenant and the
provisions of Section 11.5 shall apply. If, after Tenant
delivers a notice to Landlord, Landlord elects to recapture all
or any portion of the Premises under the terms of this clause
(c), then Tenant shall have the right to withdraw its notice to
Landlord so long as such notice from Tenant is given to Landlord
within ten (10) days after receipt of Landlord's notice of
election to Tenant.
<PAGE>
(d If Landlord shall elect to have Tenant execute and
deliver a sublease to Landlord or Landlord's designee, pursuant
to any of the provisions of this Section 11.6, said sublease
shall be in a form reasonably satisfactory to Landlord's counsel
and on all the terms contained in this Lease, except that said
sublease shall provide as follows:
(i) The rental terms, if elected by
Landlord, may be either as provided in clause (x) or clause (y)
of Subsection 11.6(c) hereof,
(ii) The sublease shall not provide for any
work to be done for the subtenant or for any initial rent
concessions or contain provisions inapplicable to a sublease,
except that in the case of a subletting of a portion of the
Premises Tenant shall reimburse subtenant for the cost of
erecting such demising walls as are necessary to separate the
subleased premises from the remainder of the Premises and to
provide access thereto,
(iii) Any failure of the subtenant thereunder
to comply with the provisions of said sublease, other than with
respect to the payment of rent to Tenant, provided it does not
cause a default by Tenant under the Lease, shall not constitute a
default thereunder or hereunder if Landlord has consented to such
non-compliance, and
(iv) Such sublease shall provide that
Tenant's obligations with respect to vacating the Premises and
removing any changes, alterations, decorations, additions or
improvements made in the subleased premises shall be limited to
those which accrued and related to such as were made prior to the
effective date of the sublease.
(e If pursuant to the exercise of any of Landlord's
options pursuant to Section 11.6 hereof this Lease is terminated
as to only a portion of the Premises, then the fixed annual rent
payable hereunder and the additional rent payable pursuant to
Articles 3 and 4 of this Lease shall be adjusted in proportion to
the portion of the Premises affected by such termination.
(f If Landlord shall give its consent to any
assignment of this Lease or to any sublease, Tenant, in
consideration therefor, shall pay the following to Landlord, as
additional rent:
<PAGE>
(i) in the case of an assignment, an amount
equal to fifty percent (50%) of all sums and other consideration
paid to Tenant by the assignee for or by reason of such
assignment (including, but not limited to, sums paid for the sale
or rental of Tenant's fixtures, leasehold improvements, less,
brokerage commissions, advertising expenses, tenant improvement
costs and, in the case of a sale thereof, an amount equal to the
then net unamortized or undepreciated cost thereof to Tenant
determined on the basis of Tenant's federal income tax returns
except that, with respect to Tenant's fixtures and leasehold
improvements, depreciation shall be computed on a straight-line
basis over the Term of this Lease, without regard to any renewal
options); and
(ii) in the case of a sublease, fifty percent
(50%) of any rents, additional charges and other consideration
payable under the sublease to Tenant by the subtenant in excess
of the fixed annual rent and additional rent accruing during the
term of the sublease in respect of the subleased space (at the
rate per square foot payable by Tenant hereunder) pursuant to the
terms hereof (including, but not limited to, sums paid for the
sale or rental of Tenant's fixtures, leasehold improvements,
less, brokerage commissions, advertising expenses, tenant
improvement costs and, in the case of the sale thereof, an amount
equal to the then net unamortized or undepreciated cost thereof
to Tenant determined on the basis of Tenant's federal income tax
returns except that, with respect to Tenant's fixtures and
leasehold improvements, depreciation shall be computed on a
straight line basis over the Term of this Lease, without regard
to any renewal options).
The sums payable under this Section 11.6(f) shall be paid to
Landlord as and when paid by the assignee or subtenant to Tenant.
Notwithstanding anything to the contrary set forth in this
Article 11, if Tenant elects to sublet all or a portion of the
Supplemental Premises, then the provisions of this Section
11.6(f)(ii) regarding the allocation of rent and additional rent
payable under any sublease shall not apply and Tenant shall be
entitled to retain all of the income (whether profit or
otherwise) received by Tenant as a result of any subletting of
the Supplemental Premises.
<PAGE>
11.7. Landlord shall have no liability to Tenant (or to
a broker retained by or on behalf of Tenant) for brokerage
commissions incurred with respect to any assignment of this Lease
or any subletting of all or any part of the Premises by or on
behalf of Tenant. Tenant shall pay, and shall indemnify and hold
Landlord harmless from and against, any and all cost, expense
(including, without limitation, reasonable attorneys' fees, costs
and disbursements) and liability in connection with any
compensation, commissions or charges claimed by any broker or
agent with respect to any such assignment or subletting.
11.8. Should this Lease grant or provide Tenant (i) any
options for Tenant to extend the Term hereof, (ii) rights to
expand into additional space within the Building, (iii) the right
to require Landlord to perform any work within the Building
(other than ordinary repair obligations of Landlord) or the
Premises to improve the Premises or the Building for the benefit
of Tenant, or (iv) rental concessions, such rights shall be
deemed personal to Tenant and shall not inure to the benefit of
any permitted assignee or sublessee, except an assignee or
sublessee under Section 11.2 hereof.
11.9. The listing of any name other than that of Tenant,
whether on the doors of the Premises or the Building directory,
or otherwise, shall not operate to vest any right or interest in
this Lease or in the Premises in the person or entity therein
named, nor shall it be deemed to be the consent of Landlord to
any assignment or transfer of this Lease or to any sublease of
the Premises or to the use or occupancy thereof by others.
ARTICLE 12 ELECTRICITY
12.1 Subject to the provisions of this Lease, Landlord shall
provide for the furnishing of electric current to the Premises.
Landlord has installed a meter or meters (collectively, the
"Submeter"), at a location designated by Landlord, to measure
Tenant's consumption of and demand for electric current
(including, without limitation, electricity with respect to the
operation of the ventilation and air conditioning units
exclusively serving the Premises). If and so long as electric
current is supplied by Landlord to the Premises, Tenant will pay
Landlord or Landlord's designated agent, as Additional Rent for
such service (the "Electricity Additional Rent"), a sum
determined by computing the electric utility's charges to
Landlord (including any fuel adjustment charges, rate adjustment
charges, sales tax, and/or any other charges used by the electric
utility in computing its charges to Landlord applicable to the
Premises) and adding to such amount a fee (the "Overhead Charge")
equal to seven percent (7%) of such amount (without any
duplication of any tax) representing administrative and overhead
costs of Landlord. Tenant, at Tenant's sole cost and expense,
shall be responsible for the cost of adding any additional
panels, subpanels and/or electrical feeders.
<PAGE>
12.2. The amounts measured by the Submeter shall be
binding and conclusive on Tenant. If the Submeter should fail to
properly register or operate at any time during the term of this
Lease for any reason whatsoever, Landlord may estimate the
Electricity Additional Rent for such period, as provided in the
next sentence. The period to be used for the aforesaid
computation shall be the particular months of the prior twelve
(12) month period. Where more than one meter measures the
electric service to Tenant, the electric service rendered through
each meter may be computed and billed separately, as set forth
above or cumulatively, at Landlord's option. Bills for the
Electricity Additional Rent shall be rendered to Tenant at such
time as Landlord may elect, but not more frequently than monthly.
Landlord shall maintain the Submeter at Tenant's sole cost and
expense.
12.3 (a) If Landlord is required by Law, the utility or
Insurance Requirements to discontinue furnishing electricity to
Tenant on a submetering basis, then Landlord may (but shall not
be obligated to) elect in writing to continue to furnish
electricity to Tenant and in such event Tenant shall pay Landlord
the Electricity Additional Rent for such electric service as if
such electricity was provided on a submetering basis as in
Section 12.2 above; provided that Tenant's consumption and demand
shall be determined based on an electrical survey made by an
electrical consultant reasonably selected by Landlord and
approved by Tenant, which approval shall not be unreasonable
withheld or delayed (the "Consultant"), which Consultant shall
then compute in the Electricity Additional Rent then payable in
accordance with the other provisions of this Article 12.
<PAGE>
(b) If no survey has yet been performed under this
Section 12.3, Tenant's monthly consumption and demand shall be
deemed to equal its average monthly consumption and demand for
the prior twelve-month period (or since the Commencement Date if
such date occurred within the past year).
(c) The Consultant may resurvey the Premises from time
to time, at Landlord's sole cost, and adjust the Electricity
Additional Rent accordingly.
(d) The determinations made by the Consultant shall be
binding and conclusive on Landlord and Tenant from and after the
delivery of copies of such determinations to Landlord and Tenant,
unless within forty-five (45) days after the delivery of such
copies, Tenant disputes such determination by having an
independent reputable electrical consultant, selected and paid
for by Tenant, consult with Landlord or its consultant as to said
determinations. If they shall both agree upon the same, their
said agreement shall be binding upon the parties, or if the
difference between them in the computation of the Electricity
Additional Rent is five percent (5%) or less of the
determinations made by the Consultant, then the determinations
made by the Consultant shall be binding upon the parties. If
Landlord or the Consultant and Tenant's consultant cannot agree
within the said five percent (5%) of each other, they shall
jointly select a third duly qualified independent, reputable
electrical consultant who shall determine the matter and whose
decision shall be binding upon both parties with the same force
and effect as if a non-appealable judgment has been entered by a
court of competent jurisdiction. If Landlord or the Consultant
and Tenant's consultant cannot agree upon such a third electrical
consultant, the matter shall be submitted to the American
Arbitration Association in the City to be determined in
accordance with its rules and regulations and the decision of the
arbitrators shall be binding upon the parties with the same force
and effect as if a non-appealable judgment had been entered by a
court of competent jurisdiction. Any charges of such third
consultant or of the American Arbitration Association and all
costs and expenses of either shall be borne equally by both
parties. When the amount of the Electricity Additional Rent has
been determined, the parties shall execute an agreement
supplementary hereto to reflect such Electricity Additional Rent
effective from the date determined by such electrical consultant
as aforesaid. Notwithstanding the foregoing, until such final
determination, Tenant shall pay such Additional Rent to Landlord
in accordance with the determinations made by the Consultant.
After such final determinations, the parties shall make
adjustment for any deficiency owed by Tenant or any overage paid
by Tenant.
<PAGE>
12.4. Landlord may adjust the Electricity Additional
Rent from time to time (without additional survey, if applicable)
to reflect changes in the utility's charges to Landlord as
specified in Section 12.1 and in any tax charges as specified in
Section 12.5 and upon such adjustment, Landlord shall provide
Tenant with reasonable supporting documentation demonstrating the
basis for such adjustment.
12.5. If any tax is imposed upon Landlord's receipts
from the sale or resale of electrical energy (whether by rent
inclusion or submetering) or gas or telephone service to Tenant
by any Federal, state or municipal authority, Tenant covenants
and agrees that, where permitted by law, Tenant's pro rata share
of such taxes shall be passed on, and included in the bill of,
and paid by, Tenant to Landlord. All sums due and payable to
Landlord or its contractor, consultant or designee under this
Article 12 shall be payable as additional rent. If all or part
of the amounts payable by Tenant under this Article 12 for
electrical energy (whether by rent inclusion or submetering)
becomes uncollectible or reduced or refundable by virtue of any
law, order or regulation, the parties agree that, at Landlord's
option, in lieu of electrical rent inclusion or submetering, and
in consideration of Tenant's use of the Building's electrical
distribution system and receipt of redistributed electricity and
payment by Landlord of the consultant's fees and other
distribution expenses, the fixed annual rent payable under this
Lease shall be increased by an amount equal to that portion of
the fixed annual rent allocable to the amount which was
uncollectible, reduced or refunded to Tenant.
12.6. Tenant's use of electric current in the Premises
shall not exceed the capacity of any electrical conductors and
equipment in or otherwise serving the Premises. The Tenant shall
be permitted to bring additional power to the Premises at
Tenant's sole cost and expense
<PAGE>
12.7. Landlord shall not be liable to Tenant for any
reduction in service, failure, or defect in the supply or
character of electric current furnished to the Premises where
such reduction in service, failure, or defect is required by Laws
or results from any requirement, act or omission of the public
utility supplying electricity to the Building or for any other
reason whatsoever, excluding any reason attributable to
Landlord's non payment of utility bills. If required by
Consolidated Edison (or any successor utility), Laws or Insurance
Requirements, Landlord may discontinue the delivery of
electricity and/or the use of submeters.
12.8. In the event that pursuant to any of the
provisions of this Article, any initial determinations,
statements or estimates are made by or on behalf of Landlord
(whether such initial determinations, statements or estimates are
subject to dispute or not pursuant to the provisions of this
Article), Tenant shall pay to Landlord the amount(s) set forth on
such initial determinations, statements or estimates, as the case
may be, until subsequent determinations, statements or estimates
are rendered, at which time the parties shall make adjustment for
any deficiency owed by Tenant, or any overage paid by Tenant.
<PAGE>
12.9. At Tenant's option, Landlord shall furnish and
install all replacement lighting tubes, lamps, bulbs and ballasts
required in the Premises, and Tenant shall pay to Landlord or its
designated contractor upon demand the then reasonably established
charges therefor of Landlord or its designated contractor, as the
case may be. Landlord shall not be liable in any way to Tenant
for any failure or defect in the supply or character of electric
energy furnished to the Premises by reason of any requirement,
act or omission of the public utility serving the Building or for
any other reason not attributable to Landlord. Tenant shall pay
for the cost of electricity consumed by any air-conditioning
equipment located in and exclusively serving the Premises as well
as any other air-conditioning equipment furnishing conditioned
air exclusively to the Premises irrespective of whether any such
equipment is located in the Premises or in any other portion of
the Building. The term "air-conditioning equipment" as used
herein shall be deemed to include, without limitation, all
components and auxiliary equipment used in connection with
air-conditioning equipment servicing the Premises.
