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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-SB/A
AMENDMENT NO. 2
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GENERAL FORM FOR REGISTRATION OF SECURITIES OF SMALL BUSINESS ISSUERS
UNDER SECTION 12(B) OR (G) OF THE SECURITIES EXCHANGE ACT OF 1934
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BEDFORD HOLDINGS, INC.
(Name of Small Business Issuer in Its Charter)
NEW JERSEY 13-3901466
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
90 WEST STREET
NEW YORK, NEW YORK 10005 10005
(Address of Principal Executive Offices) (Zip Code)
(212) 385-3600
(Registrant's Telephone Number, Including Area Code)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT: (None)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
Common Stock, without par value
(Title of Class)
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TABLE OF CONTENTS
PART I
Item 1 Description of Business...............................................3
Item 2 Management's Discussion and Analysis of Financial Condition and
Results of Operations.................................................9
Item 3 Description of Property..............................................15
Item 4 Security Ownership of Certain Beneficial Owners and Management.......15
Item 5 Directors, Executive Officers, Promoters and Control Persons.........16
Item 6 Executive Compensation...............................................16
Item 7 Certain Relationships and Related Transactions.......................17
Item 8 Description of Securities............................................17
PART II
Item 1 Market Price of and Dividends on the Registrant's Common Equity
and Other Shareholder Matters. ......................................18
Item 2 Legal Proceedings....................................................18
Item 3 Changes In and Disagreements With Accountants........................19
Item 4 Recent Sales of Unregistered Securities..............................19
Item 5 Indemnification of Directors and officers............................19
PART F/S
Financial Statements...........................................................1
PART III
Item 1 Index to Exhibits....................................................20
Item 2 Description of Exhibits,.............................................20
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PART I
ITEM I DESCRIPTION OF BUSINESS
BUSINESS
Bedford Holdings, Inc., (the "Company") was established in 1996 as a
holding company for Allen & Pierce Securities, Inc., a broker-dealer ("Allen &
Pierce"), and with a view toward acquiring other businesses. Allen & Pierce was
established by Mr. Leon Zapoll, a former Russian citizen, to engage in a general
securities and commodities brokerage business, and has been in business since
1989. Allen & Pierce is registered as a securities broker-dealer with the U.S.
Securities and Exchange Commission and as an introducing broker with the U.S.
Commodities Futures Trading Corporation.
With the disintegration of the former USSR and the opening of the Russian
economy in the early 1990s the Company saw an opportunity to take advantage of
Mr. Zapoll's language and knowledge of the countries of the former USSR to
develop a new source of brokerage business. Mr. Zapoll traveled extensively in
Russia and Uzbekistan in the early 1990s and was successful in developing a
significant number of new trading accounts which, over the next several years
yielded substantial commission revenues. With the turmoil in the Russian economy
of the mid to late 1990s Russian government severely restricted the ability of
Russian citizens to maintain securities and commodities trading accounts abroad.
These restrictions, coupled with substantial losses suffered by certain of the
Company's customers, resulted in a precipitous drop in the Company's commission
revenues. In 1997, seeking to replace the lost commission revenues, the Company
turned to commodities trading for its own account. However, in part because of
its limited capital, its trading activities generated losses rather than gains.
In late 1997 the Company began to develop a new business strategy. The first
prong of this strategy was designed to take advantage of the contracts Mr.
Zapoll had made through travels in the former USSR. Mr. Zapoll had found that in
both Russia and Uzbekistan privatization was creating a large number of private
business enterprises with one thing in common - -- a serious and immediate need
for capital. The strategy which the Company devised was to use the Company's
"window to Wall Street" as a broker-dealer to open access to the U.S. capital
market for these companies.
In October, 1997 the Company entered into an agreement with ZAO AO VENCO,
a privately held Russian company owning a stake of approximately 60% in a
privately owned Russian oil company which holds development rights to five oil
fields in Siberia. Under this agreement, the Company was to issue 52% of its
common stock to the President of ZAO AO VENCO in exchange for the shares it was
acquiring. In addition, the Company was to raise at least $35 million dollars to
finance the construction of a pipeline connecting the oil fields to the main
pipeline running through Siberia. The Company was unable to raise the required
financing, in part due to unsettled conditions in Russia, and in 1998 the
parties terminated that agreement by mutual consent.
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The countries of the former USSR vary widely in both social stability and
governmental attitudes toward outside investment. The Company has selected
Uzbekistan as having the most promising combination of business enterprises and
government policies toward outside capital. Uzbekistan is the third-largest of
the former USSR, and a major manufacturing center for the aircraft and
automotive industries, as well as being rich in natural resources. In early 1998
the Company began discussions with O'zsanoatqurilishbank, a substantially
privatized Uzbekistan bank ("SQ Bank") with a view toward creating an opening to
the U.S. capital markets for the bank and its customers.
In March, 1999 the Company entered into an Exchange Agreement under which
it offered to exchange shares representing 80% of its outstanding common stock
for the outstanding common shares of SQ Bank. If this exchange offer had been
successfully concluded, SQ Bank would have become a subsidiary of the Company,
and if all SQ Bank shareholders had accepted the offer the former shareholders
of SQ Bank would have owned 80% of the Company's stock.
In early May of 1999 the parties jointly determined that as a result of
various uncertainties in Uzbekistan, none of which related specifically to SQ
Bank, the exchange offer should be suspended for an indefinite period of time,
and that neither of the parties would have any further obligation under the
exchange agreement. The Company anticipates that if and when the various
uncertainties in Uzbekistan are resolved, the parties may reinstate the exchange
offer, but neither party is obligated to do so and no assurances can be given in
that regard.
The second prong of the Company's strategy is to take advantage of the
Company's unique characteristics to target certain niche markets in the
securities and commodities brokerage field in which the Company believes it has
a competitive advantage. The Company is in the process of installing an online
trading system. Unlike most smaller brokerage firms with an online presence, the
system being installed by the Company will provide for execution of both
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securities and commodities trades. The Web page will appear in four languages-
English, French, Russian and either German or Chinese. The Company believes that
in many cases high net worth individuals whose first language is not English,
and companies owned by such individuals, are more comfortable dealing in their
native language in financial matters and will find the Company's system
attractive. Initially the system will provide for transmission over the Internet
of customer orders to the Company's offices and immediate verification of the
customer's margin status. Thereafter, the actual trade will be executed by an
Allen & Pierce broker through telephone connection to the appropriate stock
exchange, commodities exchange or other market via telephone to the floor broker
or market maker. This system will allow direct supervision of the trades by a
responsible individual during the initial development of the system. It is
anticipated that at a later date execution will be fully automated.
The Company is currently in the process of making a final selection of the
vendor for its online trading system. Were the Company to buy the system
outright, the cost would be approximately $45,000 to $50,000. The Company
contemplates leasing the system, rather than buying it, under a lease which will
require payments of approximately $5,000 per month, which would include 2,000
trades per month. For trades exceeding 2,000 in any month, the charge to the
Company would be $1.50 per trade.
Pending installation of the online trading system, the Company has not
been actively pursuing new accounts. However, it has received on an unsolicited
basis, and executed, several orders from one U.S. customer. Aside from this
limited activity, the Company does not have any current source of revenues, and
does not anticipate having a source of current revenues until its online trading
system becomes operational.
COMPETITION
Securities Business
There is significant competition in all aspects of the securities
business. In addition to competition from firms currently in the securities
business, there has been increasing competition from other sources, such as
commercial banks and investment boutiques. As a result of pending legislative
and regulatory initiatives in the U.S. to remove or relieve certain restrictions
on commercial banks, it is anticipated that competition in some markets
currently dominated by investment banks and securities firms may increase in the
near future. Such competition could also affect the Company's ability to attract
and retain highly skilled individuals to conduct its businesses. The principal
competitive factors influencing the Company's business are expected to be its
existing client relationships, and its market capabilities. The Company's
ability to compete effectively in securities brokerage and investment banking
activities will also be influenced by the adequacy of its capital levels.
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EMPLOYEES
At June 30, 1999, the Company had 2 employees, Mr. Zapoll and Mr. Samila.
Both employees devote substantially all of their time during regular business
hours to the business of Bedford and its Allen & Pierce subsidiary. Until the
suspension of arrangements with SQ Bank, both were engaged primarily in
completing negotiations and contractual arrangements for that transaction.
Following suspension of the SQ Bank transaction, both employees have been
devoting their efforts toward development of the Company's proposed online
trading system, including planning, identifying vendors for that system and
negotiating terms for installation. The vendor the Company has tentatively
selected to provide the system requires that the Company's Allen & Pierce
subsidiary be registered as a broker-dealer in all 50 states, and this activity
is occupying significant amounts of management's time. See Item 5.
REGULATION
The Company's business and the securities industry in general are subject
to extensive regulation in the U.S. at both the Federal and state level, as well
as by industry Self Regulatory Organizations ("SROs"). A number of Federal
regulatory agencies are charged with safeguarding the integrity of the
securities and other financial markets and with protecting the interests of
customers participating in those markets. The Securities and Exchange Commission
("Commission") is the Federal agency that is primarily responsible for the
regulation of broker-dealers and investment advisers doing business in the U.S.,
and the Commodities Futures Trading Corporation ("CFTC") is primarily
responsible for the regulation of the futures business. In addition, the
Department of the Treasury and the Municipal Securities Rulemaking Board have
the authority to promulgate regulations relating to U.S. government and agency
securities and to municipal securities, respectively, and the Board of Governors
of the Federal Reserve System promulgates regulations applicable to securities
credit transactions involving broker-dealers and certain other U.S.
institutions. Broker-dealers and investment advisers are subject to registration
and regulation by state securities regulators in those states in which they
conduct business. Industry SROs, each of which has authority over the firms that
are its members, include the NASD, the NYSE and other securities exchanges, the
National Futures Association (the "NFA") and the commodities exchanges.
Allen & Pierce is registered as a broker-dealer with the Commission and is
a member of, and subject to regulation by, a number of securities industry SROs,
including the NASD. Allen & Pierce is also registered as a broker-dealer in New
York, and as an introducing broker with the CFTC.
As a result of registration and SRO memberships, U.S. Broker-Dealers are
subject to overlapping schemes of regulation which cover all aspects of their
securities business. Such regulations cover matters including capital
requirements, the use and safekeeping of customers' funds and securities, record
keeping and reporting requirements, supervisory and organizational procedures
intended to assure compliance with securities laws and rules of the SROs and to
prevent the improper trading on "material nonpublic" information,
employee-related matters, limitations on extensions of credit in securities
transactions, and clearance and settlement procedures. A particular focus of the
applicable regulations concerns the relationship between broker-dealers and
their customers. As a result, the U.S. Broker-Dealers in some instances may
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be required to make "suitability" determinations as to certain customer
transactions, are limited in the amounts that they may charge customers, cannot
trade ahead of their customers and must make certain required disclosures to
their customers.