12.10. Tenant's use of electric energy in the Premises
shall not at any time, in the judgment of Landlord, (a) exceed
the capacity of any of the electrical conductors and equipment in
or otherwise serving the Premises or (b) cause or result in any
impairment or interference with Building systems, annoyance or
inconvenience to other tenants or the overloading of the risers
or feeders serving the Building. In order to prevent the
occurrence of any of the events described in the preceding
sentence (and without limiting the generality of the provisions
of Article 6 hereof) and to avert possible adverse effect upon
the Building's electric service, Tenant shall not, without
Landlord's prior consent in each instance (which shall not be
unreasonably withheld), connect any fixtures, appliances or
equipment to the Building's electric distribution system or make
any alteration or addition to the electric system of the Premises
existing on the Commencement Date, other than normal and
customary office equipment. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall
be provided by Landlord and the cost thereof shall be paid by
Tenant to Landlord on demand. As a condition to granting such
consent, Landlord may require Tenant to agree to an increase in
the fixed annual rent to an amount which will reflect the cost to
Tenant of the additional electric energy made available to Tenant
based upon the estimated additional capacity of such additional
risers or the connected load of such fixtures, appliances or
equipment (measured in respect of risers, at their lowest point
in the Building). The amount of such increase shall be
determined by an electrical consultant selected by Landlord with
Tenant's prior written approval, which shall not be unreasonably
withheld or delayed, and paid by Tenant. Such determination
shall be binding and conclusive upon the parties. Landlord, its
agents and consultants may survey the electrical fixtures,
appliances and equipment in the Premises and Tenant's use of
electric energy therein from time to time after the initial
survey described in Section 12.2, to ascertain whether Tenant is
complying with its obligations under this Section. Each increase
in the fixed annual rent under this Section shall be effective
from the date such additional electric energy is made available
to Tenant.
<PAGE>
12.11. Landlord reserves the right to discontinue
furnishing electrical energy to Tenant in the Premises at any
time upon not less than forty-five (45) days' notice to Tenant.
If Landlord exercises such right, this Lease shall continue in
full force and effect and shall be unaffected thereby, except
that from and after the effective date of such termination
Landlord shall not be obligated to furnish electric energy to
Tenant and the fixed annual rent payable under this Lease shall
be reduced to the amount of fixed annual rent stated in the
Reference Page less the amount allocable to electricity set forth
in the Reference Page. If Landlord so discontinues furnishing
electric energy to Tenant, Tenant shall arrange to obtain
electric energy directly from the public utility company
furnishing electric energy to the Building. Such electric energy
may be furnished to Tenant by means of the then existing building
system feeders, risers and wiring to the extent that the same
are, in Landlord's sole judgment, available, suitable and safe
for such purpose. All meters and additional panel boards,
feeders, risers, wiring and other conductors and equipment
whatsoever which may be required to obtain electric energy
directly from such public utility company whether currently
available for Tenant's use or requiring Landlord's installation
shall be furnished and installed by Landlord at Landlord's sole
cost and expense; provided, however, that Tenant shall be
permitted, at no additional cost to Tenant, to use the existing
feeders, risers, wiring and other conductors and equipment;
provided, further, Landlord's obligation under this clause shall
be limited to the installation in the Premises as of the date of
this Lease and shall not include any supplementary electrical
service brought to the Premises by or on behalf of Tenant. In
the event Landlord elects to discontinue furnishing electricity
and is not required by Law to discontinue furnishing the
electricity then Landlord shall pay for the cost of Tenant
obtaining electricity directly from the electrical utility, and
in the event Landlord is required by law or by the electrical
utility to discontinue furnishing electrical service, then Tenant
shall pay for all costs associated in connection with Tenant's
purchase of electricity directly from the electrical utility.
<PAGE>
12.12 In the event Tenant shall dispute any findings
under this Article of the consultant designated by Landlord,
Tenant may, within forty-five (45) days of receiving notice of
such findings, designate by notice to Landlord an independent
electrical consultant to make, at Tenant's sole cost and expense,
another determination of the increased average monthly electrical
consumption or the value to Tenant of the potential additional
energy to be made available to Tenant, as the case may be. If
the electrical consultant selected by Tenant shall determine that
such increased consumption or value, as the case may be, of such
electrical energy is less than as determined by Landlord's
consultant and the two are unable to adjust such difference
within thirty (30) days after the determination made by Tenant's
consultant is delivered to landlord, the dispute shall be
resolved by arbitration in accordance with the rules of the
American Arbitration Association. The arbitration shall take
place in New York City, New York. Pending a final determination
pursuant to such arbitration, Tenant shall pay to Landlord for
such electrical energy based on the determination of Landlord's
consultants; and if it is determined that Tenant has overpaid,
Landlord shall reimburse Tenant for any overpayment at the
conclusion of such arbitration. In any such arbitration, the
third arbitrator to be appointed shall be an electrical engineer
having at least five years experience in similar matters in New
York City, New York. In no event shall the fixed annual rent or
any portion thereof attributable to the furnishing of electrical
energy ever be reduced by operation of this Section 12.12.
ARTICLE 13 ADJACENT EXCAVATION -- SHORING
If an excavation or other substructure work shall be made
upon land adjacent to the Premises, or shall be authorized to be
made, Tenant shall afford to the person causing or authorized to
cause such excavation, license to enter upon the Premises after
notice to Tenant, for the purpose of doing such work as shall be
necessary to preserve the wall of or the Building of which the
Premises form a part from injury or damage and to support the
same by proper foundations without any claim for damages or
indemnity against Landlord, or diminution or abatement of rent.
Landlord shall use reasonable efforts to minimize interference
with Tenant's business operations during any entry into the
Premises.
<PAGE>
ARTICLE 14 CONDEMNATION
14.1. In the event that the whole of the Premises
lawfully shall be condemned or taken in any manner for any public
or quasi-public use, this Lease and the Term and estate hereby
granted shall cease and terminate as of the date of vesting of
title, as if that were the Expiration Date, and the fixed annual
rent and the additional rent payable pursuant to Articles 3 and 4
of this Lease shall be apportioned as of such date.
14.2. In the event that only a part of the Premises
shall be so condemned or taken, then, effective as of the date of
vesting of title, the fixed annual rent and the additional rent
payable pursuant to Articles 3 and 4 hereunder shall be abated in
an amount thereof apportioned according to the area of the
Premises so condemned or taken. In the event that only a part of
the Building or the Land shall be so condemned or taken, then (a)
Landlord (whether or not the Premises be affected) may, at
Landlord's option, terminate this Lease and the Term and estate
hereby granted as of the date of such vesting of title by
notifying Tenant in writing of such termination within 60 days
following the date on which Landlord shall have received notice
of vesting of title, or (b) if such condemnation or taking shall
be of a substantial part of the Premises or of a substantial part
of the means of access thereto, Tenant, at Tenant's option, by
delivery of notice in writing to Landlord within 30 days
following the date on which Tenant shall have received notice of
vesting of title, may terminate this Lease and the Term and
estate hereby granted as of the date of vesting of title, or (c)
if neither Landlord nor Tenant elects to terminate this Lease, as
aforesaid, this Lease shall be and shall remain unaffected by
such condemnation or taking, except that the fixed annual rent
and the additional rent payable pursuant to Articles 3 and 4
shall be abated to the extent hereinbefore provided in this
Article 14. In the event that only a part of the Premises shall
be so condemned or taken and this Lease and the Term and estate
hereby granted with respect to the remaining portion of the
Premises are not terminated as hereinbefore provided, Landlord,
with reasonable diligence and at its expense, will restore the
remaining portion of the Premises as nearly as practicable to the
same condition as it was in prior to such condemnation or taking.
14.3. In the event of any condemnation or taking
hereinbefore mentioned of all or a part of the Building, Landlord
shall be entitled to receive the entire award in the condemnation
proceeding, including any award made for the value of the estate
vested by this Lease in Tenant, and Tenant hereby expressly
assigns to Landlord any and all right, title and interest of
Tenant now or hereafter arising in or to any such award or any
part thereof, and Tenant shall be entitled to receive no part of
such award. Tenant shall be entitled to make a separate claim
for the unamortized value of its trade fixtures actually taken
and for moving expenses so long as such claim will not reduce the
award payable to Landlord.
<PAGE>
14.4. If the temporary use or occupancy of all or any
part of the Premises shall be taken by condemnation or in any
other manner for any public or quasi-public use or purpose during
the Term of this Lease, Tenant shall be entitled, except as
hereinafter set forth, to receive that portion of the award or
payment for such taking which represents compensation for the use
and occupancy of the Premises, for the taking of Tenant's
property and for moving expenses, and Landlord shall be entitled
to receive that portion which represents reimbursement for the
cost of restoration of the Premises. This Lease shall be and
remain unaffected by such taking and Tenant shall continue
responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to
pay in full the fixed annual rent and additional rent due. If
the period of temporary use or occupancy shall extend beyond the
Expiration Date, that part of the award which represents
compensation for the use and occupancy of the Premises (or a part
thereof) shall be divided between Landlord and Tenant so that
Tenant shall receive so much thereof as represents the period up
to and including the Expiration Date. All monies paid as, or as
part of, an award for temporary use and occupancy for a period
beyond the date to which the fixed annual rent and additional
rent have been paid shall be received, held and applied by
Landlord as a trust fund for payment of the fixed annual rent and
additional rent becoming due hereunder.
14.5. In the event of any taking of less than the whole
of the Building that does not result in a termination of this
Lease, or in the event of a taking for a temporary use or
occupancy of all or any part of the Premises that does not result
in a termination of this Lease, Landlord, at its expense, and
whether or not any award or awards shall be sufficient for the
purpose, shall proceed with reasonable diligence to repair, alter
and restore the remaining parts of the Building and the Premises
to substantially their former condition to the extent that the
same may be feasible and so as to constitute a tenantable
Building and Premises.
14.6. In the event any part of the Premises be taken to
effect compliance with any law or requirement of public authority
other than in the manner hereinabove provided in this Article 14,
then, (a) if such compliance is the obligation of Tenant under
this Lease, Tenant shall not be entitled to any diminution or
abatement of rent or other compensation from Landlord therefor,
but (b) if such compliance is the obligation of Landlord under
this Lease, the fixed annual rent payable under Article 1 shall
be reduced and additional rent payable under Articles 3 and 4
shall be adjusted in the same manner as is provided in Section
14.1 according to the reduction in rentable area of the Premises
resulting from such taking.
<PAGE>
ARTICLE 15 ACCESS TO PREMISES; CHANGES
15.1. Tenant shall permit Landlord (a) to erect, use and
maintain pipes, ducts and conduits in and through the Premises,
provided the same are installed adjacent to or boxed in a manner
consistent with Tenant's decor or concealed behind walls and
ceilings of the Premises or in such manner as shall not
materially adversely impair Tenant's use of the Premises or
decrease the square footage in the Premises, and (b) to use any
air-conditioning rooms, telephone equipment rooms, heating,
ventilating, air-conditioning, electrical and mechanical
facilities and service closets (collectively, the "Building
Equipment") in the Premises so long as such entry by Landlord
does not unreasonably interfere with the use of the Premises by
Tenant and does not cause Tenant to incur any liability, cost or
result in a reduction of the size of the Premises. To the extent
practicable, Landlord shall install such pipes, ducts and
conduits by methods and at locations that will not materially
interfere with or impair Tenant's layout or use of the Premises.
Landlord or its agents or designees shall have the right to enter
the Premises, at reasonable times during Business Hours on
Business Days on notice to Tenant (other than in the event of an
emergency), to examine such pipes, ducts, conduits and Building
Equipment or to make any repairs or alterations that Landlord may
deem necessary or reasonably desirable for the Building or that
Landlord shall be required to or shall have the right to make by
the provisions of this Lease or any other lease in the Building.
Landlord shall be allowed to take all material into and upon the
Premises that may be required for the repairs or alterations
above mentioned as the same is required for such purpose, without
the same constituting an eviction of Tenant in whole or in part,
and the rent reserved shall in no way abate while said repairs or
alterations are being made by reason of loss or interruption of
the business of Tenant because of the prosecution of any such
work; provided, however, that Landlord shall not store any such
materials in the Premises. Landlord shall exercise reasonable
diligence to minimize interference with Tenant's business
operations at the Premises, but nothing contained herein shall be
deemed to require Landlord to perform the same on an overtime or
premium pay basis.
<PAGE>
15.2. Landlord reserves the right, without the same
constituting an eviction and without incurring liability to
Tenant therefor, to change the arrangement and/or location of
public entrances, passageways, doors, doorways, corridors,
elevators, stairways, toilets (but the toilets shall remain on
the floor of the Building where the Premises are located) and
other public parts of the Building; provided, however, that
Tenant shall continue to have access to the Building.
15.3. Landlord may, at any time on reasonable prior
notice during the last six (6) months of the term of this Lease,
exhibit the Premises to prospective tenants; provided, however,
that in the event of a default by Tenant hereunder beyond
applicable notice and cure periods and during the continuance of
such default, Landlord may exhibit the Premises to prospective
tenants. Landlord shall also have the right, upon reasonable
prior notice to Tenant, to enter the Premises for the purpose of
exhibiting them to prospective purchasers or lessees of the
entire Building or to prospective mortgagees or to prospective
assignees of any such mortgages or to the holder of any mortgage
on the Landlord's interest in the property, its agents or
designees.
15.4. If Tenant shall not be present personally to open
and to permit an entry into the Premises at any time when for any
reason an entry therein urgently shall be necessary in case of
fire or other emergency, Landlord or Landlord's agents may enter
the same forcibly without rendering Landlord or such agents
liable therefor (provided during such entry Landlord or
Landlord's agents shall accord reasonable care to Tenant's
property) and without in any manner affecting the obligations and
covenants of this Lease. If during the last month of the Term
Tenant shall have removed all or substantially all of Tenant's
property therefrom, Landlord immediately may enter, alter,
renovate or redecorate the Premises without limitation or
abatement of rent and without incurring liability to Tenant for
any compensation and such act shall have no effect on this Lease
or Tenant's obligations hereunder.
<PAGE>
15.5. Tenant shall have access to the Premises twenty-
four (24) hours per day, seven (7) days per week, subject to
emergencies.
ARTICLE 16 CONDITIONS OF LIMITATION
16.1. This Lease and the Term and estate hereby granted
are subject to the limitation that whenever Tenant shall be
unable to pay its debts generally as they become due, or shall
make an assignment of the property of Tenant for the benefit of
creditors, or shall consent to, or acquiesce in, the appointment
of a liquidator, receiver, trustee, or other custodian of itself
or the whole or any part of its properties or assets, or shall
commence a voluntary case for relief under the United States
Bankruptcy Code or file a petition or take advantage of any
bankruptcy or insolvency act or applicable law of like import, or
whenever an involuntary case under the United States Bankruptcy
Code shall be commenced against Tenant or if a petition shall be
filed against it seeking similar relief under any bankruptcy or
insolvency or other applicable law of like import, or whenever a
receiver, liquidator, trustee, or other custodian of Tenant or of
or for substantially all of the property of Tenant shall be
appointed without Tenant's consent or acquiescence, then, (a) at
any time after receipt of notice of the occurrence of any such
event, or (b) if such event occurs without the acquiescence of
Tenant, at any time after the event continues for 30 days,
Landlord may give Tenant a notice of intention to end the Term of
this Lease at the expiration of ten (10) days from the date of
service of such notice of intention, and upon the expiration of
said ten (10) day period, this Lease and the Term and estate
hereby granted, whether or not the Term shall theretofore have
commenced, shall terminate with the same effect as if that day
were the Expiration Date, but Tenant shall remain liable for
damages as provided in Article 18.
<PAGE>
16.2. This Lease and the Term and estate hereby granted
are subject to further limitation as follows:
(a whenever Tenant shall default in the payment of
any installment of fixed annual rent on any day that the same
becomes due, and such default shall continue uncured for five (5)
days after notice from Landlord or whenever Tenant shall default
in the payment of any installment of any item of additional rent
on any day that the same becomes due, and such default shall
continue uncured for ten (10) days after notice from Landlord, or
(b whenever Tenant shall do or permit anything to be
done, whether by action or inaction, contrary to any of Tenant's
obligations hereunder, and if such situation shall continue and
shall not be remedied by Tenant within 30 days (within fifteen
(15) days, in the case of Tenant's failure (A) to furnish any
certificate of insurance required under Article 6 or 9 or (B) to
furnish any instrument required under Article 25 or 26) after
Landlord shall have given to Tenant a notice specifying the same,
or, in the case of a happening or default that cannot with due
diligence be cured within a period of 30 days and the
continuation of which for the period required for cure will not
subject Landlord to the risk of criminal liability (as more
particularly described in Article 8 hereof) or termination of any
superior lease or foreclosure of any superior mortgage, if Tenant
shall not, (i) within said 30 day period advise Landlord of
Tenant's intention duly to institute all steps necessary to
remedy such situation, (ii) duly institute within said 30 day
period, and thereafter diligently and continuously prosecute to
completion all steps necessary to remedy the same and (iii)
complete such remedy within such time after the date of the
giving of said notice by Landlord as shall reasonably be
necessary, or
(c whenever any event shall occur or any contingency
shall arise whereby this Lease or the estate hereby granted or
the unexpired balance of the Term hereof, by operation of law or
otherwise, would devolve upon or pass to any person, firm or
corporation other than Tenant, except as expressly permitted by
Article 11, or
<PAGE>
(d whenever Tenant shall abandon or vacate the
Premises, or
(e whenever in case any other lease held by Tenant
(or any person which, directly or indirectly, controls, is
controlled by, or is under common control with, Tenant) from
Landlord shall expire and terminate (whether or not the Term
thereof shall then have commenced) as a result of the default of
Tenant thereunder or of the occurrence of an event as therein
provided (other than by expiration of the fixed term thereof or
pursuant to a cancellation or termination option therein
contained), or
(f whenever Tenant shall default in the due keeping,
observing or performance of any covenant, agreement, provision or
condition of Article 5 hereof on the part of Tenant to be kept,
observed or performed and such default shall continue and shall
not be remedied by Tenant within three (3) Business Days after
Landlord shall have given to Tenant a notice specifying the same,
or
(g whenever the Premises are materially damaged by
reason of negligence or carelessness of Tenant, its agents,
employees or invitees,
then in any of said cases set forth in the foregoing subsections
(a), (b), (c), (d), (e), (f) and (g), Landlord may give to Tenant
a notice of intention to end the Term of this Lease at the
expiration of ten (10) days from the date of the service of such
notice of intention, and upon the expiration of said ten (10)
days this Lease and the Term and estate hereby granted, whether
or not the Term shall theretofore have commenced, shall terminate
with the same effect as if that day were the Expiration Date, but
Tenant shall remain liable for damages as provided in Article 18.
16.3. In the event Tenant shall default in the
performance of any term of this Lease to be performed by Tenant
(other than the payment of fixed annual rent) more than three (3)
times in any period of six months or, with respect to the payment
of fixed annual rent, more than three (3) times in any period of
12 months, then, notwithstanding that such defaults shall have
each been cured within the applicable period, if any, as provided
above, any further similar default shall, after notice of the
same, be deemed to be deliberate and Landlord thereafter may
serve the said fifteen (15) days' notice of termination upon
Tenant without affording to Tenant an opportunity to cure such
default.
<PAGE>
ARTICLE 17 RE-ENTRY BY LANDLORD; INJUNCTION
17.1. If Tenant shall default in the payment of any
installment of fixed annual rent, on any date that the same
becomes due, and such default shall continue uncured for five
days, or if Tenant shall default in the payment of any additional
rent, on any date that the same becomes due, and such default
shall continue uncured for ten days, or if this Lease shall
expire as in Article 16 provided, Landlord or Landlord's agents
and employees immediately or at any time thereafter may re-enter
the Premises, or any part thereof, either by summary dispossess
proceedings or by any suitable action or proceeding at law,
without being liable to indictment, prosecution or damages
therefrom, to the end that Landlord may have, hold and enjoy the
Premises again as and of its first estate and interest therein.
The word re-enter, as herein used, is not restricted to its
technical legal meaning. In the event of any termination of this
Lease under the provisions of Article 16 or if Landlord shall
re-enter the Premises under the provisions of this Article 17 or
in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or
any provision of law by reason of default hereunder on the part
of Tenant, (a) Tenant thereupon shall pay to Landlord the fixed
annual rent and additional rent payable by Tenant to Landlord up
to the time of such termination of this Lease, or of such
recovery of possession of the Premises by Landlord, as the case
may be, (b) Tenant shall pay to Landlord all expenses, including
court costs and reasonable attorneys' fees and disbursements,
incurred by Landlord in recovering possession of the Premises and
all costs and charges for the care of the Premises while vacant
and (c) Tenant also shall pay to Landlord damages as provided in
Article 18.
17.2. In the event of a breach or threatened breach by
Tenant of any of its obligations under this Lease, Landlord also
shall have the right of injunction. The special remedies to
which Landlord may resort hereunder are cumulative and are not
intended to be exclusive of any other remedies or means of
redress to which Landlord lawfully may be entitled at any time
and Landlord may invoke any remedy allowed at law or in equity as
if specific remedies were not provided for herein.
<PAGE>
17.3. If this Lease shall terminate under the provisions
of Article 16, or if Landlord shall re-enter the Premises under
the provisions of this Article 17, or in the event of the
termination of this Lease, or of re-entry, by or under any
summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant,
Landlord shall be entitled to retain all moneys, if any, paid by
Tenant to Landlord, whether as advance rent, security or
otherwise, but such moneys shall be credited by Landlord against
any fixed annual rent or additional rent due from Tenant at the
time of such termination or re-entry or, at Landlord's option
against any damages payable by Tenant under Article 18 or
pursuant to law.
17.4. Tenant expressly waives any and all rights of
redemption granted by or under any present or future laws in the
event of Tenant being evicted or dispossessed for any cause, or
in the event of Landlord obtaining possession of the Premises, by
reason of the violation by Tenant of any of the covenants and
conditions of this Lease or otherwise.
ARTICLE 18 DAMAGES
18.1. If this Lease is terminated under the provisions
of Article 16, or if Landlord shall re-enter the Premises under
the provisions of Article 17, or in the event of the termination
of this Lease, or of re-entry, by or under any summary dispossess
or other proceeding or action or any provision of law by reason
of default hereunder on the part of Tenant, Tenant shall pay to
Landlord as damages, at the election of Landlord, either
<PAGE>
(a a sum which at the time of such termination of
this Lease or at the time of any such re-entry by Landlord, as
the case may be, represents the then value of the excess, if any,
of
(i) the aggregate of the fixed annual rent and
the additional rent payable hereunder that would have been
payable by Tenant (conclusively presuming the additional rent to
be the same as was payable for the year immediately preceding
such termination except that additional rent on account of
increases in Taxes and the Operating Expenses shall be presumed
to increase at the average of the rates of increase thereof
previously experienced by Landlord during the period (not to
exceed 3 years) prior to such termination) for the period
commencing with such earlier termination of this Lease or the
date of any such re-entry, as the case may be, and ending with
the Expiration Date, had this Lease not so terminated or had
Landlord not so re-entered the Premises, over
(ii) the aggregate rental value of the Premises
for the same period; or
(b sums equal to the aggregate of the fixed annual
rent and the additional rent (as above presumed) payable
hereunder that would have been payable by Tenant had this Lease
not so terminated, or had Landlord not so re-entered the
Premises, payable upon the due dates therefor specified herein
following such termination or such re-entry and until the
Expiration Date, provided, however, that if Landlord shall re-let
the Premises during said period, Landlord shall credit Tenant
with the net rents received by Landlord from such re-letting,
such net rents to be determined by first deducting from the gross
rents as and when received by Landlord from such reletting, the
expenses incurred or paid by Landlord in terminating this Lease
or in re-entering the Premises and in securing possession
thereof, as well as the expenses of reletting, including altering
and preparing the Premises for new tenants, brokers' commissions,
reasonable attorneys' fees and disbursements, and all other
expenses properly chargeable against the Premises and the rental
thereof; it being understood that any such re-letting may be for
a period shorter or longer than the remaining Term of this Lease
and that Landlord may grant concessions and free rent; but in no
event shall Tenant be entitled to receive any excess of such net
rents over the sums payable by Tenant to Landlord hereunder, or
shall Tenant be entitled in any suit for the collection of
damages pursuant to this subsection to a credit in respect of any
net rents from a re-letting, except to the extent that such net
rents actually are received by Landlord. If the Premises or any
part thereof should be re-let in combination with other space,
then proper apportionment on a square foot basis shall be made of
the rent received from such re-letting and of the expenses of
re-letting. Landlord in no event shall be liable in any way
whatsoever for failure to re-let the Premises nor shall such
failure affect Tenant's liability for damages.
<PAGE>
18.2. If the Premises or any part thereof shall be
re-let by Landlord for the unexpired portion of the Term of this
Lease, or any part thereof, before presentation of proof of such
damages to any court, commission or tribunal, the amount of rent
reserved upon such re-letting, prima facie, shall be the fair and
reasonable rental value for the Premises, or part thereof, so
re-let during the Term of the re-letting.
18.3. Suit or suits for the recovery of such damages, or
any installments thereof, may be brought by Landlord from time to
time at its election, and nothing contained herein shall be
deemed to require Landlord to postpone suit until the date when
the Term of this Lease would have expired if it had not been so
terminated under the provisions of Article 16, or under any
provision of law, or had Landlord not re-entered the Premises.
Nothing herein contained shall be construed to limit or to
preclude recovery by Landlord against Tenant of any sums or
damages to which, in addition to the damages particularly
provided above, Landlord lawfully may be entitled by reason of
any default hereunder on the part of Tenant. Nothing herein
contained shall be construed to limit or prejudice the right of
Landlord to prove for and obtain as liquidated damages by reason
of the termination of this Lease or re-entry of the Premises for
the default of Tenant under this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the
time when such damages are to be proved whether or not such
amount be greater than, equal to, or less than any of the sums
referred to in Section 18.1.
ARTICLE 19 LANDLORD'S RIGHT TO PERFORM TENANT'S OBLIGATIONS
If Tenant shall default in the observance or performance of
any term or covenant on Tenant's part to be observed or performed
under or by virtue of any of the terms or provisions in any
Article of this Lease, (a) Landlord may, but shall not be
obligated to, remedy such default for the account of Tenant,
immediately and without notice in case of emergency, or in any
other case only provided that Tenant shall fail to remedy such
default with all reasonable dispatch after Landlord shall have
notified Tenant in writing of such default and afforded Tenant an
opportunity to cure the default in question, the applicable grace
period for curing such default shall have expired; and (b) if
Landlord makes any expenditures or incurs any obligations for the
payment of money in connection with such default (including, but
not limited to, reasonable attorneys' fees in instituting,
prosecuting or defending any action or proceeding), such sums
paid or obligations incurred shall be deemed to be additional
rent hereunder and shall be paid by Tenant to Landlord upon
rendition of a bill to Tenant therefor together with an amount
equal to ten percent (10%) of Landlord's expenditure (to
reimburse Landlord for its administrative expenses) upon demand,
as additional rent.
<PAGE>
ARTICLE 20 QUIET ENJOYMENT
Landlord covenants and agrees that, subject to the terms,
obligations and provisions of this Lease, if, and so long as,
Tenant keeps and performs each and every covenant, agreement,
term, provision and condition herein contained on the part or on
behalf of Tenant to be kept or performed, then Tenant's rights
under this Lease shall not be cut off or ended before the
expiration of the Term of this Lease.
ARTICLE 21 SERVICES AND EQUIPMENT
21.1. So long as Tenant is not in default under any of
the covenants of this Lease beyond the expiration of any
applicable notice and cure periods, Landlord shall:
(a) provide necessary elevator facilities on Business
Days during Business Hours and shall have at least one elevator
subject to call at all other times. At Landlord's option, the
elevators shall be operated by automatic control or by manual
control, or by a combination of both of such methods.
(b) maintain and keep in good order and repair any
components of the heating systems located outside of the Premises
that serve the portions of such systems located within the
Premises. Landlord shall cause the portions of the heating,
ventilating and air conditioning systems to be in good working
order as of the date of this Lease. Landlord shall provide, on
Business Days during Business Hours, heat from October 15 of each
year and thereafter when seasonably required and in accordance
with applicable laws. Landlord shall provide, on Business Days
during the hours of 8:00 a.m. to 6:00 p.m., air conditioning from
May 15 of each year and thereafter when seasonably required.