Allen & Pierce Securities, as a registered introducing broker, is subject
to the capital and other requirements of the CFTC under the Commodity Exchange
Act. These requirements include the provision of certain disclosure documents,
prohibitions against trading ahead of customers and other fraudulent trading
practices, provisions as to the handling of customer funds and reporting and
record keeping requirements.
U.S. Broker-Dealers are also subject to "Risk Assessment Rules" imposed by
the Commission and by the CFTC. These rules require, among other things, that
certain broker-dealers and introducing brokers maintain and preserve certain
information, describe risk management policies and procedures and report on the
financial condition of certain affiliates whose financial and securities
activities are reasonably likely to have a material impact on the financial and
operational condition of the broker-dealers or introducing brokers. Affiliates
of the U.S. Broker-Dealers and the activities conducted by such affiliates may
not be subject to regulation by the Commission or the CFTC. However, the
possibility exists that, on the basis of the information that they obtain from
the Risk Assessment Rules, the Commission or CFTC could seek legislative or
regulatory changes in order to expand their authority over the Company's
unregulated activities either directly or through their existing authority over
the Company's regulated subsidiary.
Additional legislation and regulations, including those relating to the
activities of affiliates of broker-dealers, changes in rules promulgated by the
Commission, the CFTC or other U.S. or foreign governmental regulatory
authorities and SROs or changes in the interpretation or enforcement of existing
laws and rules may adversely affect the manner of operation and profitability of
the Company. Among other things, the SEC has recently become active in the
enforcement of its regulations in the area of online trading activities in an
effort to curb various abuses which have occurred in that area. It may be
anticipated that such enforcement will continue or increase, and that additional
regulations may be adopted, some of which could adversely affect the Company's
plans to move into this area.
The Company's businesses may be materially affected not only by
regulations applicable to it as a financial market intermediary, but also by
regulations of general application. For example, the volume of the Company's
proposed investment banking businesses in any year could be affected by, among
other things, existing and proposed tax legislation, antitrust policy and other
governmental regulations and policies (including the interest rate policies of
the Federal Reserve Board) and changes in interpretation or enforcement of
existing laws and rules that affect the business and financial communities.
NET CAPITAL REQUIREMENTS
As a broker-dealers registered with the Commission, Allen & Pierce
Securities is subject to the capital requirements of the Commission. These
capital requirements specify minimum
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levels of capital, computed in accordance with regulatory requirements ("net
capital"), that the U.S. Broker-Dealers are required to maintain and also limit
the amount of leverage that the U.S. Broker-Dealers are able to obtain in their
businesses. As an introducing broker, Allen & Pierce is also subject to the
capital requirements of the CFTC.
Under the method selected by Allen & Pierce for computing its net capital
requirements, it is required by the Commission to maintain regulatory net
capital, computed in accordance with the Commission's regulations, equal to the
lesser of $100,00 or 6 2/3% of Aggregate Indebtedness calculated in accordance
with Commission regulations. Further, under CFTC and CBOT capital regulations,
Allen & Pierce Securities must maintain capital in an amount equal to at least
the lesser of $30,000 or $3,000 per associated person. For purposes of the net
capital requirements, Allen & Pierce Securities is treated as a separate entity,
and not consolidated with Bedford Holdings. The following table sets forth
selected financial data for Allen & Pierce Securities as a separate entity as
of, and for the three months ended, March 31, 1999.
Current Assets $205,549
Total liabilities 2,000
Long-term assets 8,451
Fixed assets 100,910
Accumulated depreciation 62,900
Interest income 168
Other expenses 45,274
Net loss (45,106)
"Net capital" is essentially defined as net worth (assets minus
liabilities, as determined under generally accepted accounting principles), plus
qualifying subordinated borrowings, less the value of all of a broker-dealer's
assets that are not readily convertible into cash (such as goodwill, furniture,
prepaid expenses, exchange seats and unsecured receivables), and further reduced
by certain percentages (commonly called "haircuts") of the market value of a
broker-dealer's positions in securities and other financial instruments.
A failure by a U.S. Broker-Dealer to maintain its minimum required capital
would require it to cease executing customer transactions until it came back
into capital compliance, and could cause it to lose its right to registration
with the Commission or CFTC, or require its liquidation. Further, the decline in
a U.S. Broker-Dealer's net capital below certain "early warning levels," even
though above minimum capital requirements, could cause material adverse
consequences to the firm. For example, the Commission's capital regulations
prohibit payment of dividends, redemption of stock and the prepayment of
subordinated indebtedness if a broker-dealer's net capital thereafter would be
less than 120% of the minimum dollar amount required and prohibit principal
payments in respect of subordinated indebtedness if a broker-dealer's net
capital thereafter would be less than 120% of the minimum dollar amount required
or $36,000 or $4,500 per associated person.
The Commission's capital rules also (i) require that the U.S.
broker-dealers notify the Commission and, the CFTC, in writing, two business
days prior to making withdrawals or other distributions of equity capital or
lending money to certain related persons, if those withdrawals would exceed, in
any 30 day period, 30% of the broker-dealer's excess net capital and that they
provide such notice within two business days after any such withdrawal or loan
that would exceed, in any 30 day period, 20% of the broker-dealer's excess net
capital, (ii) prohibit a U.S. broker-dealer from withdrawing or otherwise
distributing equity capital or making related party loans if after such
distribution or loan, the U.S. broker-dealer has net capital of less than 120%
of the minimum dollar amount required and in certain other circumstances, and
(iii) provide that the Commission may, by order, prohibit withdrawals of capital
from the U.S. broker-dealers for a period of up to 20 business days, if the
withdrawals would exceed, in any 30 day period, 30% of the broker-dealer's
excess net capital and the Commission believes such withdrawals would be
detrimental to the financial integrity of the firm or would unduly jeopardize
the broker-dealer's ability to pay its customer claims or other liabilities.
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Compliance with regulatory capital requirements could limit those
operations of Allen & Pierce that require the intensive use of capital, such as
trading activities, and the financing of customer account balances, and also
could restrict the Company's ability to withdraw capital from Allen & Pierce,
which in turn could limit the Company's ability to pay dividends, pay interest,
repay debt, and redeem or purchase shares of its outstanding capital stock.
The Company believes that at all times Allen & Pierce has been in
compliance in all material respects with the applicable minimum capital rules of
the Commission, and the CFTC except for one instance in 1992 when Allen & Pierce
was assessed a modest penalty by the NASD for violation of its net capital
rules. As of March 31, 1999, Allen & Pierce Securities was required to maintain
minimum "net capital," in accordance with Commission and CFTC rules, of
approximately $100,000 and had total net capital of $203,549.
YEAR 2000 DISCLOSURE
The Company in its securities and commodities transactions acts as an
introducing broker. Actual transaction records are prepared by its clearing
broker. The Company's brokerage operations are also dependent upon continuing
quotation information provided by E.D.F. Man International, and on the
availability of financial information provided by Bloomberg L.P. Since the
Company is entirely dependent on outside vendors with respect to these portions
of its operations, there can be no assurance that the necessary modifications
and conversions by the vendors will be adequate or completely thorough. In view
of the Company's extremely limited operations currently and its expected limited
activities until installation of its online trading system is completed, the
Company does not believe that failure of any of its current vendors to complete
necessary modifications and conversions would have a material effect on its
operations, and it is not taking, and does not intend to take, any actions to
obtain assurance that these vendors will become Year 2000 compliant in a timely
fashion. Failure of either of these vendors to become compliant in a timely
fashion would require the Company to delay implementation of its online trading
system until compliance is achieved. The Company does not have any contingency
plans to deal with any possible failure by E.D.F Man International or Bloomberg
LP to become Year 2000 compliant, and does not have any intention of developing
such plans aside from keeping abreast of developments in the brokerage industry
in this area through trade publications and trade associations. The Company will
select a vendor for its online trading system only if it receives adequate
assurances from the vendor that the new system will be Year 2000 compliant. The
total cost to the Company associated with the required modifications and
conversions are not expected to be material to the Company's results of
operations and financial position and are being expensed as incurred.
ITEM 2 - MANAGEMENT'S DISCUSSION OF ANALYSTS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion contains certain forward-looking statements that
are subject to business and economic risks and uncertainties, and the Company's
actual results could differ materially from those forward-looking statements.
The following discussion regarding the financial statements of the Company
should be read in conjunction with the financial statements and notes thereto.
OVERVIEW
The Company is a holding company for Allen & Pierce, a securities and
commodities broker which was established in 1989 by Mr. Leon Zapoll, a former
Russian citizen, and Mr. Robert Samila, to engage in a general securities and
commodities brokerage business. For its initial two years, Allen & Pierce
carried out a general securities and commodities brokerage
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business. With the disintegration of the former USSR and the opening of the
Russian economy in the early 1990s the Company saw an opportunity to take
advantage of Mr. Zapoll's language and knowledge of the former USSR to develop a
new source of brokerage business. Mr. Zapoll traveled extensively in Russia and
Uzbekistan in the early 1990s and was successful in developing a significant
number of new trading accounts which, over the next several years yielded
substantial commission revenues. With the turmoil in the Russian economy of the
mid to late 1990s Russian government prohibited Russian citizens from
maintaining securities and commodities trading accounts abroad. This
restriction, coupled with substantial losses suffered by certain of the
Company's customers, resulted in a precipitous drop in the Company's commission
revenues. In 1997, seeking to replace the lost commission revenues, the Company
turned to commodities trading for its own account. However, in part because of
its limited capital, its trading activities generated losses rather than gains.
In late 1997 the Company began to develop a new business strategy designed to
take advantage of the contracts Mr. Zapoll had made through his earlier travels
in the former USSR.
RESULTS OF OPERATIONS
Revenues declined from $120,580 for the year ended December 31, 1997 to
($219,011) for the fiscal year ended December 31, 1998. The primary factors
contributing to this decline were the reduction in commission revenues and
interest income. The Company's commission revenues declined from $348,480 in
1997 to $0 in 1998. This decline was due to the complete absence in 1998 of any
brokerage transactions as a result primarily of the cessation of exchange
futures and other commodities trading in the U.S. by its customers in the states
of the former USSR. Interest income declined from $26,681 in 1997 to $1,205 in
1998 because market losses reduced the amount of funds on deposit. In late 1997
the Company, in an effort to offset the reduced commission revenues, began
proprietary trading for its own account. It incurred losses in such trading of
$254,581 in 1997 and $220,216 in 1998, a decrease of 13.5%. As of the first
quarter of 1999 the Company had ceased proprietary trading for its own account,
and does not contemplate any such trading in the future. The Company is not
presently soliciting new brokerage accounts pending completion of the
installation of its online trading system. Its only source of revenue is limited
amounts of brokerage commissions generated through unsolicited orders of one
substantial customer. This situation is expected to continue until installation
of the proposed online trading system has been completed. The Company expects
that this will occur by the end of calendar 1999.