Landlord shall provide that the air conditioning in the Premises
is in good working order as of the Commencement Date of this
Lease. Landlord shall have no responsibility or liability for
the ventilating conditions and/or temperature of the Premises
during the hours or days Landlord is not required to furnish heat
or air conditioning pursuant to this subsection (b). Tenant
shall cause all of the windows in the Premises to be kept closed
and shall keep entirely unobstructed all the vents, intakes,
outlets and grilles whenever the air-conditioning or heating
system is in operation and shall comply with and observe all
regulations and requirements prescribed by Landlord for the
proper functioning of the heating, ventilating and
air-conditioning systems. Tenant shall be solely responsible for
all maintenance costs of the air conditioning system in the
Premises; provided, however, that Landlord shall be responsible
for the major components of the air conditioning equipment.
Tenant shall enter into a service contract for the maintenance
and repair of the air-conditioning equipment serving the Premises
at Tenant's sole cost and expense, such contract to be in form in
substance reasonably acceptable to Landlord. Landlord shall
furnish and install new filters in the air conditioning equipment
at the commencement of the term of this Lease. Nothing contained
herein shall be deemed to require Landlord to furnish at
Landlord's expense such electric energy as is required to operate
the air-conditioning and ventilating systems serving the
Premises. Subject to the provisions of Article 12 hereof all
such electric energy shall be furnished by Landlord to Tenant at
Tenant's cost and expense. If Tenant shall require air
conditioning at times when Landlord is not required to furnish
same, Tenant shall give Landlord at least 24 hours prior notice
of such requirement and, if same is furnished by Landlord, Tenant
shall pay on demand Landlord's charges in the amount of Seventy-
Five Dollars ($75.00) per hour as additional rent, which overtime
charge may be increased by Landlord if Landlord's costs increase.
The Tenant shall be permitted to install supplemental air
conditioning in the Premises at Tenant's sole cost and expense,
subject to the alterations requirements set forth in this Lease.
<PAGE>
(c) provide cleaning and janitorial services, on
Business Days in accordance with the Cleaning Specifications
annexed to this Lease as Schedule B. Landlord shall not be
required to clean any portions of the Premises used for the
preparation, serving or consumption of food or beverages,
training rooms, data processing or reproducing operations, all of
which shall be cleaned by Tenant. Tenant shall pay directly to
the cleaning contractor for the Building the cleaning
contractor's charges for (i) extra cleaning work in the Premises
required because of (A) misuse or neglect on the part of Tenant
or its sublessees or its or their employees or visitors, (B) the
use of portions of the Premises for special purposes requiring
greater or more difficult cleaning work than office areas, (C)
interior glass partitions or unusual quantity of interior glass
surfaces and (D) non-Building Standard materials or finishes
installed by Tenant or at its request, and (ii) removal from the
Premises and the Building of any refuse and rubbish of Tenant in
excess of that ordinarily accumulated in business office
occupancy (with only incidental computer operations) or at times
other than Landlord's standard cleaning times, and (iii) the use
of the Premises by Tenant other than during Business Hours on
Business Days. Landlord, its cleaning contractor and their
employees shall have access to the Premises after 5:30 p.m. and
before 8:00 a.m. and shall have the right to use, without charge
therefor, all light, power and water in the Premises reasonably
required to clean the Premises as required under this Section
21.1(c). If Tenant has leased an entire floor or floors, it
shall reimburse Landlord, promptly after being billed therefor,
for the cost of filling toilet tissues, soap dispensers, towel
dispensers, sanitary napkin vending dispensers, and plastic waste
container liners. Tenant shall pay to Landlord as additional
rent within ten days after demand, Tenant's Proportionate Share
of any Federal, state or municipal sales tax now or hereafter
required to be paid by Landlord allocable to the furnishing of
cleaning services or cleaning supplies to the Building above the
standard cleaning services provided for in this Lease.
<PAGE>
(d) furnish hot and cold water for lavatory, pantry
and drinking and office cleaning purposes. If Tenant requires,
uses or consumes water for any other purposes or in unusual
quantities (as reasonably determined by Landlord in its sole and
absolute discretion), Landlord may install, after notice to
Tenant, a meter or meters or other means to measure Tenant's
water consumption, and Tenant shall reimburse Landlord for the
cost of the meter or meters and the installation thereof, and
shall pay for the maintenance of said meter equipment and/or
shall pay Landlord's costs of other means of measuring such water
consumption by Tenant. Tenant shall reimburse Landlord for the
cost of all water consumed, including sewer rents, as measured by
said meter or meters or as otherwise measured, and the cost to
heat such water.
21.2. Landlord reserves the right, without any liability
whatsoever and without abatement of fixed annual rent or
additional rent, to stop the heating, air-conditioning, elevator,
plumbing, sanitary, electric and other systems when necessary by
reason of accident or emergency or for repairs, alterations,
replacements or improvements, provided that except in case of
emergency, Landlord will notify Tenant in advance, if possible,
of any such stoppage and, if ascertainable, its estimated
duration, and will proceed diligently with the work necessary to
resume such service as promptly as possible and in a manner so as
to minimize interference with Tenant's use and enjoyment of the
Premises. Landlord shall not be liable in any way to Tenant for
any failure of the heating, air-conditioning, elevator, plumbing,
sanitary, electric and other systems by reason of any failure or
defect in the supply or character of electric energy furnished to
the Building or the Premises by the public utility serving the
Building.
<PAGE>
21.3. Only Landlord or any one or more persons, firms or
corporations authorized in writing by Landlord will be permitted
to furnish laundry, linen towels, drinking water, ice, food or
beverages and other similar supplies and services to tenants and
licensees in the Building. Landlord may fix, in its own absolute
discretion, at any time and from time to time, the hours during
which and the regulations under which such supplies and services
are to be furnished. Landlord expressly reserves the right to
act as or to designate, at any time and from time to time, an
exclusive supplier of all or any one or more of the said supplies
and services, provided that the quality thereof and the charges
therefor are reasonably comparable to that of other suppliers.
Landlord expressly reserves the right to exclude from the
Building any person, firm or corporation attempting to furnish
any of said supplies or services but not so designated by
Landlord. It is understood, however, that Tenant or regular
office employees of Tenant who are not employed by any supplier
of such food or beverages or by any person, firm or corporation
engaged in the business of purveying such food or beverages,
personally may bring food or beverages into the Building for
consumption within the Premises by employees of Tenant, but not
for resale to or for consumption by any other tenant.
21.4. Tenant shall employ any office maintenance
contractor that Landlord may designate from time to time for all
waxing, polishing, lamp replacement, cleaning (other than those
cleaning services Landlord is obligated to furnish) and the
maintenance work in the Premises, provided that the quality
thereof and the charges therefor are reasonably comparable to
that of other contractors. Tenant shall not employ any other
contractor without Landlord's prior written consent, which shall
not be unreasonably withheld.
21.5. Landlord, at Tenant's request, shall maintain
listings on the Building directory of the names of Tenant,
permitted assignees or subtenants, and the names of any of
Tenant's officers and employees, provided, however, that the
aggregate number of names so listed shall not exceed Tenant's
Proportionate Share of the space in the Building directory. The
reasonable charge of Landlord for any changes in such listings
requested by Tenant shall be paid by Tenant to Landlord on
demand.
<PAGE>
21.6. Landlord shall not be required to furnish any
other services, except as otherwise provided in this Lease.
ARTICLE 22 HAZARDOUS MATERIALS
22.1. Tenant shall not, without the prior written
consent of Landlord, cause or permit, knowingly any Hazardous
Material (hereinafter defined) to be brought or remain upon, kept
or used in or about the Premises or the Building. As used in
this Lease, "Hazardous Material(s)" shall mean any hazardous,
toxic or radioactive substance, material, matter or waste which
is or becomes regulated by any federal, state or local law, rule
regulation, code, ordinance or any other governmental restriction
or requirement. However, "Hazardous Materials" shall not include
substances which are used in the ordinary course of a business
similar to Tenant's as permitted pursuant to Article 5 of this
Lease, provided, however, that such substances are used, handled,
transported or stored in strict compliance with any applicable
Legal Requirement. If such substances are not so used, handled,
transported or stored then they shall be deemed "Hazardous
Materials" for purposes of this Lease. Should Landlord consent
in writing to Tenant bringing, using or storing any Hazardous
Material in or upon the Premises or the Building, Tenant shall
strictly obey and adhere to any and all Legal Requirements which
in any way regulates, governs or impacts Tenant's possession,
use, storage or disposal of said Hazardous Material. Upon
Landlord's written request, prior to the Commencement Date of
this Lease, and on January 1 of each year thereafter, Tenant
shall disclose in writing to Landlord the names and amounts of
all Hazardous Material which Tenant is then currently or is
intending to bring, use, or store in or upon the Premises or the
Building, or which Tenant has in the past brought, used or stored
in or upon the Premises or the Building.
22.2. In addition to, and in no way limiting Tenant's
duties and obligations as set forth in this Lease, should Tenant
breach any of its duties and obligations as set forth in this
Lease or if the presence of any Hazardous Material in or upon the
Premises or the Building, that Tenant causes or permits knowingly
to brought upon, used, remained upon or kept at the Premises
(excluding those Hazardous Materials that were present in the
Premises prior to Tenant's occupancy and those Hazardous
Materials brought upon the Premises by Landlord after Tenant's
occupancy) results in contamination of the Premises, the
Building, any land or the Building, the atmosphere, or any water
or waterway (including groundwater), or if contamination of the
Premises, or the Building by any Hazardous Material otherwise
occurs for which Tenant is otherwise legally liable to Landlord
for damage resulting therefrom, Tenant shall indemnify, save
harmless, and, at Landlord's option and with attorneys approved
in writing by Landlord, defend Landlord and its agents,
employees, partners, officers, directors, and mortgagees, if any,
from any and all claims, demands, damages, expenses, fees, costs,
fines, penalties, suits, proceedings, actions, causes of action,
and losses of any and every kind and nature, including, without
limitation, diminution in value of the Premises or the Building,
damages for the loss or restriction on use of the rentable or
usable space or of any amenity of the Premises or the Building,
damages arising from any adverse impact on marketing space in the
Building, and sums paid in settlement of claims and for
attorney's fees, consultant fees and expert fees, which may arise
during or after the Lease Term or any extension thereof as a
result of such contamination. This includes, without limitation,
costs and expenses incurred in connection with any investigation
of site conditions or any cleanup, remedial, removal or
<PAGE>
restoration work required by any federal, state or local
governmental agency or political subdivision because of Hazardous
Material present on or about the Premises (excluding those
Hazardous Materials that were present in the Premises prior to
Tenant's occupancy and those Hazardous Materials brought upon the
Premises by Landlord after Tenant's occupancy, that Tenant causes
or permits knowingly to be brought upon, used, remained upon or
kept at the Premises) or because of the presence of Hazardous
Material anywhere else which came or otherwise emanated from
Tenant or the Premises (excluding those Hazardous Materials that
were present in the Premises prior to Tenant's occupancy and
those Hazardous Materials brought upon the Premises by Landlord
after Tenant's occupancy, that Tenant causes or permits knowingly
to be brought upon, used, remained upon or kept at the Premises).
Without limiting the foregoing, if the presence of any Hazardous
Material on or about the Premises, or the Building caused or
permitted by Tenant results in any contamination of the Premises
or the Building, Tenant shall, at its sole expense, promptly take
all actions as are necessary to return the Premises and the
Building to the condition existing prior to the introduction or
any such Hazardous Material to the Premises and the Building;
provided, however, that Landlord's approval of such actions shall
first be obtained.
ARTICLE 23 INVALIDITY OF ANY PROVISION
If any term, covenant, condition or provision of this Lease
or the application thereof to any circumstance or to any person,
firm or corporation shall be invalid or unenforceable to any
extent, the remaining terms, covenants, conditions and provisions
of this Lease or the application thereof to any circumstances or
to any person, firm or corporation other than those as to which
any term, covenant, condition or provision is held invalid or
unenforceable, shall not be affected thereby and each remaining
term, covenant, condition and provision of this Lease shall be
valid and shall be enforceable to the fullest extent permitted by
law.
ARTICLE 24 BROKERAGE
Tenant covenants, represents and warrants that Tenant has
had no dealings or negotiations with any broker or agent other
than the Broker set forth in the Reference Page in connection
with the consummation of this Lease, and Tenant covenants and
agrees to pay, hold harmless and indemnify Landlord from and
against any and all cost, expense (including reasonable
attorneys' fees) and liability in connection with any
compensation, commissions or charges claimed by any broker or
agent, other than the Broker claiming to have dealt with Tenant,
with respect to this Lease or the negotiation thereof. Landlord
agrees to pay the Broker a commission in accordance with the
terms of a separate agreement between Landlord and Broker. The
provisions of this Article shall survive the expiration or sooner
termination of this Lease.
<PAGE>
ARTICLE 25 SUBORDINATION
25.1. This Lease is and shall be subject and subordinate
to all present and future ground or underlying leases and to all
mortgages, options, and building loan agreements that may now or
hereafter affect such leases or the real property of which the
Premises are a part and to all renewals, modifications,
consolidations, replacements and extensions of any such ground or
underlying leases, options, building loan agreements and
mortgages. The provisions of this Section 25.1 shall be self-
operative and no further instrument of subordination shall be
required. In confirmation of such subordination, Tenant shall
execute and deliver promptly at its own cost and expense any
instrument, in recordable form if required, that Landlord, the
lessor of the ground or underlying lease or the holder of any
such mortgage or any of their respective successors in interest
may request to evidence such subordination, and Tenant hereby
constitutes and appoints Landlord or its successors in interest
to be Tenant's attorney-in-fact, irrevocably and coupled with an
interest, to execute and deliver any such instrument for and on
behalf of Tenant.
25.2. In the event of a termination of any ground or
underlying lease, or if the interests of Landlord under this
Lease are transferred by reason of, or assigned in lieu of,
foreclosure or other proceedings for enforcement of any mortgage,
or if the holder of any mortgage acquires a lease in substitution
therefor, then Tenant under this Lease, at the option to be
exercised in writing by the lessor under such ground or
underlying lease or such mortgagee or purchaser, assignee or
lessee, as the case may be, either (a) will attorn to it and will
perform for its benefit all the terms, covenants and conditions
of this Lease on Tenant's part to be performed with the same
force and effect as if said lessor, such mortgagee or purchaser,
assignee or lessee, were the landlord originally named in this
Lease, or (b) will enter into a new lease with said lessor or
such mortgagee or purchaser, assignee or lessee, as landlord, for
the remaining Term of this Lease and otherwise on the same terms
and conditions and with the same options, if any, then remaining.
The foregoing provisions of clause (a) of this Section 25.2 shall
enure to the benefit of such lessor, mortgagee, purchaser,
assignee or lessee, shall be self-operative upon the exercise of
such option, and no further instrument shall be required to give
effect to said provisions. Tenant, however, upon demand of any
such lessor, mortgagee, purchaser, assignee or lessee, shall
execute, from time to time, instruments in confirmation of the
foregoing provisions of this Section 25.2, satisfactory to any
such lessor, mortgagee, purchaser, assignee or lessee,
acknowledging such attornment and setting forth the terms and
conditions of its tenancy. Tenant hereby constitutes and
appoints Landlord or its successors in interest to be the
Tenant's attorney-in-fact, irrevocably and coupled with an
interest, to execute and deliver such instrument of attornment,
or such new lease, if Tenant refuses or fails to do so promptly
upon request.
<PAGE>
25.3. Anything herein contained to the contrary
notwithstanding, under no circumstances shall any lessor under
any ground lease or mortgagee or purchaser, assignee or lessee,
as the case may be, whether or not it shall have succeeded to the
interests of the landlord under this Lease, be (a) liable for any
act, omission or default of any prior landlord or for the return
of any security deposit or part thereof not actually received by
such lessor, mortgagee, purchaser, assignee, or lessee, as the
case may be; or (b) subject to any offsets, claims or defenses
that Tenant might have against any prior landlord: or (c) bound
by any rent or additional rent that Tenant might have paid to any
prior landlord for more than one month in advance or for more
than three months in advance where such rent payments are payable
at intervals of more than one month (other than payments for
Tenant's Tax Payment which shall be paid in accordance with the
terms and conditions of Article 4 of this Lease); or (d) bound by
any modification, amendment or abridgment of this Lease, or any
cancellation or surrender of the same, made without its prior
written approval after such transaction has occurred.
25.4. If, in connection with the financing of the Land
and/or the Building, the holder or prospective holder of any
mortgage shall request reasonable modifications in this Lease as
a condition of approval thereof, Tenant will not unreasonably
withhold, delay or defer making such modifications, so long as
such modifications increase Tenant's obligations under this
Lease.
<PAGE>
ARTICLE 26 CERTIFICATE OF TENANT AND LANDLORD
26.1. Tenant, without charge, at any time and from time
to time (but not more than three times in any twelve month
period), within fifteen (15) days after request by Landlord,
shall deliver a written instrument to Landlord or any other
person, firm or corporation specified by Landlord, duly executed
and acknowledged, certifying (a) that this Lease is unmodified
and in full force and effect or, if there has been any
modification, that the same is in full force and effect as
modified and stating any such modification, that there is no
existing basis to cancel or terminate this Lease, and to the best
of Tenant's knowledge Landlord is not in default thereunder; (b)
whether the Term of this Lease has commenced and rent become
payable thereunder, and whether Tenant is in possession of all of
the Premises except for such portions of the Premises that have
been sublet or being held for sublet pursuant to the provisions
of this Lease and whether Landlord substantially has completed
the Landlord's Work; (c) whether or not, to the best of Tenant's
knowledge, there are then existing any defenses or offsets that
are not claims under paragraph (e) of this Section 26.1 against
the enforcement of any of the agreements, terms, covenants, or
conditions of this Lease and any modification thereof upon the
part of Tenant to be performed or complied with, and, if so,
specifying the same; (d)the amount of the fixed annual rent
payable under this Lease and the dates to which the fixed annual
rent and additional rent and other charges hereunder have been
paid; (e) whether or not Tenant has made any claim against
Landlord under this Lease and, if so, the nature and the dollar
amount, if any, of such claim.
26.2. Tenant agrees that, except for the first month's
rent hereunder, it will pay no rent under this Lease more than
one month in advance of its due date. In the event of any act or
omission by Landlord, Tenant will not exercise any right to
terminate this Lease or to remedy the default and deduct the cost
thereof from rent due hereunder until Tenant shall have given
written notice of such act or omission to the ground lessor and
to the holder of any mortgage on the fee or the ground lease who
shall have furnished such lessor's or holder's last address to
Tenant, and until a reasonable period for remedying such act or
omission shall have elapsed following the giving of such notices,
during which time such lessor or holder shall have the right, but
shall not be obligated, to remedy or cause to be remedied such
act or omission. Tenant shall not exercise any right pursuant to
this Section 26.2 if the holder of any mortgage or such aforesaid
lessor commences to cure such aforesaid act or omission within a
reasonable time and diligently prosecutes such cure thereafter.
<PAGE>
26.3. At Landlord's request, Tenant shall deliver
promptly to Landlord and to the holder of any mortgage on the fee
or ground lease and the lessor under any ground or underlying
lease, after the occurrence of the Commencement Date, a letter
signed by Tenant and acknowledged, in substantially the form
annexed hereto as Schedule C.
26.4. Landlord, without charge, at any time and from
time to time (but not more than once per year), within twenty
(20) days after request by Tenant, shall deliver a written
instrument to Tenant, duly executed and acknowledged, certifying
(a) that this Lease is unmodified and in full force and effect
or, if there has been any modification, that the same is in full
force and effect as modified and stating any such modification,
that there is no existing basis to cancel or terminate this
Lease, and to the best of Landlord's knowledge Tenant is not in
default thereunder; (b) the amount of the fixed annual rent
payable under this Lease and the dates to which the fixed annual
rent and additional rent and other charges hereunder have been
paid; (c) whether or not Landlord has made any claim against
Tenant under this Lease and, if so, the nature and the dollar
amount, if any, of such claim.
ARTICLE 27 LEGAL PROCEEDINGS; WAIVER OF JURY TRIAL;
ATTORNEYS' FEES
27.1. Landlord and Tenant hereby waive trial by jury in
any action, proceeding or counterclaim brought by either of the
parties hereto against the other on any matters whatsoever
arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of
the Premises, and/or any other claims (except claims for personal
injury or property damage), and any emergency statutory or any
other statutory remedy. If Landlord commences any summary
proceeding for non-payment of rent, Tenant shall not interpose
and hereby waives the right to interpose any counterclaim of
whatever nature or description in any such proceeding (other than
a counterclaim which will be waived by Tenant if not interposed
in such proceeding). Tenant shall reimburse Landlord, on demand,
for all costs and expenses (including reasonable attorneys' fees
and disbursements and court costs, whether in connection with an
action or proceeding commenced by Landlord, by Tenant, by a third
party or otherwise) incurred by Landlord in connection with (a)
enforcing against Tenant, Tenant's obligations under this Lease,
<PAGE>
(b) the termination of this Lease and the eviction of Tenant
through summary or other proceedings or for any other relief
against Tenant, (c) recovering any sums due under this Lease or
any damages for Tenant's breach of the terms of this Lease, (d)
determining the respective rights and obligations of the parties
to this Lease, including but not limited to, by declaratory
relief, (e) the appearance by Landlord, or any partner, employee,
agent or servant of Landlord, as a witness in any proceeding
against Tenant or upon the request of Tenant, involving the
Premises, (f) the defense of any claim against Landlord or any
partner, employee, agent or servant of Landlord arising under
this Lease involving the Premises, whether brought by Tenant or a
third party in which the claimant does not obtain a final,
unappealable judgment of all such claimant's allegations, (g) any
amendment, modification or change in any of the terms of this
Lease requested by Tenant or any renewal or extension of this
Lease requested by Tenant, and any request or negotiations
pertaining thereto, regardless of whether such amendment,
modification, change, renewal or extension is actually executed,
and (h) as otherwise provided in this Lease. All such amounts
shall be deemed to be additional rent, but shall be collectible
whether incurred before or after the expiration or termination of
this Lease.
27.2. Tenant hereby agrees that any legal proceeding
with respect to the Lease may be brought in the courts of the
State of New York or in the United States District Court for the
District in which the Building is located, as Landlord may elect.
Tenant hereby accepts with regard to any such Legal Proceeding,
for itself and in respect of its property, generally and
unconditionally, the jurisdiction of such courts. Nothing in
this Article shall affect Landlord's rights to commence legal
proceedings or otherwise proceed against Tenant in New York City
or in any other jurisdiction in which assets of Tenant are
located or to serve process in any other manner permitted by
applicable law. Tenant further agrees that final judgment in any
such legal proceeding shall be conclusive and, to the extent
permitted by applicable law, may be enforced in any other
jurisdiction within or outside the United States of America by
suit on the judgment, a certified or exemplified copy of which
shall be conclusive evidence of the fact and of the amount of
Tenant's indebtedness.
<PAGE>
ARTICLE 28 SURRENDER OF PREMISES
28.1. Upon the expiration or other termination of the
Term of this Lease, Tenant shall quit and surrender the Premises
to Landlord, broom clean, in good order and condition, ordinary
wear and tear and damage by fire, the elements or other casualty
excepted, and Tenant shall remove all of its property as herein
provided.
28.2. Tenant acknowledges that possession of the
Premises must be surrendered to Landlord at the expiration or
sooner termination of the Term of this Lease. The parties
recognize and agree that the damage to Landlord resulting from
any failure by Tenant timely to surrender possession of the
Premises as aforesaid will be extremely substantial, will exceed
the amount of the monthly rent and additional rent theretofore
payable hereunder, and will be impossible accurately to measure.
Tenant therefore agrees that if possession of the Premises is not
surrendered to Landlord within 24 hours after the date of the
expiration or sooner termination of the Term of this Lease, then,
notwithstanding anything to the contrary contained in this Lease,
Tenant shall pay to Landlord for each month and for each portion
of any month during which Tenant holds over in the Premises after
the expiration or sooner termination of the Term of this Lease,
rent at the greater of (a) a rate equal to one and one-half (1 1/2)
times the aggregate of that portion of the fixed annual rent and
additional rent that was payable under this Lease for the last
month of the Term hereof, or (b) the then market rent for the
Premises or (c) the maximum amount permitted by law; provided,
however, that in no event shall Landlord be entitled to receive
an amount in excess of the maximum amount permitted by Legal
Requirements. Nothing herein contained shall be deemed to permit
Tenant to retain possession of the Premises after the expiration
or sooner termination of the Term of this Lease. The provisions
of this Section 28.2 shall survive the expiration or other
termination of the Term of this Lease.
<PAGE>
ARTICLE 29 RULES AND REGULATIONS
29.1. Tenant and Tenant's servants, employees and agents
shall observe faithfully and comply strictly with the Rules and
Regulations set forth in Schedule D annexed hereto and made part
hereof entitled "Rules and Regulations" and such other and
further reasonable Rules and Regulations as Landlord or
Landlord's agents may adopt from time to time. In the event of
any conflict or inconsistency between the provisions of this
Lease and of any of the Rules and Regulations as originally or as
hereafter adopted, the provisions of this Lease shall control.
Reasonable written notice of any additional Rules and Regulations
shall be given to Tenant. Landlord shall not enforce the Rules
and Regulations against Tenant in a discriminatory manner.
29.2. Nothing in this Lease contained shall be construed
to impose upon Landlord any duty or obligation to enforce the
Rules and Regulations or the terms, covenants or conditions in
any other lease, against any other tenant of the Building, and
Landlord shall not be liable to Tenant for violation of the same
by any other tenant, its servants, employees, agents, visitors or
licensees.
ARTICLE 30 CONSENTS AND APPROVALS
Wherever in this Lease Landlord's consent or approval is
required, if Landlord shall delay or refuse such consent or
approval, Tenant in no event shall be entitled to make, nor shall
Tenant make, any claim, and Tenant hereby waives any claim, for
money damages (nor shall Tenant claim any money damages by way of
set-off, counterclaim or defense) based upon any claim or
assertion by Tenant that Landlord unreasonably withheld or
unreasonably delayed its consent or approval. Tenant's sole
remedy shall be an action or proceeding to enforce any such
provision, for specific performance, injunction or declaratory
judgment.
<PAGE>
ARTICLE 31 NOTICES
Any notice, demand, consent, approval, disapproval, or
statement (collectively, "Notices") from Landlord to Tenant or
from Tenant to Landlord shall be in writing and shall be deemed
duly given (a) if mailed by registered or certified mail, postage
prepaid, return receipt requested, (b) if delivered by recognized
national overnight delivery service with receipt acknowledged, or
(c) only in the case of Notices that are Escalation Statements or
bills for rent, if mailed by first class mail, postage prepaid,
to the address(es) for Notices set forth in this Article 31.
Notices to Tenant shall be sent to Tenant at the Premises, with a
copy of notices of default to Snow Becker Krauss P.C., 605 Third
Avenue, New York, New York 10158, Attention: Jack Becker, Esq.
Notices to Landlord shall be sent (i) to the address of Landlord
set forth on page 1 of this Lease or (ii) to such other address
as Landlord shall have last designated by notice in writing to
Tenant, with a copy to Handsman & Kaminsky LLP, 609 Fifth Avenue,
Sixth Floor, New York, New York 10017, Attention: David S.
Handsman, Esq. Notice shall be deemed given on the third
business day after depositing same in an official depository of
the United States Postal Service (or successor organization) or,
if given by overnight delivery, upon delivery to Landlord or
Tenant, as the case may be.
<PAGE>
ARTICLE 32 NO WAIVER
No agreement to accept a surrender of this Lease shall be
valid unless in writing signed by Landlord. No employee of
Landlord or of Landlord's agents shall have any power to accept
the keys to the Premises prior to the termination of this Lease.