Expenses increased by 6% from $362,907 to $384,846 for the fiscal years
ended December 31, and 1997 and 1998, respectively. The increase was due to a
46% increase in salary expense, as the Company's President had taken no salary
in 1997 and took a $10,200 salary in 1998, and $9,273 in interest expense
incurred for the fiscal year ended December 31, 1998 as a result of the
short-term borrowings referred to below.
The Company ceased its trading operations for its own account in January
of 1999, resulting in a reduction in the trading loss for the quarter ended
March 31, 1999 from ($121,087) to ($4,874). Interest expense of $16,994 for the
quarter ended March 31, 1999 was the result of the short term borrowing
described below. The Company had not done any such borrowing in the quarter
ended March 31, 1998.
LIQUIDITY AND CAPITAL RESOURCES
The increase in total assets from $296,168 as of December 31, 1997 to
$1,879,229 as of December 31, 1998 reflects primarily borrowed funds. The
elimination of commission revenues commencing in mid-1997 severely impacted the
Company's liquidity. In order to sustain its operations while the Company began
implementing its new business strategy, the Company found it necessary to resort
to short-term borrowing. During the period from April, 1998 through
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January 31, 1999, the Company issued unsecured promissory notes in an aggregate
principal amount of approximately $2.2 million to 6 accredited investors,
including one corporation and 5 individuals. The terms of these notes ranged
from 1 month through 1 year and the notes bore interest at prime except for
$25,000 in principal amount which bore interest at 20%. As of December 31, 1998
the aggregate amount of such notes outstanding was $2,191,531. The increase in
the Company's cash position from $40,982 as of December 31, 1997 to $1,760,372
was due entirely to such borrowing. The 66% decline in receivables from brokers
(representing cash held by the Company's clearing broker and one broker abroad)
was the result of the decline in the Company's commission business.
During the quarter ended March 31, 1999 the Company repaid a substantial
amount of the short term borrowing it had done during the year ended December
31, 1998, reducing the amount of its short-term loans payable from $2,191,531 to
$661,561. The bulk of these funds had been retained in the Company's bank
account, and repayment of the loans was made from this source. The Company
determined that in view of its having ceased trading for its own account the
proceeds of these additional borrowings were not required for liquidity
purposes.
As of March 31, 1999 the Company's liquidity position was precarious. In
the absence of substantial additional revenues, or the raising of additional
capital, the Company's ability to continue operations is dependent upon the
willingness of its short-term lenders to continue rolling over their loans to
the Company. There can be no assurance that these lenders will continue to renew
their loans. If any substantial portion of such lenders were to require payment
in full of such loans the Company would not be a position to make additional
equity investments or subordinated loans to maintain the net capital
requirements of Allen & Pierce Securities, Inc. and would be forced to terminate
its operations as a broker-dealer, which would severely impact the Company's
ability to carry out its plan of operations and to continue as a going concern.
ITEM 3 - DESCRIPTION OF PROPERTY
The Company's offices are presently located at 90 West Street, New York,
New York and occupy approximately 1,800 square feet under a lease currently
extending through 1999. The Company believes this space will be sufficient for
its operations for the foreseeable future. The Company's requirements are
limited to general-purpose office space, and the Company believes that at the
present time such space is readily available in downtown New York.
ITEM 4 - SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, as of June 30, 1999, certain information
with respect to the Company's equity securities believed by the Company to be
owned of record or beneficially by (i) each Director of the Company; (ii) each
person who owns beneficially more than 5% of each class of the Company's
outstanding equity securities; and (iii) all Directors and Executive Officers as
a group.
<TABLE>
<CAPTION>
Title of Class Name and Address of Beneficial Owner Number of Shares % of Class
- -------------- ------------------------------------ ---------------- ----------
<S> <C> <C> <C>
Common Stock Leon Zapoll 20 million 94.1%
36 Wescott St.
Old Tappan, NJ 07675
Common Stock Robert Samila -- --
617 Salem Road
Union, NJ 07083
All Officers
and Directors as
a group 20 million 94.1%
</TABLE>
The beneficial owners of securities listed above have sole investment and
voting power with respect to such shares. Beneficial ownership is determined in
accordance with the rules of the Commission and generally includes voting or
investment power with respect to securities. Shares of stock subject to options
or warrants currently exercisable, or exercisable within 60 days, are deemed
outstanding for purposes of computing the percentage of the person holding such
options or warrants, but are not deemed outstanding for purposes of computing
the percentage of any other person.
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ITEM 5 - DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS
The following table sets forth the names and ages of the current directors
and executive officers of the Company, the principal offices and positions with
the Company held by each person and the date such person became a director or
executive officer of the Company. The executive officers of the Company are
elected annually by the Board of Directors. The directors serve one year terms
and until their successors are elected. The executive officers serve terms of
one year or until their death, resignation or removal by the Board of Directors.
Name Age Positions Date became director or
executive officer
Leon Zapoll 48 President and Director July 1996
Robert Samila 57 Chief Financial Officer, Secretary, July 1996
Treasurer and Director
There are no family relationships between any of the directors and
executive officers. There was no arrangement or understanding between any
executive officer and any other person pursuant to which any person was selected
as an executive officer.
LEON ZAPOLL. Mr. Zapoll has been the President of the Company or Allen &
Pierce Securities, its predecessor, since 1989. He became an officer and
director of the Company upon its organization as a holding company in 1996, and
is licensed by the Commodities Futures Trading Corporation as a commodities
principal and an associated person.
ROBERT SAMILA. Mr. Samila has been the Chief Financial Officer of the
Company or Allen & Pierce Securities, its predecessor, since 1989. He became an
officer and director of the Company upon its organization as a holding company
in 1996. Prior to that time he was employed in various capacities by a number of
firms in the securities industry, and as an examiner for the National
Association of Securities Dealers, Inc. He is qualified as a general securities
principal, financial operations principal, registered options principal, and
municipal bond principal, and is licensed by the Commodities Futures Trading
Corporation as a supervising sole principal, associated person and commodities
principal. He is registered as a Branch Manager with the New York Stock Exchange
and was in the past an Allied Member of the American Stock Exchange. He is
currently licensed as a salesperson in the state of New York and as in the past
been licensed in a number of other states. He holds a bachelor's degree in
Business Administration from Seton Hall University.
ITEM 6 EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
The Summary Compensation Table shows certain compensation information for
services rendered in all capacities during each of the prior three (3) fiscal
years. No bonuses or stock options were granted and no additional compensation
was paid or deferred.
12
<PAGE>
Annual compensation
<TABLE>
<CAPTION>
OTHER RESTRICTED SECURITIES
NAME AND PRINCIPAL ANNUAL STOCK UNDERLYING
POSITION YEAR SALARY BONUS COMPENSATION AWARDS OPTIONS/SARs
<S> <C> <C> <C> <C> <C> <C>
Leon Zapoll, President 1998 10,200 0 0 0 0
1997 -- 0 0 0 0
1996 --* 0 0 0 0
Robert Samila Chief Financial 1998 $22,100 0 0 0 0
Officer, Treasurer and
Secretary
1997 $22,100 0 0 0 0
1996 $22,100 0 0 0 0
</TABLE>
* Prior to August, 1996, Allen & Pierce Securities, Inc. operated as an S
Corporation; Mr. Zapoll was its sole shareholder. It showed a loss for the 1996
partial year.
COMPENSATION OF DIRECTORS
No Director receives or has received any compensation from the Company for
service as a member of the Board of Directors.
ITEM 7 - CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Not applicable.
ITEM 8 - DESCRIPTION OF SECURITIES
COMMON STOCK
The Company's Certificate of Incorporation authorizes the issuance of 40
million shares of Common Stock, without par value, of which 21,243,000 shares
were issued and outstanding as of June 30, 1999. Holders of shares of Common
Stock are entitled to one vote for each, share on all matters to be voted on by
the shareholders. Holders of Common Stock have no cumulative voting rights.
Holders of shares of Common Stock are entitled to share ratably in dividends, if
any, as may be declared, from time to time by the Board of Directors in its
discretion, from funds legally available therefor. In the event of a
liquidation, dissolution or winding up of the Company, the holders of shares of
Common Stock are entitled to share pro rata all assets remaining after payment
in full of all liabilities. Holders of Common Stock have no preemptive rights to
purchase the Company's common stock. There are no conversion rights or
redemption or sinking fund provisions with respect to the common stock. All of
the outstanding shares of Common Stock are fully paid and non-assessable.
TRANSFER AGENT
The Company's transfer agent is the American Securities Transfer Inc.
division of Wells Fargo.
13
<PAGE>
PART II
ITEM I - MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY AND
OTHER SHAREHOLDER MATTERS
MARKET INFORMATTON
The Company's Common Stock is quoted under the symbol "BFHI" on the NASDAQ
Electronic Bulletin Board. The following table sets forth the high and low bid
prices for shares of the Company Common Stock for the periods noted, as reported
by the NASD. NASDAQ Bulletin Board. Quotations reflect inter dealer prices,
without retail markup, mark down or commission and may not represent actual
transactions.
BID PRICES
YEAR PERIOD HIGH LOW
1997 Third Quarter $0.825 $0.25
Fourth Quarter $1.125 $0.60
1998 First Quarter $0.625 $0.625
Second Quarter $1.125 $0.625
Third Quarter $1.125 $0.688
Fourth Quarter $2.875 $2.25
1999 First Quarter $2.25 $0.438
Second Quarter $2.25 $1.00
The Company's securities were not publicly traded prior to August, 1997.
As of June 15, 1999 the reported bid price for the Company's common stock was
$2.00 per share.
SHAREHOLDERS
As of June 30, 1999, the Company had 21,243,500 shares of Common Stock
outstanding held by 10 shareholders of record.
DIVIDENDS
The Company has not paid cash dividends on its Common Stock in the past
and does not anticipate doing so in the foreseeable future.
ITEM 2 - LEGAL PROCEEDINGS
The Company is not currently involved in any litigation.
14
<PAGE>
ITEM 3 CHANGES IN AND DISAGREEMENTS WTTH ACCOUNTANTS
Effective July, 1996 Donahue Associates, Inc., Certified Public
Accountants, were engaged by the Company as their principal accountant to audit
the Company's financial statements. There have been no changes in accountants or
disagreements of the type required to be reported under this Item 3 between the
Company and its independent auditors since their date of engagement, nor during
the Company's two most recent fiscal years or any later interim period.
ITEM 4 RECENT SALES OF UNREGISTERED SECURITIES
In July of 1996, the Company issued 20 million shares of its Common Stock
to Mr. Zapoll in exchange for all of the outstanding capital stock of Allen &
Pierce Securities, and completed an offering of 1.2 million shares of its Common
Stock at a price of $0.25 per share to a total of 2 accredited investors and 17
non-accredited investors. Aggregate proceeds of that offering were $300,000. The
sales were made in reliance on the Commission's Rule 504 under the Securities
Act of 1933, as amended.