The delivery of keys to any employee of Landlord or of Landlord's
agent shall not operate as a termination of this Lease or a
surrender of the Premises. If Tenant at any time desires to have
Landlord sublet the Premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive said keys for such
purpose without releasing Tenant from any of the obligations
under this Lease. The failure of Landlord to seek redress for
violation of, or to insist upon the strict performance of, any
covenant or condition of this Lease or any of the Rules and
Regulations set forth herein, or hereafter adopted by Landlord,
shall not prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect of
an original violation. The receipt by Landlord of rent with
knowledge of the breach of any covenant of this Lease shall not
be deemed a waiver of such breach. The failure of Landlord to
enforce any of the Rules and Regulations set forth herein, or
hereafter adopted, against Tenant and/or any other tenant in the
Building shall not be deemed a waiver of any such Rules and
Regulations. No provision of this Lease shall be deemed to have
been waived by Landlord, unless such waiver be in writing signed
by Landlord. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on the account of the earliest stipulated
rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment of rent be deemed an
accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy in this Lease
provided.
<PAGE>
ARTICLE 33 INABILITY TO PERFORM
This Lease and the obligation of Tenant to pay rent
hereunder and to perform all of the other covenants and
agreements hereunder on the part of Tenant to be performed shall
in no way be affected, impaired or excused because Landlord is
unable to fulfill any of its obligations under this Lease or to
supply or is delayed in supplying any service expressly or
impliedly to be supplied or is unable to make, or is delayed in
making any repair, additions, alterations or decorations or is
unable to supply or is delayed in supplying any equipment or
fixtures if Landlord is prevented or delayed from so doing by
reason of strike or labor troubles or any cause whatsoever
beyond the control of Landlord including, but not limited to,
government preemption in connection with a National Emergency or
by reason of any rule, order or regulation of any department or
subdivision thereof of any government agency or by reason of the
conditions of supply and demand which have been or are affected
by war or other emergency.
ARTICLE 34 ENTIRE AGREEMENT; NO REPRESENTATIONS;
NO ORAL MODIFICATION
34.1. This Lease and the Schedules attached hereto set
forth all of the covenants, promises, assurances, agreements,
representations, conditions, warranties, statements and
understandings (collectively, the "Representations") between
Landlord and Tenant concerning the Premises and the Building, and
there are no Representations, either oral or written, between
Landlord and Tenant other than those set forth in this Lease.
34.2. This Lease supersedes and revokes all previous
negotiations, arrangements, letters of intent, offers to lease,
lease proposals, brochures, Representations, and information
conveyed, whether oral or in writing, between Landlord and Tenant
or their respective representatives or any other person
purporting to represent Landlord or Tenant. Tenant acknowledges
that it has not been induced to enter into this Lease by any
Representations not set forth in this Lease, it has not relied on
any such Representation, no such Representations shall be used in
the interpretation or construction of the Lease, and Landlord
shall have no liability for any consequences arising as a result
of any such Representations.
34.3. Except as otherwise provided in this Lease, no
subsequent alteration, amendment, change or addition to this
Lease shall be binding upon Landlord or Tenant unless in writing
and signed by the party against whom enforcement of the
alteration, amendment, change or addition is sought.
<PAGE>
ARTICLE 35 SECURITY
35.1. Tenant has deposited an amount equal to Forty-Six
Thousand Three Hundred Eighty-One Dollars and Fifty Cents
($46,381.50) as and for the security deposit (the "Security
Deposit") with Landlord as security for the faithful performance
and observance by Tenant of the terms, provisions, covenants and
conditions of this Lease. If Tenant defaults, beyond the
expiration of any applicable notice and cure period, in respect
of any of the terms, provisions, covenants and conditions of this
Lease, including, but not limited to, the payment of fixed annual
rent and additional rent, Landlord may use, apply or retain the
whole or any part of the Security Deposit to the extent required
for the payment of any fixed annual rent and additional rent or
any other sum as to which Tenant is in default or for any sum
that Landlord may expend or may be required to expend by reason
of Tenant's default in respect of any of the terms, provisions,
covenants and conditions of this Lease, including but not limited
to, any damages or deficiency in the re-letting of the Premises,
whether such damages or deficiency accrued before or after
summary proceedings or other re-entry by Landlord. To the extent
that Landlord, during the Term of this Lease, so uses, applies,
or retains all or any part of the Security Deposit, Tenant,
within ten (10) days after demand, shall pay to Landlord a sum
sufficient to restore the Security Deposit to the original amount
deposited hereunder. If Tenant shall comply fully and faithfully
with all of the terms, provisions, covenants and conditions of
this Lease, the Security Deposit shall be returned to Tenant
within twenty (20) days after the date fixed as the end of the
Lease and after delivery of entire possession of the Premises to
Landlord.
35.2. In the event of a sale of the Land and the
Building or the leasing or transfer of the Building, Landlord
shall have the right to transfer the Security Deposit to the
vendee or lessee or transferee and Landlord thereupon shall be
released by Tenant from all liability for the return of such
Security Deposit. Tenant shall look solely to the new landlord
for the return of the Security Deposit. The provisions hereof
shall apply to every transfer or assignment made of the Security
Deposit to a new landlord.
<PAGE>
35.3. Tenant covenants that it will not assign or
encumber or attempt to assign or encumber the money deposited as
the Security Deposit under this Lease and that neither Landlord
nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted
encumbrance. In the event that any bankruptcy, insolvency,
reorganization or other debtor-creditor proceedings shall be
instituted by or against Tenant, its successors or assigns, or
any guarantor of Tenant hereunder, the Security Deposit shall be
deemed to be applied to the payment of the fixed annual rent and
for additional rent due Landlord for periods prior to the
institution of such proceedings and the balance, if any, may be
retained by Landlord in partial satisfaction of Landlord's
damages.
35.4. Landlord shall deposit the Security Deposit into
an interest bearing account at a banking organization selected by
Landlord. All interest and/or dividends, if any, accruing on the
Security Deposit, less a 1% per annum charge for administrative
expense, shall be added to, held and included within the Term
Security Deposit and, provided that Tenant is not in default in
the performance of the terms, provisions, covenants and
conditions of this Lease, shall accrue to the account of Tenant.
Landlord shall not be required to credit Tenant with any interest
for any period during which Landlord does not receive interest on
the Security Deposit.
ARTICLE 36 CHANGE OF LOCATION
36.1. Landlord shall have the absolute and unqualified
right, upon sixty (60) days prior notice to Tenant to designate
as the Premises that part of any other floor in the Building that
approximately corresponds to the premises demised hereunder;
provided, however, that Landlord may not relocate Tenant to a
lower floor in the Building or a different location in the
Building than the Premises. Such notice shall specify and
designate the space so substituted for the Premises.
Notwithstanding such substitution of space, this Lease and all
the terms, provisions, covenants and conditions contained in this
Lease shall remain and continue in full force and effect, except
that the Premises shall be and be deemed to be such substituted
space (hereinafter called "Substituted Space"), with the same
force and effect as if the Substituted Space were originally
specified in this Lease as the premises demised hereunder. If
Landlord elects to relocate Tenant then Landlord shall pay the
moving costs in connection with such relocation, and shall pay
for any and all reasonable costs and expenses incurred by Tenant
in connection with such relocation. The Substituted Space shall
be reasonably acceptable to Tenant and shall be reasonably
comparable to the Premises.
<PAGE>
36.2. In the event of the substitution of space as
provided in Section 36.1 the following provisions (a) through (d)
shall apply:
(a) If the Substituted Space has a rentable area less
than the rentable area of the Main Premises, the fixed annual
rent payable under Article 1 of this Lease and the additional
rent payable under Articles 3 and 4 of this Lease, effective on
the date that Tenant takes possession of the Substituted Space,
shall be decreased to reflect the lesser number of rentable
square feet in the Substituted Space; provided, however, that in
no event shall the Substituted Space contain less than 95% of the
rentable area of the Main Premises and that Tenant is able to
conduct its business in substantially the same manner as
conducted by Tenant in the Premises.
(b) Landlord shall, at Landlord's expense, prepare the
Substituted Space in substantially the same manner as Tenant had
prepared the Premises (including, without limitation, any
supplemental or additional electrical power) and shall have the
right to remove any floor covering, cabinet work, and any other
decoration to the Substituted Space, as well as telephone lines
and any other communication line to the Substituted Space.
(c) As soon as Landlord has completed preparing the
Substituted Space as set forth in subsection 36.2(b), Tenant,
upon twenty (20) days' prior written notice, shall move to the
Substituted Space at Landlord's sole cost and expense, and upon
failure of Tenant so to move to the Substituted Space, Landlord,
as Tenant's agent, may remove Tenant from the Premises to the
Substituted Space. The failure of Tenant to move to the
Substituted Space pursuant to this Article 36 shall be deemed a
default under this Lease.
(d) Upon request from Landlord, Tenant shall supply
Landlord with satisfactory evidence of out-of-pocket expenses
incurred by Tenant in moving from the Premises to the Substituted
Space.
36.3. Following any substitution of space pursuant to
this Article 36, Landlord and Tenant, promptly at the request of
either party, shall execute and deliver a supplementary agreement
setting forth such substitution of space and the change (if any)
in the fixed annual rent and additional rent, and rentable area
in the appropriate places in this Lease.
<PAGE>
ARTICLE 37 NON-LIABILITY AND INDEMNIFICATION
37.1. Neither Landlord nor any partner, member,
director, officer, agent, servant or employee of Landlord shall
be liable to Tenant for any loss, injury or damage to Tenant or
to any other person, or to its or their property, irrespective of
the cause of such injury, damage or loss, except to the extent
the same are caused by or result from the negligence of Landlord,
its agents, servants, contractors or employees in the operation
or maintenance of the Premises or the Building. Further, neither
Landlord nor any partner, member, director, officer, agent,
servant or employee of Landlord shall be liable (a) for any such
damage caused by other tenants or persons in, upon or about the
Building or caused by operations in construction of any private,
public or quasi-public work; or (b) even if negligent, for
consequential damages arising out of any loss of use of the
Premises or any equipment or facilities therein by Tenant or any
person claiming through or under Tenant.
37.2. Tenant shall indemnify and hold harmless Landlord
and all lessors under underlying leases, of, and mortgagees under
mortgages affecting, the Land and/or the Building and its and
their respective partners, members, directors, officers, agents
and employees from and against any and all claims arising from or
in connection with (a) the use or occupation of the Premises by
Tenant or anyone in the Premises with Tenant's permission, or the
conduct or management of the Premises or of any business therein,
or any work or thing whatsoever done, or any condition created
(other than by Landlord, its agents, servants, contractors or
employees) in or about the Premises during the Term of this Lease
or during the period of time, if any, prior to the Lease or
during the period of time, if any, prior to the Commencement
Date, that Tenant may have been given access to the Premises; (b)
any act, omission or negligence of Tenant or any of its
sublessees or licensees or its or their partners, members,
directors, officers, agents, employees or contractors; (c) any
accident, injury or damage whatsoever (except to the extent
caused by the negligence of Landlord, its agents, servants,
contractors or employees) occurring in, at or upon the Premises;
and (d) any breach or default by Tenant in the full and prompt
payment and performance of Tenant's obligations under this Lease.
Tenant's indemnity shall include the payment to Landlord of all
costs, expenses and liabilities incurred in or in connection with
each such claim or action or proceeding brought thereon,
including without limitation, all reasonable attorneys' fees,
costs and expenses. In case any action or proceeding shall be
brought against Landlord and/or any such lessor or mortgagee
and/or its or their partners, directors, officers, agents and/or
employees by reason of such claim, Tenant, upon notice from
Landlord or such lessor or mortgagee (as the case may be), shall
resist and defend such action or proceeding (by counsel
reasonably satisfactory to Landlord).
<PAGE>
ARTICLE 38 FAILURE TO GIVE POSSESSION
If the Premises or any additional space to be included
within the Premises shall not be available for occupancy by
Tenant on the specific date (if any) hereinbefore designated for
the commencement of the Term of this Lease or for the inclusion
of such space for any reason whatsoever, then this Lease shall
not be affected thereby but, in such case, said specific date
shall be deemed to be postponed until the date when the Premises
or such additional space shall be available for occupancy by
Tenant, and Tenant shall not be entitled to possession of the
Premises or such additional space until the same are available
for occupancy by Tenant, provided, however, that Tenant shall
have no claim against Landlord, and Landlord shall have no
liability to Tenant by reason of any such postponement of said
specific date, and the parties hereto further agree that any
failure to have the Premises or such additional space available
for occupancy by Tenant on said specific date or on the
Commencement Date shall in no way affect the obligations of
Tenant hereunder nor shall the same be construed in any way to
extend the Term of this Lease and furthermore, this Section 38.1
shall be deemed to be an express provision to the contrary of
Section 223-a of the Real Property Law of the State of New York
and any other law of like import now or hereafter in force.
ARTICLE 39 ADDITIONAL SPACE; RENEWAL OPTION
39.1. Provided Tenant is not in default beyond the
expiration of any applicable grace and notice periods and so long
as Tenant has not sublet or assigned all or any portion of the
Premises, Landlord hereby grants to Tenant a right of first offer
(the "Right of First Offer") on any available rentable space that
is located on the fifteenth (15th) floor of the Building. This
Right of First Offer shall not apply to any space which is
currently subject to a written lease, option, right of first
offer, right of first refusal or renewal provision in a written
lease or to any space where the Landlord elects to renew or
extend (or enter into a new lease) the lease of an existing
tenant. Landlord shall provide Tenant with written notice of the
availability of any space which is vacant or which is currently
occupied that Landlord reasonably expects will become available
for leasing and such notice to Tenant shall set forth the terms
and conditions for such rental. Tenant shall have a period of up
to fifteen (15) days, time being of the essence, to notify
Landlord that it will lease such space and thereafter Landlord
shall have no further obligation to notify Tenant of the
availability of such space. In the event Tenant does not notify
Landlord that it elects to lease such additional space within the
fifteen (15) day period set forth above, time being of the
essence, then Landlord shall be permitted to lease such space
without further notice to Tenant and Tenant shall be deemed to
have irrevocably waived any right it may have to lease such
space; provided, however, that Landlord shall provide Tenant with
an additional fifteen (15) day period to determine whether Tenant
elects to lease such space in the event Landlord elects to lease
such space on materially different terms than as set forth in
Landlord's prior notice to Tenant. Time shall be of the essence
as to the giving of notices under this Section 39.1. For the
<PAGE>
purpose of this Section 39.1, the phrase "materially different
terms" shall mean a fifteen percent (15%) decrease in the
aggregate amounts payable under such lease by the tenant for such
additional space. It is understood and agreed that once any
space is offered to Tenant and such offered space is not leased
by Tenant, Landlord shall have no further obligation to offer
such space to Tenant and the Right of First Offer in this Section
39.1 shall no longer apply to such previously offered space.