During the period from April, 1998 through January 31, 1999, the Company
issued unsecured promissory notes in an aggregate principal amount of $2,191,531
to 6 accredited investors, including 1 corporation and 5 individuals. The terms
of these notes ranged from 1 month through 1 year and the notes bore interest at
prime. These notes were issued in reliance on the exemption of Section 4(2) of
the Securities Act of 1933, as amended. The Company also issued a similar
unsecured promissory note in the amount of $25,000 and bearing interest at 20%
to one individual who, it later determined, was not an accredited investor.
Based on discussions with this investor and knowledge of his prior stock market
activities, the Company believes that he was a sophisticated investor, and the
Company's management made itself available to answer questions and made
available to him such information about the Company and the investment as he
requested. However the Company was unable to document the exemption it believed
was available and accordingly, rather than leave the issue open the Company
repaid the loan with interest immediately upon determining that the investor was
not accredited.
In 1997, the Company issued 6 million shares of its common stock to SQ
Bank as a good faith deposit based on the assumption that the two companies
would merge. Since the parties subsequently negotiated a different arrangement,
those shares were canceled by mutual agreement in March, 1999.
ITEM 5 - INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation laws of the State of New jersey and the Company's
Certificate of Incorporation provide for indemnification of the Company's
Directors for liabilities and expenses that they may incur in such capacities.
In general, Directors and Officers are indemnified with respect to actions taken
in good faith in a manner reasonably believed to be in, or not opposed to, the
best interests of the Company, and with respect to any criminal action or
proceeding, actions that the indemnitee had no reasonable cause to believe were
unlawful. The personal liability of the Directors is also limited as provided in
the Company's Certificate of Incorporation.
PART F/S
FINANCIAL STATEMENTS
The Financial Statements required by this Item are included at the end of
this report beginning on Page F1.
15
<PAGE>
BEDFORD HOLDINGS, INC..
CONSOLIDATED FINANCIAL STATEMENTS
As of and for the Years ended
December 31, 1998 and 1997 and the Quarter ended March 31, 1999 and 1998
(Unaudited)
BEDFORD HOLDINGS, INC.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Report of Independent Auditors.................................................1
Consolidated Financial Statements of Bedford Holdings, Inc. and subsidiary:
Consolidated statement of Financial Condition as of December 31, 1998
and December 31, 1997, and March 31, 1999 (Unaudited)................2
Consolidated Statements of Operations for the years ended
December 31, 1998 and 1997 and the quarters ended March 31, 1999
and 1998 (Unaudited)
Consolidated Statements of Shareholders' Equity (Deficit) for the years
ended December 31, 1998 and 1997 and the quarter ended
March 31, 1999.......................................................3
Consolidated Statements of Cash flows for the years ended
December 31, 1998 and 1997 and the quarters ended March 31, 1999
and 1998 (Unaudited).................................................4
Notes to Consolidated Financial Statements.............................5
F-1
<PAGE>
DONAHUE ASSOCIATES, INC.
CERTIFIED PUBLIC ACCOUNTANTS
353 Main Street, Chatham, NJ. 07928 (973) 635-2111
INDEPENDENT AUDITORS REPORT
The Shareholders Bedford Holdings Inc.
We have audited the accompanying balance sheets of Bedford Holdings Inc.
as of December 31, 1998 and December 31, 1997 and the related statements of
income and change in owners' equity, and cash flows for the fiscal years ended
December 31, 1998 and December 31, 1997. These financial statements are the
responsibility of management. Our responsibility is to express an opinion on
these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements presented are free
from 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 the management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Bedford Holdings Inc. as of
December 31, 1998 and December 31, 1997 and the results of operations and cash
flows for the fiscal years ended December 31, 1998 and December 31, 1997 in
conformity with generally accepted accounting principles consistently applied.
Brian Donahue
Chatham, NJ.
March 7, 1999
F-2
<PAGE>
BEDFORD HOLDINGS INC. AND SUBSIDIARY
CONSOLIDATED STATEMENT OF FINANCIAL CONDITION AS OF DECEMBER 31,1998 AND
DECEMBER 31, 1997 AND MARCH 31, 1999 (UNAUDITED)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31 QUARTER ENDED MARCH 31
----------------------- ----------------------
1998 1997 1999
<S> <C> <C> <C>
ASSETS
Cash $ 1,760,372 $ 40,982 $ 206,045
Receivables from Brokers 66,796 195,295 10,423
Fixed Assets (net of accumulated
depreciation of $62,899) 38,010 52,144 35,050
Other Assets 14,051 7,747 14,051
----------- --------- -----------
Total Assets $ 1,879,229 $ 296,168 $ 265,569
----------- --------- -----------
LIABILITIES AND SHAREHOLDERS' EQUITY
Accounts payable and accrued expenses $ 8,405 $ 12,518 $ 2,000
Short term loans payable 2,191,531 0 661,561
Common Stock, nonpar value, 40,000,000 shares
authorized 27,250,000 shares issued and
27,243,500 outstanding stated value $.001 per
share, including 6,500 shares of treasury stock 27,243 27,243 27,243
Treasury Stock (6,500) (6,000) (6,500)
Contributed Capital in excess of stated value 963,445 963,445 963,445
Retained Deficit (1,304,895) (701,038) (1,382,180)
----------- --------- -----------
Total Liabilities and Shareholders' Equity $ 1,879,229 $ 296,168 $ 265,569
----------- --------- -----------
</TABLE>
Please see accompanying notes to these financial statements.
F-3
<PAGE>
BEDFORD HOLDINGS INC. AND SUBSIDIARY
CONSOLIDATED STATEMENT OF OPERATIONS FOR THE YEARS ENDING DECEMBER 31,1998
AND DECEMBER 31, 1997 AND FOR THE QUARTERS ENDED
MARCH 31, 1999 AND MARCH 31, 1998 (UNAUDITED)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31 QUARTER ENDED MARCH 31
------------------------ --------------------------
1998 1997 1999 1998
<S> <C> <C> <C> <C>
Revenues
Commissions $0 $ 348,480 $ 0 $ 0
Interest 1,205 26,681 167 194
Trading Loss (220,216) (254,581) (4,874) (121,087)
---------- ----------- ----------- -----------
Total Revenues ($219,011) $ 120,580 (4,706) (120,893)
Expenses:
Salaries 32,300 22,100 5,525 5,525
General administrative 329,843 327,377 47,100 55,226
Interest expense 9,273 0 16,994 0
Depreciation 13,430 13,430 2,960 2,960
---------- ----------- ----------- -----------
Total expenses 384,846 362,907 72,579 63,711
---------- ----------- ----------- -----------
Net Loss ($603,857) ($242,327) ($77,285) ($184,604)
---------- ----------- ----------- -----------
Earnings per common share:
Basic: ($0.02) ($0.01) ($0.01) ($0.01)
Diluted ($0.02) ($0.01) ($0.01) ($0.01)
Weighted Average of common shares:
Basic 27,243,500 27,244,000 21,243,500 27,243,500
Diluted 27,243,500 27,244,000 21,243,500 27,243,500
</TABLE>
Please see accompanying notes to these financial statements.
F-4
<PAGE>
BEDFORD HOLDINGS INC. AND SUBSIDIARY
CONSOLIDATED STATEMENT OF CASH FLOWS FOR THE YEARS ENDING DECEMBER 31,1998
AND DECEMBER 31, 1997 AND FOR THE QUARTER ENDED
MARCH 31, 1999 AND MARCH 31, 1998 (UNAUDITED)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31 QUARTER ENDED MARCH 31
------------------------ ------------------------
1998 1997 1999 1998
<S> <C> <C> <C> <C>
Cash flows from Operating Activities:
Net Income ($603,857) ($242,328) ($77,285) ($184,604)
Adjustments to reconcile net income to cash provided
by operating activities; add back depreciation expense 13,341 13,341 2,960 2,960
---------- ---------- ---------- ----------
Net cash used by operating activities (590,516) (228,987) (74,325) (181,644)
Cash flows from operating activities:
Decrease in broker receivable 128,499 82,631 (56,373) 34,091
Decrease in accounts payable (4,113) 621 (6,405) (12,406)
Increase in other assets (6,304) 3,421 0 0
Increase in short term loans payable 2,191,531 92 (1,529,970) 254,500
** 1 Write off of residual fixed asset 793
---------- ---------- ---------- ----------
Net cash provided by operating activities 2,309,613 86,765 (1,630,002) 276,185
Cash flows from financing activities:
Purchase of treasury stock (See Note 2) (500) (6,000)
---------- ---------- ---------- ----------
Net cash (used) provided by financing activities (500) (6,000) 0 0
---------- ---------- ---------- ----------
Net increase (decrease) in cash 1,719,390 (148,222) (1,704,327) 94,541
Cash balance at beginning of period 40,982 189,204 1,760,372 40,982
---------- ---------- ---------- ----------
Cash balance at end of period $1,760,372 $40,982 $206,045 $135,523
========== ========== ========== ==========
Supplemental disclosures of cash flow information:
Cash paid during the year for:
Interest -0- -0-
Taxes -0- -0-
</TABLE>
Please see accompanying notes to these financial statements.
F-5
<PAGE>
BEDFORD HOLDINGS, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE QUARTER ENDED MARCH 31, 1999 (UNAUDITED) AND FOR THE YEARS
ENDING DECEMBER 31, 1998 AND DECEMBER 31, 1997
<TABLE>
<CAPTION>
Common Contributed Treasury Retained Total
Stock Capital Stock Earnings Capital
------- ----------- -------- -------- -------
<S> <C> <C> <C> <C> <C>
Balance at January 1, 1997 $21,200 $969,488 ($0) ($458,710) $ 531,978
Purchase of Treasury Stock (See Note 2) (6,000)
Net loss (242,328)
-------- -------- ------- ----------- ----------
Balance at December 31, 1997 $21,200 $969,488 ($6,000) ($701,038) ($283,650)
======== ======== ======= =========== ==========
Purchase of Treasury Stock (See Note 2) (500) (500)
Net loss (603,857) (603,857
-------- -------- ------- ----------- ----------
Balance at December 31, 1998 $21,200 $969,488 ($6,500) ($1,304,895) ($320,707)
======== ======== ======= =========== ==========
Net Income (loss) (77,285) (77,285)
-------- -------- ------- ----------- ----------
Balance at March 31, 1999 $27,243 $963,445 ($6,500) ($1,382,180) ($397,992)
======== ======== ======= =========== ==========
</TABLE>
Please see accompanying notes to these financial statements.
F-6
<PAGE>
BEDFORD HOLDINGS INC.
NOTES TO THE FINANCIAL STATEMENTS AS OF DECEMBER 31,1998 AND
DECEMBER 31, 1997
NOTE 1: ORGANIZATION
Bedford Holdings, Inc. (the Company) is a New Jersey State Corporation
formed in July, 1996 for the purpose of purchasing and holding the common stock
of various companies for investment.
NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICTFS
Principles of Consolidation. The consolidated financial statements include
the accounts of Bedford Holdings Inc. and its wholly owned subsidiary, Allen &
Pierce Securities Inc. All significant intercompany accounts and transactions
have been eliminated in consolidation.
Furniture and Fixtures. Firm assets are stated at costs and depreciation
is computed on a straight line basis over the estimated useful life of the
underlying assets, which range from 3 to 10 years. All major additions are
capitalized. Maintenance, repairs, and minor improvements are expensed as
incurred.
Treasury Stock. The Company uses the cost method in the recording of the
purchase of treasury stock. During 1998 and 1997 the Company purchased 500
shares and 6,000 shares, respectively, of its common stock for its own account.
Short term loans payable: During 1998, the Company entered into unsecured
loan agreements with various individuals. All the loans mature in fiscal 1999
and interest is calculated at the prime rate at the date of execution, except
for one loan of $25,000 that carries interest of 20%. The balance represented at
December 31, 1998 includes the principal due plus accrued interest as of that
date.
NOTE 3: NET CAPITAL REQUIREMENTS
The following note applies to the Company's wholly owned subsidiary, Allen
& Pierce Securities, Inc.
(A) As a broker dealer, the Company is subject to the Securities and
Exchange Commission's Uniform Net Capital Rule 15c3- 1, which requires that the
ratio of aggregate indebtedness to the excess net capital, as defined, shall not
exceed 15 to 1. In addition, the Company is required to maintain net capital, as
defined, in excess of the lesser of $ 100,000 or 6 2/3% of aggregate
indebtedness. As of December 31, 1998, and December 31, 1997 the Company was in
excess of net capital requirements by $157,156 and $123,708, respectively and
had an aggregate indebtedness to excess net capital ratio of 5.35% and 10.12%,
respectively
F-7
<PAGE>
(B) As an introducing broker, the Company is subject to the Commodities
Futures Trading Commission's Net Capital Rule 1.17 which requires the Company to
maintain net capital, as defined, of the lesser of $30,000 or $3,000 per
associated person, as defined. As of December 31, 1998, and December 31, 1997
the Company was in excess of net capital requirements by $227,156 and $186,209,
respectively.
NOTE 4: CASH AND CASH EQUIVALENTS
Cash and cash equivalents include certificates of deposit with maturities
of less than three months.
F-8
<PAGE>
PART III
ITEM I - INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
NO
(3.1) *Certificate of Incorporation
(3.2) *Certificate of Amendment of Certificate of Incorporation
(3.3) *Bylaws
(10) Office Lease
(21) *List of Subsidiaries
(23) *Consent of Donahue Associates, Inc. Public Accountants
(27) *Financial Data Schedule
* Previously Filed
ITEM 2 - DESCRIPTION OF EXHIBITS
Not applicable
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934, the
registrant caused this Amendment to be signed on its behalf by the undersigned,
thereunto duly authorized.
BEDFORD HOLDINGS, INC.
By: /s/ Leon Zapoll,
--------------------------------
Chief Executive Officer
Date: July 23, 1999 By: /s/ Robert Samila
--------------------------------
Chief Financial Officer
F-9
STANDARD FORM OF OFFICE LEASE
The Real Estate Board of New York, Inc.
Agreement of Lease made as of this_______day of April 1994 between FGP 90
West Street, Inc., c/o Galbreath Riverbank as Agent, 437 Madison Avenue, New
York, NY 10022 party of the first part, hereinafter referred to as OWNER, and
Allen & Pierce party of the second part, hereinafter referred to as TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from
Owner Suite 615 in the building known as 90 West in the Borough of Manhattan,
City of New York, for the term of Five (5) years and 5 months (or until such
term shall sooner cease and expire as hereinafter provided) to commence on the
First day of September nineteen hundred and ninety-four, and to the end on the
Thirtieth day of January two-thousand both dates inclusive, at an annual rental
rate of Twenty-eight thousand dollars ($28,000.) which Tenant agrees to pay in
lawful money of the United States which shall be legal tender in payment of all
debts and dues, public and private, at the time of payment, in equal monthly
installments in advance on the first day of each month during said term, at the
office of Owner or such other place as Owner may designate, without any set off
or deduction whatsoever, except that Tenant shall pay the first monthly
installment(s) on the execution hereof (unless this lease be a renewal).
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent:
1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy:
2. Tenant shall use and occupy demised premises for Executive and
general offices and for no other purpose.
Tenant
Alterations:
3. Tenant shall make no changes in or to the demised premises of any
nature without Owner's prior written consent. Subject to the prior written
consent of Owner, and to the provisions of this article, Tenant at Tenant's
expense, may make alterations, installations, additions or improvements which
are nonstructural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises by using
contractors or mechanics first approved by Owner. Tenant shall, before making
any alterations, additions, installations or improvements, at its expense,
obtain all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Owner and Tenant agrees to carry and will cause Tenant's
contractors and subcontractors to carry such workman's compensation, general
liability, personal and property damage insurance as Owner may require. If any
mechanic's lien is filed against the demised premises, or the building of which
the same
<PAGE>
forms a part, for work claimed to have been done for, or materials furnished to,
Tenant, whether or not done pursuant to this article, the same shall be
discharged by Tenant within thirty days thereafter, at Tenant's expense, by
filing the bond required by law. All fixtures and all paneling, partitions,
railings and like installations, installed in the premises at any time, either
by Tenant or by Owner in Tenant's behalf, shall, upon installation, become the
property of Owner and shall remain upon and be surrendered with the demised
premises unless Owner, by notice to Tenant no later than twenty days prior to
the date fixed as the termination of this lease, elects to relinquish Owner's
right thereto and to have them removed by Tenant, in which event the same shall
be removed from the premises by Tenant prior to the expiration of the lease, at
Tenant's expense. Nothing in this Article shall be construed to give Owner title
to or to prevent Tenant's removal of trade fixtures, moveable office furniture
and equipment, but upon removal of any such from the premises or upon removal of
other installations as may be required by Owner, Tenant shall immediately and at
its expense, repair and restore the premises to the condition existing prior to
installation and repair any damage to the demised premises or the building due
to such removal. All property permitted or required to be removed, by Tenant at
the end of the term remaining in the premises after Tenant's removal shall be
deemed abandoned and may, at the election of Owner, either be retained as
Owner's property or may be removed from the premises by Owner, at Tenant's
expense.
Maintenance
and Repairs:
4. Tenant shall, throughout the term of this lease, take good care
of the demised premises and the fixtures and appurtenances therein. Tenant shall
be responsible for all damage or injury to the demised premises or any other
part of the building and the systems and equipment thereof, whether requiring
structural or nonstructural repairs caused by or resulting from carelessness,
omission, neglect or improper conduct of Tenant, Tenant's subtenants, agents,
employees, invitees or licensees, or which arise out of any work, labor, service
or equipment done for or supplied to Tenant or any subtenant or arising out of
the installation, use or operation of the property or equipment of Tenant or any
subtenant. Tenant shall also repair all damage to the building and the demised
premises caused by the moving of Tenant's fixtures, furniture and equipment.
Tenant shall promptly make, at Tenant's expense, all repairs in and to the
demised premises for which Tenant is responsible, using only the contractor for
the trade or trades in question, selected from a list of at least two
contractors per trade submitted by Owner. Any other repairs in or to the
building or the facilities and systems thereof for which Tenant is responsible
shall be performed by Owner at the Tenant's expense. Owner shall maintain in
good working order and repair the exterior and the structural portions of the
building, including the structural portions of its demised premises, and the
public portions of the building interior and the building plumbing, electrical,
heating and ventilating systems (to the extent such systems presently exist)
serving the demised premises. Tenant agrees to give prompt notice of any
defective condition in the premises for which Owner may be responsible
hereunder. There shall be no allowance to Tenant for diminution of rental value
and no liability on the part of Owner by reason of inconvenience, annoyance of
injury to business arising from Owner or others making repairs, alterations,
additions or improvements in or to any portion of the building or the demised
premises or in and to the fixtures, appurtenances or equipment thereof. It is
specifically agreed that Tenant shall not be entitled to any set off or
reduction of rent by reason of any failure of Owner to comply with the covenants
of this or any other article of this Lease. Tenant agrees that Tenant's sole
remedy at law in such instance will be by way of an action for
damages for breach
<PAGE>
of contract. The provisions of this Article 4 shall not apply in the case of
fire or other casualty which are dealt with in Article 9 hereof.
Window
Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any
window in the demised premises to be cleaned from the outside in violation of
Section 202 of the Labor Law or any other applicable law or of the Rules of the
Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
Requirements
of Law Fire
Insurance,
Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is then in
possession, and at all times thereafter, Tenant, at Tenant's sole cost and
expense, shall promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer pursuant to law,
and all orders, rules and regulations of the New York Board of Fire
Underwriters, Insurance Services Office, or any similar body which shall impose
any violation, order or duty upon Owner or Tenant with respect to the demised
premises, whether or not arising out of Tenant's use or manner of use thereof,
(including Tenant's permitted use) or, with respect to the building if arising
out of Tenant's use or manner of use of the premises or the building (including
the use permitted under the lease). Nothing herein shall require Tenant to make
structural repairs or alterations unless Tenant has, by its manner of use of the
demised premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect thereto.
Tenant may, after securing Owner to Owner's satisfaction against all damages,
interest, penalties and expenses, including, but not limited to, reasonable
attorney's fees, by cash deposit or by surety bond in an amount and in a company
satisfactory to Owner, contest and appeal any such laws, ordinances, orders,
rules, regulations or requirements provided same is done with all reasonable
promptness and provided such appeal shall not subject Owner to prosecution for a
criminal offense or constitute a default under any lease or mortgage under which
Owner may be obligated, or cause the demised premises or any part thereof to be
condemned or vacated. Tenant shall not do or permit any act or thing to be done
in or to the demised premises which is contrary to law, or which will invalidate
or be in conflict with public liability, fire or other policies of insurance at
any time carried by or for the benefit of Owner with respect to the demised
premises or the building of which the demised premises form a part, or which
shall or might subject Owner to any liability or responsibility to any person or
for property damage. Tenant shall not keep anything in the demised premises
except as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization or other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the commencement of
Tenant's occupancy. Tenant shall pay all costs, expenses, fines, penalties, or
damages, which may be imposed upon Owner by reason of Tenant's failure to comply
with the provisions of this article and if by reason of such failure the fire
insurance rate shall, at the beginning of this lease, or at any time thereafter,
be higher than it otherwise would be, then Tenant shall reimburse Owner, as
additional rent hereunder, for that portion of all fire insurance premiums
<PAGE>
thereafter paid by Owner which shall have been charged because of such failure
by Tenant. In any action or proceeding wherein Owner and Tenant are parties, a
schedule or "make-up" of rate for the building or demised premises issued by the
New York Fire Insurance Exchange, or other body making fire insurance rates
applicable to said premises shall be conclusive evidence of the facts therein
stated and of the several items and charges in the fire insurance rates then
applicable to said premises. Tenant shall not place a load upon any floor of the
demised premises exceeding the floor load per square foot area which it was
designed to carry and which is allowed by law. Owner reserves the right to
prescribe the weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by Tenant, at
Tenant's expense, in settings sufficient, in Owner's judgement, to absorb and
prevent vibration, noise and annoyance.