39.2. (i) Tenant shall have the option (the "Renewal
Option") to extend the term of this Lease for one (1) additional
five (5) year period (the "Renewal Term"). The Renewal Term
shall commence on the date immediately succeeding the Expiration
Date and end on the anniversary of the Expiration Date, provided
that (i) this Lease shall not have been previously terminated in
accordance with the terms thereof, (ii) Tenant shall occupy the
Premises for the conduct of its business and (iii) no default
shall have occurred and be continuing (x) on the date Tenant
gives Landlord written notice (the "Renewal Notice") of Tenant's
election to exercise the Renewal Option, or (y) on the Expiration
Date (or on the last day of each successive renewal term. The
Renewal Option may be exercised with respect to the entire
Premises only and shall be exercisable by Tenant delivering the
Renewal Notice to Landlord at least nine (9) months prior to the
Expiration Date. Time is of the essence with respect to the
giving of the Renewal Notice. Upon the giving of the Renewal
Notice with respect to the Renewal Term, Tenant shall have no
further right or option to extend or renew the Term.
(ii) If Tenant exercises the Renewal Option, the
Renewal Term shall be upon the same terms, covenants and
conditions as those contained in this Lease, except that (A) the
Fixed Rent shall be deemed to mean the Fixed Rent as determined
pursuant to subparagraph (iii) of this Section 39.2, (B) Tenant
shall not be entitled to any additional rent abatement against
the Fixed Rent and (C) the provisions of this Section 39.2
concerning Tenant's right to renew the Term shall not be
applicable during the Renewal Term.
(iii) (a) If Tenant exercises the Renewal Right
pursuant to Section 39.2(i), then within thirty (30) days after
receipt of Tenant's renewal notice pursuant to Section 39.2, time
being of the essence, Landlord shall notify Tenant in writing of
Landlord's determination of the Fixed Rent for the Renewal Term
(the "Landlord's Notice") which Fixed Rent shall be one hundred
percent (100%) of the fair market rental for the Premises.
Within thirty (30) days after receipt of Landlord's Notice, time
being of the essence, Tenant shall notify Landlord whether such
Fixed Rent for the Renewal Term is acceptable to Tenant. If
Tenant accepts such Fixed Rent as provided in Landlord's Notice,
then the term of this Lease shall be extended as provided in
Section 39.2(i) and the Fixed Rent for such Renewal Term shall be
as set forth in Landlord's Notice. If Tenant declines to accept
such Fixed Rent as provided in Landlord's Notice, then the rent
for the Renewal Term shall be determined as provided in Section
39.2(iv) below. It is agreed that the base years for the real
estate tax escalation and the operating expense escalation shall
be reset to the then current years.
(iv) If Tenant disputes the Fixed Rent set forth in
Landlord's Notice, then Tenant shall deliver a notice to Landlord
(the "Tenant's Notice") which shall contain Tenant's
determination of the Fixed Rent ("Tenant's Determination") as
well as the name of an independent real estate appraiser
("Tenant's Consultant"), to act as Tenant's representative if
Landlord does not accept Tenant's Determination.
<PAGE>
(a) Landlord shall give Tenant written notice
("Landlord's Second Notice"), within 20 days after Landlord's
receipt of Tenant's Determination, of whether Landlord accepts or
disputes Tenant's Determination. If Landlord in Landlord's
Second Notice disputes Tenant's Determination, Landlord shall
appoint an independent real estate appraiser ("Landlord's
Consultant") to act as Landlord's representative. Not later than
ten Business Days after Tenant's receipt of Landlord's Second
Notice, Tenant's Consultant and Landlord's Consultant shall meet
(in person or by telephone) to mutually agree upon the
determination of the Fixed Rent, and their determination shall be
final and binding upon the parties. If Landlord's Consultant and
Tenant's Consultant shall be unable to reach such determination
within 30 days after Tenant's receipt of Landlord's Second
Notice, both of the Consultants shall jointly select a third
independent real estate appraiser ("Third Consultant") whose fee
shall be borne equally by Landlord and Tenant. In the event that
Landlord's Consultant and Tenant's Consultant shall be unable to
jointly agree on the designation of the Third Consultant within
five days after they are requested to do so by either party, then
the parties agree to allow the American Arbitration Association
or any successor organization to designate the Third Consultant
in accordance with the rules, regulations and/or procedures then
obtaining of the American Arbitration Association or any
successor organization.
(b) The Third Consultant shall conduct such
hearings and investigations as he or she may deem appropriate and
shall, within 30 days after the date of designation of the Third
Consultant, choose either Landlord's or Tenant's Determination,
and such choice by the Third Consultant shall be conclusive and
binding upon Landlord and Tenant. Each party shall pay its own
counsel fees and expenses, if any, in connection with any
arbitration under this Section 4.1(c)(ii), including the expenses
and fees of any Consultant selected by it in accordance with the
provisions hereof. Any Consultant appointed pursuant to this
Article 4 shall be an independent real estate appraiser with at
least ten years' experience in leasing and valuation of
properties which are similar in character to the Building, a
member of the American Institute of Appraisers of the National
Association of Real Estate Boards and a member of the Society of
Real Estate Appraisers. The Consultants shall not have the power
to add to, modify or change any of the provisions of this Lease.
<PAGE>
(v) After a determination has been made of the Fixed
Rent for the Renewal Term, the parties shall execute and deliver
to each other an instrument setting forth the Fixed Rent as
hereinabove determined. The definition of the Base Rate and Base
Tax for the Renewal Term shall be determined by the parties or
the Consultant, as the case may be.
ARTICLE 40 MISCELLANEOUS
40.1. Irrespective of the place of execution or
performance, this Lease shall be governed and construed in
accordance with the laws of the State of New York.
40.2. This Lease shall be construed without regard to
any presumption or other rule requiring construction against the
party causing this Lease to be drafted.
40.3. Except as otherwise expressly provided in this
Lease, each covenant, agreement, obligation or other provision of
this Lease on Tenant's part to be performed shall be deemed and
construed as a separate and independent covenant of Tenant, not
dependent on any other provision of this Lease.
40.4. All terms and words used in this Lease, regardless
of the number or gender in which they are used, shall be deemed
to include any other number and other gender as the context may
require.
40.5. Time shall be of the essence with respect to the
exercise of any option granted under this Lease.
40.6. Except as otherwise provided in this Lease,
whenever the payment of interest is required to be made by Tenant
to Landlord by the terms hereof it shall be at the Interest Rate.
40.7. In the event that Tenant is in arrears in the
payment of fixed annual rent or additional rent hereunder, Tenant
waives Tenant's right, if any, to designate the items against
which any payments made by Tenant are to be credited, and Tenant
agrees that Landlord may apply any payments made by Tenant to any
items it sees fit, irrespective of and notwithstanding any
designation or request by Tenant as to the items against which
any such payments shall be credited.
40.8. The submission of this document for examination
does not constitute an option or an offer to lease space in the
Building. This Lease shall have no binding effect on the parties
unless executed by Landlord and Tenant and a fully executed copy
is delivered to Landlord and Tenant.
<PAGE>
40.9. The captions are inserted only as a matter of
convenience and for reference, and in no way define, limit or
describe the scope of this Lease or the intent of any provision
hereof.
40.10. Landlord shall have the full right at any time to
name and change the name of the Building and to change the
designated address of the Building. The Building may be named
after any person, firm, or otherwise, whether or not such name
is, or resembles, the name of a tenant of the Building.
40.11. Tenant shall be entitled to use of the freight
elevators for one shift commencing at 5:00 p.m., on a weekday, at
no charge during its initial move into the Building for no longer
than eight (8) hours.
40.12. Tenant shall be entitled to receive one set of
keys to the Premises at no charge.
IN WITNESS WHEREOF, Landlord and Tenant have
respectively executed this Lease as of the day and year first
above written.
LANDLORD:
270 MADISON LIMITED PARTNERSHIP
By: ORIXGP 270 Madison Corp.,
General Partner
By:/s/_____________________
TENANT:
MICROS-TO-MAINFRAMES, INC.
By:/s/ Steven H. Rothman
--------------------------
Name: Steven H. Rothman
Title: President & CEO
<PAGE>
SCHEDULE A
Floor Plan
<PAGE>
ALL AREAS, DIMENSIONS AND CONDITIONS ARE APPROXIMATE
SCHEDULE B
Cleaning Specifications
GENERAL CLEANING
NIGHTLY:
General Offices:
1. All hard-surfaced flooring to be swept using approved dust-
down preparation.
2. Carpet sweep all carpets, moving only light furniture
(desks, file cabinets, etc. not to be moved).
3. Hand dust and wipe clean all furniture, fixtures and window
sills.
4. Empty and clean all ash trays and screen all sand urns.
5. Empty and clean all waste disposal cans and baskets.
6. Dust interiors of all waste disposal cans and baskets.
7. Wash clean all water fountains and coolers.
Public Lavatories:
1. Sweep and wash all floors, using proper disinfectants.
2. Wash and polish all mirrors, shelves, bright work and
enameled surfaces.
3. Wash and disinfect all basins, bowls and urinals.
4. Wash all toilet seats.
5. Hand dust and clean all partitions, tile walls, dispensers
and receptacles in lavatories and restrooms.
6. Empty paper receptacles and remove wastepaper.
7. Fill and clean all soap, towel and toilet tissue dispensers
as needed.
8. Empty and clean sanitary disposal receptacles.
WEEKLY:
1. Vacuum clean all carpeting and rugs and the common areas of
the floor.
2. Dust all door louvres and other ventilating louvres within a
person's reach.
3. Wipe clean all brass and other bright work.
<PAGE>
QUARTERLY:
High dust the demised premises complete, including the
following:
1. Dust all pictures, frames, charts, graphs and similar wall
hangings not reached in nightly cleaning.
2. Dust clean all vertical surfaces, such as walls, partitions,
doors and door bucks and other surfaces not reached in
nightly cleaning.
3. Dust all pipes, ventilating and air-conditioning louvres,
ducts, high moldings and other high areas not reached in
nightly cleaning.
4. Dust all venetian blinds.
Wash exterior and interior of windows periodically, subject
to weather conditions and requirements of law.
<PAGE>
SCHEDULE C
Form of Estoppel Letter
[Date]
[Addressee]
Re: Lease dated Between
, Lessor, and ,
Lessee, for premises located on
in the building at
270 Madison Avenue, New York, New York
10016
Ladies and Gentlemen:
The undersigned, as Lessee, has been advised that the
above described lease (the "Lease") has been or will be assigned
to you as security for a mortgage loan to
, a , and as an inducement therefor
hereby confirms the following:
1. That it has accepted possession of the premises
demised pursuant to the terms of the Lease and that the Lease is
in full force and effect.
2. That the improvements and space required to be
furnished according to the Lease have been completed in all
respects.
3. That the Lessor has fulfilled all of its duties of
an inducement nature and that neither the undersigned nor the
Lessor is currently in default under the terms, covenants and
obligations of the Lease.
4. That the Lease has not been modified, altered or
amended, except for .
5. That there are no off-sets, counter-claims or
credits against rentals, nor have rentals been prepaid, except as
provided by the Lease terms.
6. That rentals under the Lease commenced on the
day of , 19 . The lease term expires
( ) years from that date, or the __ day of _______, 19__.
7. That the undersigned has no notice of a prior
assignment, hypothecation or pledge of rents or the Lease.
8. That in the event of a default by Lessor under the
Lease, Lessee shall give you prompt written notice of such
default at the address set forth hereinabove and a reasonable
opportunity to cure said default before we exercise any of our
rights under the Lease which we would have by reason of the
occurrence of such default.
<PAGE>
9. That Lessee will cause you to be named as an
insured, as your interest may appear; by standard mortgage
clause, under all policies of insurance required to be maintained
by the Lessee under the Lease, which policies of insurance will
specifically provide for non-cancellation and no material
modification without 30 days' prior written notice to you.
10. That notwithstanding the above-referenced
assignment of the Lease to you, Lessee understands and
acknowledges that (i) all rental and other payments due under the
terms of the Lease shall continue to be paid in accordance with
the terms of the Lease until and unless Lessee is notified to the
contrary in writing by you; and (ii) you assume no duty,
liability or obligation under the Lease, either by virtue of said
assignment, the exercise of remedies thereunder, or any
subsequent receipt or collection of rentals or any other sums due
under the terms of the Lease.
11. That Lessee shall comply with and be bound by
all of the terms, covenants and obligations of the Lease. No
cancellation or modification of the Lease or waiver or consent
under the terms of the Lease or prepayment of or reduction in
rental under the Lease shall be effective without your prior
written consent.
12. That if, by foreclosure, or otherwise, you,
your successors or assigns, or any purchaser at or after
foreclosure sale or otherwise, shall come into possession of or
become the owner of the premises demised by Lease, then: (a)
Lessee agrees to attorn to, be liable to, and recognize you or
such successor, assign or purchaser as Lessor under the Lease and
to be bound by and to perform all of the obligations imposed by
the Lease upon Lessee, and you, such successor, assign or
purchaser shall succeed to all of the rights of Lessor under the
Lease; and (b) provided that no default then exists under the
terms and covenants of the Lease, you or such successor, assign
or purchaser will not disturb the occupancy of Lessee under the
Lease, except in accordance with the terms of the Lease, and
shall be bound by all of the obligations imposed by the Lease
upon Lessor in accordance with the terms thereof, set only for
and during such respective period of time as you or such
successor, assign or purchaser shall possess or own the said
premises.
13. That you shall not be (a) liable for any act
or omission of any person or party who may be a Lessor under the
Lease prior to your acquisition of title to said premises ("Prior
Lessor") or (b) subject to any off-sets or defenses which Lessee
may have against any Prior Lessor.
14. That this letter shall inure to your benefit
and to the benefit of your successors and assigns and shall be
binding upon Lessee and Lessee's heirs, personal representatives,
successors and assigns.
The above statements are made with the understanding
that you will rely on them in connection with the above-mentioned
loan.