Subordination:
7. This lease is subject and subordinate to all ground or underlying
leases and to all mortgages which may now or hereafter affect such leases or the
real property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Owner may request.
Property--
Loss, Damages
Reimbursement,
Indemnity:
8. Owner or its agents shall not be liable for any damage to
property of Tenant or of others entrusted to employees of the building, nor for
loss of or damage to any property of Tenant by theft or otherwise, nor for any
injury or damage to persons or property resulting from any cause of whatsoever
nature, unless caused by or due to the negligence of Owner, its agents, servants
or employees. Owner or its agents will not be liable for any such damage caused
by other tenants or persons in, upon or about said building or caused by
Operations in construction of any private, public or quasi public work.
If at any time any windows of the demised premises are temporarily closed,
darkened or bricked up (or permanently closed, darkened or bricked up, if
required by law) for any reason whatsoever including, but not limited to Owner's
own acts, Owner shall not be liable for any damage Tenant may sustain thereby
and Tenant shall not be entitled to any compensation therefor nor abatement or
diminution of rent nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction. Tenant shall indemnify and save harmless
Owner against and from all liabilities, obligations, damages, penalties, claims,
costs and expenses for which Owner shall not be reimbursed by insurance,
including reasonable attorneys fees, paid, suffered or incurred as a result of
any breach by Tenant, Tenant's agents, contractors, employees, invitees, or
licensees, of any covenant or condition of this lease, or the carelessness,
negligence or improper conduct of the Tenant, Tenant's agents, contractors,
employees, invitees or licensees. Tenant's liability under this lease extends to
the acts and omissions of any sub-tenant, and any agent, contractor, employee,
invitee or licensee of any sub-tenant. In case any action or proceeding is
brought against Owner by reason of any such claim,
<PAGE>
Tenant, upon written notice from Owner, will, at Tenant's expense, resist or
defend such action or proceeding by counsel approved by Owner in writing, such
approval not to be unreasonably withheld.
Destruction,
Fire and Other
Casualty:
9. (a) If the demised premises or any part thereof shall be damaged
by fire or other casualty, Tenant shall give immediate notice thereof to Owner
and this lease shall continue in full force and effect except as hereinafter set
forth. (b) If the demised premises are partially damaged or rendered partially
unusable by fire or other casualty, the damages thereto shall be repaired by and
at the expense of Owner and the rent, until such repair shall be substantially
completed, shall be apportioned from the day following the casualty according to
the part of the premises which is usable. (c) If the demised premises are
totally damaged or rendered wholly unusable by fire or other casualty, then the
rent shall be proportionately paid up to the time of the casualty and
thenceforth shall cease until the date when the premises shall have been
repaired and restored by Owner, subject to Owner's right to elect not to restore
the same as hereinafter provided. (d) If the demised premises are rendered
wholly unusable or (whether or not the demised premises are damaged in whole or
in part) if the building shall be so damaged that Owner shall decide to demolish
it or to rebuild it, then, in any of such events, Owner may elect to terminate
this lease by written notice to Tenant, given 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 date
specified in such notice the term of this l ease 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, and any rent
owing shall be paid up to such date and any payments of Rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant. Unless Owner shall serve a termination notice as provided for herein,
Owner shall make the repairs and restorations under the conditions of (b) and
(c) hereof, with all reasonable expedition, subject to delays due to adjustment
of insurance claims, labor troubles and causes beyond Owner's control. After any
such casualty, Tenant shall cooperate with Owner'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 (5) days after written notice from Owner
that the premises are substantially ready for Tenant's occupancy. (e) Nothing
contained hereinabove shall relieve Tenant from liability that may exist as a
result of damage from fire or other casualty. Notwithstanding the foregoing,
each party shall look first to any insurance in its favor before making any
claim against the other party for recovery for loss or damage resulting from
fire or other casualty, and to the extent that such insurance is in force and
collectible and to the extent permitted by law, Owner and Tenant each hereby
releases and waives all right of recovery against the other or any one claiming
through or under each of them by way of subrogation or otherwise. The foregoing
release and waiver shall be in force only if both releasors' insurance policies
contain a clause providing that such a release or waiver shall not invalidate
the insurance. If, and to the extent, that such waiver can be obtained only by
the payment of additional premiums, then the party benefitting from the waiver
shall pay such premium within ten days after written demand or shall be deemed
to have agreed that the party obtaining insurance coverage shall be free of any
further obligation under the provisions hereof with respect to waiver of
subrogation. Tenant acknowledges that Owner will not carry insurance on Tenant's
furniture and/or
<PAGE>
furnishings or any fixtures or equipment, improvements, or appurtenances
removable by Tenant and agrees that Owner will not be obligated to repair any
damage thereto or replace the same. (f) Tenant hereby waives the provisions of
Section 227 of the Real Property Law and agrees that the provisions of this
article shall govern and control in lieu thereof.
Eminent
Domain:
10. If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for any public or quasi public use or
purpose, then and in that event, the term of this lease shall cease and
terminate from the date of title vesting in such proceeding and Tenant shall
have no claim for the value of any unexpired term of said lease and assigns to
Owner, Tenant's entire interest in any such award.
Assignment,
Mortgage,
Etc.:
11. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this agreement, nor
underlet, or suffer or permit the demised premises or any part thereof to be
used by others, without the prior written consent of Owner in each instance.
Transfer of the majority of the stock of a corporate Tenant shall be deemed an
assignment. If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, under-tenant or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting.
Electric
Current:
- -> 12. Rates and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in RIDER attached hereto. Tenant
covenants and agrees that at all times its use of electric current shall not
exceed the capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which, in Owner's
opinion, reasonably exercised, will overload such installations or interfere
with the use thereof by other tenants of the building. The change at any time of
the character of electric service shall in no wise make Owner liable or
responsible to Tenant, for any loss, damages or expenses which Tenant may
sustain.
- ----------
- -> Rider to be added if necessary.
Access to
Premises:
13. Owner or Owner's agents shall have the right (but shall not be
obligated) to enter the demised premises in any emergency at any time, and, at
other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to the demised premises or to any other portion of the building or
which
<PAGE>
Owner may elect to perform. Tenant shall permit Owner to use and maintain and
replace pipes and conduits in and through the demised premises and to erect new
pipes and conduits therein provided they are concealed within the walls, floor,
or ceiling. Owner may, during the progress of any work in the demised premises,
take all necessary materials and equipment into said premises without the same
constituting an eviction nor shall the Tenant be entitled to any abatement of
rent while such work is in progress nor to any damages by reason of loss or
interruption of business or other wise. Throughout the term hereof Owner shall
have the right to enter the demised premises at reasonable hours for the purpose
of showing the same to prospective purchasers or mortgagees of the building, and
during the last six months of the term for the purpose of showing the same to
prospective tenants. If Tenant is not present to open and permit an entry into
the premises, Owner or Owner's agents may enter the same whenever such entry may
be necessary or permissible by master key or forcibly and provided reasonable
care is exercised to safeguard Tenant's property. such entry shall not render
Owner or its agents liable therefor, nor in any event shall the obligations of
Tenant hereunder be affected. If during the last month of the term Tenant shall
have removed all or substantially all of Tenant's property therefrom Owner may
immediately enter, alter, renovate or redecorate the demised premises without
limitation or abatement of rent, or incurring liability to Tenant for any
compensation and such act shall have no effect on this lease or Tenant's
obligations hereunder.
Vault,
Vault Space,
Area:
14. No Vaults, vault space or area, whether or not enclosed or
covered, not within the property line of the building is leased hereunder,
anything contained in or indicated on any sketch, blue print or plan, or
anything contained elsewhere in this lease to the contrary notwithstanding.
Owner makes no representation as to the location of the property line of the
building. All vaults and vault space and all such areas not within the property
line of the building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked, or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility, Owner shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation, diminution or
requisition be deemed constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid by Tenant.
Occupancy:
15. Tenant will not at any time use or occupy the demised premises
in violation of the certificate of occupancy issued for the building of which
the demised premises are a part. Tenant has inspected the premises and accepts
them as is, subject to the riders annexed hereto with respect to Owner's work,
if any. In any event, Owner makes no representation as to the condition of the
premises and Tenant agrees to accept the same subject to violations, whether or
not of record.
Bankruptcy:
16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by the sending of a
written notice to Tenant within a reasonable time after the happening of any one
or more of the following events: (1) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as the debtor; or (2) the making by
Tenant of an assignment or any other arrangement for the benefit of creditors
under any state statute. Neither Tenant nor any Person claiming through or under
Tenant, or by reason of any statute or order of court, shall thereafter be
entitled to possession of the premises demised but shall forthwith quit and
<PAGE>
surrender the premises. If this lease shall be assigned in accordance with its
terms, the provisions of this Article 16 shall be applicable only to the party
then owning Tenant's interest in this lease. (b) it is stipulated and agreed
that in the event of the termination of this lease pursuant to (a) hereof, Owner
shall forthwith, notwithstanding any other provisions of this lease to the
contrary, be entitled to recover from Tenant as and for liquidated damages an
amount equal to the difference between the rent reserved hereunder for the
unexpired portion of the term demised and the fair and reasonable rental value
of the demised premises for the same period. In the computation of such damages
the difference between any installment of rent becoming due hereunder after the
date of termination and the fair and reasonable rental value of the demised
premises for the period for which such installment was payable shall be
discounted to the date of termination at the Rate of four percent (4%) per
annum. If such premises or any part thereof be relet by the Owner for the
unexpired term of said lease, or any part thereof, before presentation of proof
of such liquidated damages to any court, commission or tribunal, the amount of
rent reserved upon such reletting shall be deemed to be the fair and reasonable
rental value for the part or the whole of the premises so re-let during the term
of the re-letting. Nothing herein contained shall limit or prejudice the right
of the Owner to prove for and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of
this lease other than the covenants for the payment of rent or additional rent;
or if the demised premises become vacant or deserted; or if any execution or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the demised premises shall be taken or occupied by someone other than Tenant; or
if this lease be rejected under ss.235 of Title II of the U.S. Code (bankruptcy
code); or if Tenant shall fail to move into or take possession of the premises
within fifteen (15) days after the commencement of the term of this lease, then,
in any one or more of such events, upon Owner serving a written five (5) days
notice upon Tenant specifying the nature of said default and upon the expiration
of said five (5) days, if Tenant shall have failed to comply with or remedy such
default, or if the said default or omission complained of shall be of a nature
that the same cannot be completely cured or remedied within said five (5) day
period, and if Tenant shall not have diligently commenced curing such default
within such five (5) day period, and shall not thereafter with reasonable
diligence and in good faith, proceed to remedy or cure such default, then Owner
may serve a written three (3) days' notice of cancellation of this lease upon
Tenant, and upon the expiration of said three (3) days this lease and the term
thereunder shall end and expire as fully and completely as if the expiration of
such three (3) day period were the day herein definitely fixed for the end and
expiration of this lease and the term thereof and Tenant shall then quit and sur
render the demised Premises to Owner but Tenant shall remain liable as
hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been
given, and the term shall expire as aforesaid; or if Tenant shall make default
in the payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required
then and in any of such events Owner may without notice, re-enter the demised
premises either by force or otherwise, and dispossess Tenant by summary
proceedings or otherwise, and the legal representative of Tenant or other
occupant of demised premises and remove
<PAGE>
their effects and hold the premises as if this lease had not been made, and
Tenant hereby waives the service of notice of intention to re-enter or to
institute legal proceedings to that end. If Tenant shall make default hereunder
prior to the date fixed as the commencement of any renewal or extension of this
lease, Owner may cancel and terminate such renewal or extension agreement by
written notice.
Remedies of
Owner and Waiver
of Redemption:
18. In case of any such default, re-entry, expiration and/ or
dispossess by summary proceedings or otherwise, (a) the rent shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
expiration, (b) Owner may re-let the premises or any part or parts thereof,
either in the name of Owner or otherwise, for a term or terms, which may at
Owner's option be less than or exceed the period which would otherwise have
constituted the balance of the term of this lease and may grant concessions or
free rent or charge a higher rental than that in this lease, and/or (c) Tenant
or the legal representatives of Tenant shall also pay Owner as liquidated
damages for the failure of Tenant to observe and perform said Tenant's covenants
herein contained, any deficiency between the rent hereby reserved and/or
covenanted to be paid and the net amount, if any, of the rents collected on
account of the lease or leases of the demised premises for each month of the
period which would otherwise have constituted the balance of the term of this
lease. The failure of Owner to re-let the premises or any part or parts thereof
shall not release or affect Tenant's liability for damages. In computing such
liquidated damages there shall be added to the said deficiency such expenses as
Owner may incur in connection with re-letting, such as legal expenses,
attorneys' fees, brokerage, advertising and for keeping the demised premises in
good order or for preparing the same for re-letting. Any such liquidated damages
shall be paid in monthly installments by Tenant on the rent day specified in
this lease and any suit brought to collect the amount of the deficiency for any
month shall not prejudice in any way the rights of Owner to collect the
deficiency for any subsequent month by a similar proceeding. Owner, in putting
the demised premises in good order or preparing the same for re-rental may, at
Owner's option, make such alterations, repairs, replacements, and/or decorations
in the demised premises as Owner, in Owner's sole judgement, considers advisable
and necessary for the purpose of re-letting the demised premises, and the making
of such alterations, repairs, replacements, and/or decorations shall not operate
or he construed to release Tenant from liability hereunder as aforesaid. Owner
shall in no event he liable in any way whatsoever for failure to re-let the
demised premises, or in the event that the demised premises are re-let, for
failure to collect the rent thereof under such re-letting, and in no event shall
Tenant be entitled to receive any excess, if any, of such net rents collected
over the sums payable by Tenant to Owner hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof, Owner
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. Tenant hereby
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 Owner obtaining possession of demised premises, by
reason of the violation by Tenant of any of the covenants and conditions of this
lease, or otherwise.
<PAGE>
Fees and
Expenses:
19. 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, then, unless
other wise provided elsewhere in this lease, Owner may immediately or at any
time thereafter and without notice perform the obligation of Tenant thereunder.
If Owner, in connection with the foregoing or in connection with any default by
Tenant in the covenant to pay rent hereunder, makes any expenditures or incurs
any obligations for the payment of money, including but not limited to
attorney's fees, in instituting, prosecuting or defending any action or
proceeding, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deem ed to be additional rent hereunder and
shall be paid by Tenant to Owner within five (5) days of rendition of any bill
or statement to Tenant therefor. If Tenant's lease term shall have expired at
the time of making of such expenditures or incurring of such obligations, such
sums shall be recoverable by Owner as damages.
Building
Alterations
and
Management:
20. Owner shall have the right at any time 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, stairs, toilets or other public parts of the
building and to change the name, number or designation by which the building may
be known. There shall be no allowance to Tenant for diminution of rental value
and no liability on the part of Owner by reason of inconvenience, annoyance or
injury to business arising from Owner or other Tenants making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
such controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
No Representation
By Owner:
21. Neither Owner nor Owners's agents have made any representations
or promises with respect to the physical condition of the building, the land
upon which it is erected or the demised premises, the rents, leases, expenses
of' operation or any other matter or thing affecting or related to the premises
except as herein expressly set forth and no rights, casements or licenses are
acquired by Tenant by implication or otherwise except as expressly set forth in
the provisions of this lease. Tenant has inspected the building and the demised
premises and is thoroughly acquainted with their condition and agrees to take
the same "as is" and acknowledges that the taking of possession of the demised
premises by Tenant shall be conclusive evidence that the said premises and the
building of which the same form a part were in good and satisfactory condition
at the time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between Owner and Tenant and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
<PAGE>
End of Term:
22. Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property. Tenant's obligation to observe or perform this
covenant shall survive the expiration Or other termination of this lease. If the
last day of the term of this Lease or any renewal thereof, falls on Sunday, this
lease shall expire at noon on the preceding Saturday unless it be a legal
holiday in which case it shall expire at noon on the preceding business day.
Quiet
Enjoyment:
23. Owner covenants and agrees with Tenant that upon Tenant paying
the rent and additional rent and observing and performing all the terms,
covenants and conditions, on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease including, but not
limited to, Article 31 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
Failure
to Give
Possession:
24. If Owner is unable to give possession of the demised premises on
the date of the commencement of the term hereof, because of the holding-over or
retention of possession of any tenant, undertenant or occupants or if the
demised premises are located in a building being constructed, because such
building has not been sufficiently completed to make the premises ready for
occupancy or because of the fact that a certificate of occupancy has not been
procured or for any other reason, Owner shall not be subject to any liability
for failure to give possession on said date and the validity of the lease shall
not be impaired under such circumstances, nor shall the same be construed in any
wise to extend the term of this lease, but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Owner's inability to obtain
possession) until after Owner shall have given Tenant written notice that the
premises are substantially ready for Tenant's occupancy. If permission is given
to Tenant to enter into the possession of the demised premises or to occupy
premises other than the demised premises prior to the date specified as the
commencement of the term of this lease, Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease, except as to the covenant to pay rent. The provisions
of this article are intended to constitute "an express provision to the
contrary" within the meaning of Section 223 -a of the New York Real Property
Law.
No Waiver:
25. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this lease or
of any of the Rules or Regulations, set forth or hereafter adopted by Owner,
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 Owner of rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach and no provision of this lease
shall be deemed to have been waived by Owner unless such waiver be in writing
signed by Owner. No payment by Tenant or receipt by Owner of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
of any check or any
<PAGE>
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Owner may accept such check or payment without prejudice to
Owner's right to recover the balance of such rent or pursue any other remedy in
this lease provided. No act or thing done by Owner or Owner's agents during the
term hereby demised shall be deemed an acceptance of a surrender of said
premises, and no agreement to accept such surrender shall be valid unless in
writing signed by Owner. No employee of Owner or Owner's agent shall have any
power to accept the keys of said premises prior to the termination of the lease
and the delivery of keys to any such agent or employee shall not operate as a
termination of the lease or a surrender of the premises.
Waiver of
Trial by Jury:
26. It is mutually agreed by and between Owner and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counter claim brought. by either of the parties hereto
against the other (except for personal injury or property damage) on any matters
whatsoever arising out of or in any way connected with this lease, the
relationship of Owner and Tenant, Tenant's use of or occupancy of said premises,
and any emergency statutory or any other statutory remedy. It is further
mutually agreed that in the event Owner commences any summary proceeding for
possession of the premises, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding including a counterclaim
under Article 4.
Inability to
Perform:
27. This Lease and the obligation of Tenant to pay rent hereunder
and perform all of the other covenants and agreements hereunder on part of
Tenant to be performed shall in no wise be affected, impaired or excused because
Owner 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 Owner is prevented or delayed from so doing by reason of strike or
labor troubles or any cause whatsoever 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.
Bills and
Notices:
28. Except as otherwise in this lease provided, a bill, statement,
notice or communication which Owner may desire or be required to give to Tenant,
shall be deemed sufficiently given or rendered if, in writing, delivered to
Tenant person ally or sent by registered or certified mail addressed to Tenant
at the building of which the demised premises form a part or at the last known
residence address or business address of Tenant or left at any of the aforesaid
premises addressed to Tenant, and the time of the rendition of such bill or
statement and of the giving of such notice or communication shall be deemed to
be the time when the same is delivered to Tenant, mail ed, or left at the
premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first hereinabove
given or at such other address as Owner shall designate by written notice.
<PAGE>
Services
Provided by
Owners:
29. As long as Tenant is not in default under any of the covenants
of this lease, Owner shall provide: (a) necessary elevator facilities on
business days from 8 a.m. to 6 p.m. and on Saturdays from 8 a.m. to 1 p.m. and
have one elevator subject to call at all other times; (b) heat to the demised
premises when and as required by law, on business days from 8 a.m. to 6 p.m. and
on Saturdays from 8 a.m. to 1 p.m.; (c) water for ordinary lavatory purposes,
but if Tenant uses or consumes water for any other purposes or in unusual
quantities (of which fact Owner shall be the sole judge), Owner may install a
water meter at Tenant's expense which Tenant shall thereafter maintain at
Tenant's expense in good working order and repair to register such water
consumption and Tenant shall pay for water consumed as shown on said meter as
additional rent as and when bills are rendered; (d) cleaning service for the
demised premises on business days at Owner's expense provided that the same are
kept in order by Tenant. If, however, said premises are to be kept clean by
Tenant, it shall be done at Tenant's sole expense, in a manner satisfactory to
Owner and no one other than persons approved by Owner shall be permitted to
enter said premises or the building of which they are a part for such purpose.
Tenant shall pay Owner the cost of removal of any of Tenant's refuse and rubbish
from the building; (e) If the demised premises are serviced by Owner's air
conditioning/cooling and ventilating system, air conditioning/cooling will be
furnished to tenant from May 15th through September 30th on business days
(Mondays through Fridays, holidays excepted) from 8:00 a.m. to 6:00 p.m., and
ventilation will be furnished on business days during the aforesaid hours except
when air conditioning/cooling is being furnished as aforesaid. If Tenant
requires air conditioning/cooling or ventilation for more extended hours or on
Saturdays, Sundays or on holidays, as defined under Owner's contract with
Operating Engineers Local 94-94A, Owner will furnish the same at Tenant's
expense. RIDER TO BE ADDED IN RESPECT TO RATES AND CONDITIONS FOR ADDITIONAL
SERVICE; <-
- ----------
- -> Rider to be added if necessary.