<PAGE>
Very truly yours,
A corporation
By
LESSEE
Agreed to and accepted this day of , 19__.
A
By
LESSOR
<PAGE>
[attach acknowledgments]
SCHEDULE D
RULES AND REGULATIONS
1. The rights of tenants in the entrances, corridors,
elevators and escalators of the Building are limited to ingress
to and egress from the tenants' premises for the tenants and
their employees, licensees and invitees, and no tenant shall use,
or permit the use of, the entrances, corridors, escalators or
elevators for any other purpose. No tenant shall invite to the
tenant's premises, or permit the visit of, persons in such
numbers or under such conditions as to interfere with the use and
enjoyment of any of the plazas, arcades, entrances, corridors,
escalators, elevators and other facilities of the Building by
other tenants. Fire exits and stairways are for emergency use
only, and they shall not be used for any other purposes by the
tenants, their employees, licensees or invitees. No tenant shall
encumber or obstruct, or permit the encumbrance or obstruction of
any of the sidewalks, plazas, arcades, entrances, corridors,
escalators, elevators, fire exits or stairways of the Building.
Landlord reserves the right to control and operate the public
portions of the Building and the public facilities, as well as
facilities furnished for the common use of the tenants, in such
manner as it deems best for the benefit of the tenants generally.
2. The cost of repairing any damage to the public portions
of the Building or the public facilities or to any facilities
used in common with other tenants, caused by a tenant or the
employees, licensees or invitees of the tenant, shall be paid by
such tenant.
3. Landlord may refuse admission to the Building outside
of Business Hours on Business Days (as such terms are defined in
the lease to which these Rules and Regulations are annexed) to
any person not known to the watchman in charge or not having a
pass issued by Landlord or not properly identified, and may
require all persons admitted to or leaving the Building outside
of Business Hours on Business Days to register. Tenant's
employees, agents and visitors shall be permitted to enter and
leave the Building outside of Business Hours on Business Days
whenever appropriate arrangements have been previously made
between Landlord and the tenant with respect thereto. Each
tenant shall be responsible for all persons for whom it requests
such permission and shall be liable to Landlord for all acts or
omissions of such persons. Any person whose presence in the
Building at any time shall, in the judgment of Landlord, be
prejudicial to the safety of the Building or its tenants may be
denied access to the Building or may be ejected therefrom. In
case of invasion, riot, public excitement or other commotion
Landlord may prevent all access to the Building during the
continuance of the sane, by closing the doors or otherwise, for
the safety of the tenants and protection of property in the
Building.
<PAGE>
4. No tenant shall obtain or accept or use in its premises
towel, barbering, boot blacking, floor polishing, lighting
maintenance, cleaning or other similar services from any persons
not authorized by Landlord in writing to furnish such services,
provided that the charges for such services by persons authorized
by Landlord are comparable to charges for similar services in
other first-class office buildings in New York County. Such
services shall be furnished only at such hours, in such places
within the tenant's premises and under such regulations as may be
fixed by Landlord from time to time.
5. No awnings or other projections over or around the
windows shall be installed by any tenant and only such window
blinds as are supplied or permitted by Landlord shall be used in
a tenant's premises. No curtains, shades or screens shall be
attached to, or hung in or used in connection with any door of
tenant's premises, without the prior written consent of Landlord.
Such curtains, shades or screens shall be of a quality, type,
design and color and attached in a manner approved by Landlord.
6. There shall not be used in any space, or in the public
halls of the Building, either by tenants or by jobbers or others,
in the delivery or receipt of merchandise or mail any hand
trucks, except those equipped with rubber tires and side guards.
7. All entrance doors in each tenant's premises shall be
left locked when the tenant's premises are not in use. Entrance
doors shall not be left open at any time. Each tenant, before
closing and leaving its premises at any time, shall turn out all
lights. Blinds, which shall conform to Building Standard, shall
be installed and maintained on all windows in each tenant's
premises and all windows shall be kept closed at all times and
all blinds or drapes therein above the ground floor shall be
lowered or closed when and as reasonably required because of the
position of the sun, during the operation of the Building air
conditioning system to cool or ventilate the tenants' premises.
8. The sashes, sash doors, skylights, windows and doors
that reflect or admit light and air into the halls, passageways
or other public places in the Building shall not be covered or
obstructed by any Tenant, nor shall any bottles, parcels or other
articles be placed on the window sills or on the peripheral
air-conditioning enclosures, if any.
9. No showcases or other articles shall be put in front of
or affixed to any part of the exterior of the Building, nor
placed in the halls, corridors or vestibules
<PAGE>
10. No noise, including the playing of any musical
instruments, radio or television, which, in the judgment of
Landlord, might disturb other tenants in the Building shall be
made or permitted by any tenant and no cooking shall be done in
the tenant's premises except in any kitchen or dryer units
installed in the premises with Landlord's approval- Nothing shall
be done or permitted in any tenant's premises, and nothing shall
be brought into or kept in any tenant's premises, which would
impair or interfere with any of the Building services or the
proper and economic heating, cleaning or other servicing of the
Building or the premises, or the use or enjoyment by any other
tenant of any other premises, nor shall there be installed by any
tenant any ventilating, air conditioning, electrical or other
equipment of any kind which, in the judgment of Landlord, might
cause any such impairment or interference.
11. No dangerous, inflammable, combustible or explosive
object or material shall be brought into the Building by any
tenant or with the permission of any tenant, other than as may be
used as an incident to normal office use in connection with
photocopying equipment.
12. No tenant shall permit any cooking or food odors
emanating within its premises to seep into other portions of the
Building.
13. No acids, vapors or other materials shall be discharged
or permitted to be discharged into the waste lines, vents or
flues of the Building which may damage them. The water and wash
closets and other plumbing fixtures in or serving any tenant's
premises shall not be used for any purpose other than the purpose
for which they were designed or constructed and no sweepings,
rubbish, rags, acids or other foreign substances shall be
deposited therein. All damages resulting from any violation of
this rule shall be borne by the tenant who, or whose servants,
employees, agents, visitors or licensees, shall have caused the
same. Any cuspidors or containers or receptacles used as such in
the premises of any tenant or for garbage or similar refuse,
shall be emptied, cared for and cleaned by and at the expense of
such tenant.
14. No signs, advertisement, notice or other lettering
shall be exhibited, inscribed, painted or affixed by any tenant
on any part of the outside of the Building or inside the tenant's
premises if visible from outside of the tenant's premises without
the prior written consent of Landlord. Landlord shall not
unreasonably withhold consent to the installation of an
appropriate sign identifying Tenant in the entrance to the
premises. Interior signs and lettering on doors and elevators
shall be inscribed, painted, or affixed for each by Landlord at
the expense of such tenant, and shall be of a size, color and
style acceptable to Landlord. In the event of the violation of
the foregoing by any tenant, Landlord may remove the same without
any liability, and may charge the expense incurred in connection
with such removal to the tenant or tenants violating this rule.
Landlord shall have the right to prohibit any advertising by any
tenant which impairs the desirability of the Building as a
building for offices, and upon written notice from Landlord, the
tenant shall refrain from or discontinue such advertising.
<PAGE>
15. Additional locks or bolts of any kind which shall not
be operable by the Grand Master Key for the Building shall not be
placed upon any of the doors or windows by any tenant nor shall
any changes be made in locks or the mechanism thereof which shall
make such locks inoperable by the Grand Master Key. Duplicate
keys for a tenant's premises and toilet rooms shall be procured
only from Landlord, which may make a reasonable charge therefor.
Upon the termination of a tenant's lease, all keys of the
tenant's premises and toilet rooms shall be delivered to
Landlord.
16. No tenant shall mark, paint, drill into, or in any way
deface any part of the Building or (except for the tenant's
installation and normal decorating and the installation of
ordinary business office equipment) the premises demised to such
tenant. No boring, cutting or stringing of wires shall be
permitted, except with the prior written consent of Landlord, and
as Landlord may direct.
17. No tenant shall install any resilient tile or similar
floor covering in the premises demised to such tenant except in a
manner approved by Landlord.
18. No tenant or occupant shall engage or pay any employees
in the Building, except those actually working for such tenant or
occupant in the Building or advertise for laborers giving an
address at the Building.
19. No premises shall be used, or permitted to be used, at
any time, as a store for the sale or display of goods or
merchandise of any kind, or as a restaurant, shop, booth,
bootblack or other stand, or for the conduct of any business or
occupation which involved direct patronage of the general public
in the premises demised to such tenant, or for manufacturing or
for other similar purposes.
20. No bicycles, vehicles, animals, fish or birds of any
kind shall be brought into or kept in or about the premises of
any tenant or the Building.
21. The requirements of tenants will be attended to only
upon application at the office of the management agent of the
Building. Employees of Landlord shall not perform any work or do
anything outside of the regular duties unless under special
instructions from the office of Landlord.
<PAGE>
22. Each tenant shall, at its expense, provide artificial
light in the premises demised to such tenant for Landlord's
agents, contractors and employees while performing janitorial or
other cleaning services and making repairs or alterations in said
premises.
23. The tenant's employees shall not loiter around the
hallways, stairways, elevators, front, arcade, roof or any other
part of the Building used in common by the occupants thereof.
24. All removals, or the carrying in or out of any safes,
freight, furniture, packages, boxes, crates or any other object
or matter of any description must take place during such hours
and in such elevators and in such manner as Landlord or its agent
may determine from time to time. The persons employed to move
safes and other heavy objects shall be reasonably acceptable to
Landlord, and if so required by law, shall hold a Master Rigger's
license. Arrangements will be made by Landlord with any tenant
for moving large quantities of furniture and equipment into or
out of the Building. All labor and engineering costs incurred by
Landlord in connection with any moving specified in this rule,
shall be paid by the tenant to Landlord, on demand.
25. Landlord reserves the right to inspect all objects and
matter to be brought into the Building and to exclude from the
Building all objects and matter which violate any of these Rules
and Regulations or the lease to which this Schedule is attached.
Landlord may require any person leaving the Building with any
package or other object or matter to submit a pass, listing such
package or object or matter, from the tenant from whose premises
the package or object or matter is being removed, but the
establishment and enforcement of such requirement shall not
impose any responsibility on Landlord for the protection of any
tenant against the removal of property from the premises of such
tenant. Landlord shall in no way be liable to any tenant for
damages or loss arising from the admission, exclusion or ejection
of any person to or from the premises or the Building under the
provisions of this Rule.
26. No tenant shall occupy or permit any portion of its
premises to be occupied as an office for a public stenographer or
public typist, or for the possession, storage, manufacture, or
sale of narcotics, dope, tobacco in any form, or as a barber,
beauty or manicure shop, or as a school or employment bureau. No
tenant shall use its premises or permit any part thereof to be
used, for manufacturing, or the sale at retail or auction of
merchandise, goods or property of any kind.
<PAGE>
27. Landlord shall have the right to prohibit any
advertising or identifying sign by any tenant which, in
Landlord's judgment, tends to impair the reputation of the
Building or its desirability as a building for others, and upon
written notice from Landlord, such tenant shall refrain from and
discontinue such advertising or identifying sign.
28. Landlord shall have the right to prescribe the weight
and position of safes and other objects of excessive weight, and
no safe or other object whose weight exceeds the lawful load for
the area upon which it would stand shall be brought into or kept
upon any tenant's premises. If, in the judgment of Landlord, it
is necessary to distribute the concentrated weight of any heavy
object, the work involved in such distribution shall be done at
the expense of the tenant and in such manner as Landlord shall
determine.
29. No machinery or mechanical equipment other than
ordinary portable business machines may be installed or operated
in any tenant's premises without Landlord's prior written
consent, and in no case (even where the same are of a type so
excepted or as so consented to by Landlord) shall any machines or
mechanical equipment be so placed or operated as to disturb other
tenants; but machines and mechanical equipment which may be
permitted to be installed and used in a tenant's premises shall
be so equipped, installed and maintained by such tenant as to
prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such premises to any
other area of the Building.
30. Tenant, at its sole cost and expense, shall cause its
premises to be exterminated, from time to time, to the reasonable
satisfaction of Landlord, and shall employ such exterminators
therefor as shall be reasonably approved by Landlord.
31. No premises of any tenant shall be used for lodging or
sleeping or for any immoral or illegal purpose.
32. Canvassing, soliciting and peddling in the Building are
prohibited and each tenant shall cooperate to prevent the same.
33. Landlord reserves the right to rescind, alter or waive
any rule or regulation at any time prescribed for the Building
when, in its judgment, it deems it necessary, desirable or proper
for its best interest and for the best interests of the tenants,
and no alteration or waiver of any rule or regulation in favor of
one tenant shall operate as an alteration or waiver in favor of
any other tenant. Landlord shall not be responsible to any
tenant for the non-observance or violation by any other tenant of
any of the rules and regulations at any time prescribed for the
Building.
<PAGE>
Exhibit "A"
Landlord's Work
The Landlord's Work shall consist of the following items to
be performed by or on behalf of Landlord:
With respect to the Main Premises:
1. Repair the ceiling damage and paint the repaired
area.
2. Re-carpet the conference room and offices number 6
and 7 as set forth on the attached floor plan and
steam clean all carpeting in the Premises.
3. Provide and install a 20,000 BTU window installed
air cooled air conditioning unit and provide
appropriate electrical power, an outlet and a
switch.
4. Four (4) additional duplex outlets in office
number 7 as indicated on the attached plan of the
Main Premises, however, if Tenant elects to have
such outlets on a separate dedicated line, then
Tenant shall pay the cost of the segregated
dedicated line.
5. Paint all the finished walls and ceiling of the
Premises in Building standard colors using
Building standard materials.
<PAGE>
With respect to the Supplemental Premises:
1. Provide and install two (2) 15,000 BTU window
installed air cooled air conditioning unit and
provide appropriate electrical power, an outlet
and a switch for each unit.
2. New lens and bulbs for all existing light
fixtures.
3. Two (2) new thermalpane windows in accordance with
Building standard specifications.
4. Paint and carpet the entire Supplemental Premises
using Building standard materials in Building
standard colors.
With respect to all of the work set forth above, Tenant
shall select colors of paint and carpeting within ten (10) days
of Landlord's request to Tenant for such material selections.
<PAGE>
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