(f) Owner reserves the right to stop services of the heating,
elevators, plumbing, air-conditioning, power systems or cleaning or other
services, if any, when necessary by reason of accident or for repairs,
alterations, replacements or improvements necessary or desirable in the judgment
of Owner for as long as may be reasonably required by reason thereof. If the
building of which the demised premises are a part supplies manually operated
elevator service, Owner at any time may substitute automatic control elevator
service and upon ten days' written notice to Tenant, proceed with alterations
necessary therefor without in any wise affecting this lease or the obligation of
Tenant hereunder. The same shall be done with a minimum of inconvenience to
Tenant and Owner shall pursue the alteration with due diligence.
Captions:
30. 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
nor the intent of any provisions thereof.
Definitions:
31. The term "office", or "offices", wherever used in this lease,
shall not be construed to mean premises used as a store or stores, for the sale
or display, at any time, of goods, wares or merchandise, of any kind, or as a
restaurant, shop, booth, bootblack or other stand, barber
<PAGE>
shop, or for other similar purposes or for manufacturing. The term "Owner" means
a landlord or lessor, and as used in this lease means only the owner, or the
mortgagee in possession, for the time being of the land and building (or the
owner of a lease of the building or of the land and building) of which the
demised premises form a part, so that in the event of any sale or sales of said
land and building or of said lease, or in the event of a lease of said building,
or of the land and building, the said Owner shall be and hereby is entirely
freed and relieved of all covenants and obligations of Owner hereunder, and it
shall be deemed and construed without further agreement between the parties or
their successors in interest, or between the parties and the purchaser, at any
such sale, or the said lessee of the building, or of the land and building, that
the purchaser or the lessee of the building has assumed and agreed to carry out
any and all covenants and obligations of Owner, hereunder. The words "re-enter"
and "re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "business days" as used in this lease shall exclude Saturdays
(except such portion thereof as is covered by specific hours in Article 29
hereof), Sundays and all days observed by the State or Federal Government as
legal holidays and those designated as holidays by the applicable building
service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service.
Adjacent
Excavation--
Shoring:
32. If an excavation shall be made upon land adjacent to the demised
premises, or shall be authorized to be made, Tenant shall afford to the person
causing or authorizing to cause such excavation, license to enter upon the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building of which the demised premises
form a part from injury or damage and to support the same by proper foundations
without any claim for damages or indemnity against Owner, or diminution or
abatement of rent.
Rules and
Regulations:
33. Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations and such other and further reasonable Rules and Regulations as Owner
or Owner's agents may from time to time adopt. Notice of any additional rules or
regulations shall be given in such manner as Owner may elect. In case Tenant
disputes the reasonableness of any additional Rule or Regulation hereafter made
or adopted by Owner or Owner's agents, the parties hereto agree to submit the
question of the reasonableness of such Rule or Regulation for decision to the
New York office of the American Arbitration Association, whose determination
shall be final and conclusive upon the parties hereto. The right to dispute the
reasonableness of any additional Rule or Regulation upon Tenant's part shall be
deemed waived unless the same shall be asserted by service of a notice, in
writing upon owner within ten (10) days after the giving of notice thereof.
Nothing in this lease contained shall be construed to impose upon Owner any duty
or obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease, as against any other tenant and Owner shall not
be liable to Tenant for violation of the same by any other tenant, its servants,
employees, agents, visitors or licensees.
<PAGE>
Security:
- -> 34. Tenant has deposited with Owner the sum of $ 6,533.34* as
security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this lease; it is agreed that in the event Tenant
defaults in respect of any of the terms, provisions and conditions of this
lease, including, but not limited to, the payment of rent and additional rent,
Owner may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any rent and additional rent
or any other sum as to which Tenant is in default or for any sum which Owner may
expend or may be required to expend by reason of Tenant's default in respect of
any of the terms, 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 Owner. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
security shall be returned to Tenant after the date fixed as the end of the
Lease and after delivery of entire possession of the demised premises to Owner.
In the event of a sale of the land and building or leasing of the building, of
which the demised premises form a part, Owner shall have the right to transfer
the security to the vendee or lessee and Owner shall thereupon be released by
Tenant from all liability for the return of such security; and Tenant agrees to
look to the new Owner solely for the return of said security, and it is agreed
that the provisions hereof shall apply to every transfer or assignment made of
the security to a new Owner. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
- ----------
- -> Space to be filled in or deleted.
* Held on deposit
Estoppel
Certificate
35. Tenant, at any time, and from time to time, upon at least 10
days' prior notice by Owner, shall execute, acknowledge and deliver to Owner,
and/or to any other person, firm or corporation specified by Owner, a statement
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), stating the dates to which the rent and
additional rent have been paid, and stating whether or not there exists any
default by Owner under this Lease, and, if so, specifying each such default.
Successors
and Assigns:
36. The covenants, conditions and agreements contained in this lease
shall bind and inure to the benefit of Owner and Tenant and their respective
heirs, distributees, executors, administrators, successors, and except as
otherwise provided in this lease, their assigns.
<PAGE>
In Witness Whereof, Owner and Tenant have respectively signed and sealed
this lease as of the day and year first above written.
FGP 90 West Street, Inc.
c/o Galbreath Riverbank as agent
Witness for Owner: /s/ Bill Nikolis, V.P.
---------------------------------
Bill Nikolis
Senior Vice President
- ----------------------------- ---------------------------------
Witness for Tenant: by: /s/ Robert Samila, President
---------------------------------
Allen & Pierce
- ----------------------------- ---------------------------------
ACKNOWLEDGMENTS
CORPORATE OWNER
STATE OF NEW YORK, ss.:
County of
On this_________ day of ___________________, 19 ______, before me
personally came ________________________________________________________, to me
known, who being by me duly sworn, did depose and say that he resides in
____________________________________________________________________________;
that he is the _______________________ of __________________________________ the
corporation described in and which executed the foregoing instrument, as OWNER;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and that he signed his name thereto by like
order.
------------------------------
CORPORATE TENANT
STATE OF NEW YORK, ss.:
County of
On this_________ day of ___________________, 19 ______, before me
personally came ________________________________________________________, to me
known, who being by me duly sworn, did depose and say that he resides in
_______________________________________________________________________________;
that he is the _______________________ of ______________________________________
the corporation described in and which executed the foregoing instrument, as
TENANT; that he
<PAGE>
knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto by
like order.
------------------------------
INDIVIDUAL OWNER
STATE OF NEW YORK, ss.
County of
On this_________ day of ___________________, 19 ______, before me personally
came ________________________________________________________, to me known and
known to be the individual ____________________________________________
described in and who, as OWNER, executed the foregoing instrument and
acknowledged to me that ___________________ he executed the same.
------------------------------
INDIVIDUAL TENANT
STATE OF NEW YORK, ss.
County of
On this_________ day of ___________________, 19 ______, before me personally
came ________________________________________________________, to me known and
known to be the individual ____________________________________________
described in and who, as TENANT, executed the foregoing instrument and
acknowledged to me that ___________________ he executed the same.
------------------------------
<PAGE>
FGP 90 WEST STREET INC.
90 West Street
New York, New York 10006
Rider attached to and made part of lease dated this April, day of _ 1994 by and
between FGP 90 West Street, Inc., as Landlord, and Allen & Pierce as tenant for
Suite 615, the premises at 90 West Street, New York, New York, 10006.
================================================================================
Wherever the terms, covenants and conditions contained in this Rider conflict
with any of the terms, covenants and conditions in the printed portion of this
lease, the Rider shall prevail.
37. DEFINITIONS AND CAPTIONS: The captions, numbers and definitions set forth
herein are inserted only as a matter of convenience and are not intended to
define, limit, construe or describe the scope or intent of any paragraph, nor in
any way affect this lease. The term "Landlord" as used in this Rider shall be
deemed to mean the same thing as the term "Owner" as used in the printed portion
of this lease, and the term "fixed annual rent" as used herein shall be defined
to mean the annual rent referred to in the second paragraph of the first printed
page of this lease.
38. BROKER: Tenants represents and warrants that it has dealt with no broker
except Galbreath Riverbank L.P. in connection with the execution of this lease
or the showing of the demised premises and agrees to defend, indemnify and hold
Landlord harmless from and against any and all claims, costs and liabilities,
including attorneys' fees and costs, arising out of or in connection with the
claims of any other broker to a commission in connection with this lease.
39. INDEMNIFICATION: Tenant shall indemnify and hold Landlord harmless from all
claims, costs, and liabilities, including attorneys' fees and costs, arising out
of or incurred in connection with: (i) Tenant's use of the demised premises or
the conduct or its business or from any activity, work, or thing done, permitted
or suffered by Tenant in or about the premises or the building, (ii) any breach
or default in the performance or any obligation to be performed by Tenant under
the terms of this lease, and (iii) any act, neglect, fault or omission of Tenant
or of its agents, employees or invitees. In case any action or proceeding shall
be brought against Landlord by reason of any of the foregoing Tenant, upon
notice from Landlord, shall defend the same at Tenant's expense by counsel
approved in writing by Landlord. Tenant, as a material part of the consideration
to Landlord, hereby assumes all risk of damage to property or injury to persons
in, upon or about the demised premises from any cause whatsoever.
40. DAMAGE TO TENANTS PROPERTY: Notwithstanding any other provision hereof,
Landlord or its agents shall not be liable for (i) any damage to any property
entrusted to employees of the building, (ii) loss or damage to any property by
theft or otherwise, (iii) any injury or damage to persons or property resulting
from fire, explosion, falling plaster, steam, gas, electricity, water or
1
<PAGE>
rain which may leak from any part of the building or from the pipes, appliances
or plumbing work therein or from the roof, street or sub-surface or from any
other place resulting from dampness, or (iv) any other cause whatsoever.
Landlord or its agents shall not be liable for interference with light or other
incorporeal hereditaments, nor shall Landlord be liable for any latent defect in
the demised premises in the demised premises or in the building or of defects
therein or in the fixtures or equipment.
41. TENANT'S REPRESENTATION: Tenant covenants that if it performs any
construction or alternation at the demised premises in accordance with all of
the other terms and conditions of this lease and, as a result of such work, the
normal heating supplied by the Landlord is altered or reduced, then Landlord
shall not be required to provide extra heat or perform any installations, beyond
that which was being supplied or provided prior to Tenant's work.
42. INSURANCE:
42.1 Types of Coverage. Tenant shall, during the term hereof and any other
period of occupancy, at its sole cost and expense, keep in full force and effect
the following insurance:
42.1.1 Standard form property insurance insuring against the perils of
fire, extended coverage, vandalism, malicious mischief, special extended
coverage ("All-Risk") and sprinkler leakage. This insurance policy shall be upon
all property owned by Tenant, for which Tenant is legally liable or that was
installed at Tenant's expense, and which is located in the building, including,
without limitation, furniture, fittings, installations, fixtures (other than
tenant improvements installed by Landlord), and any other personal property, in
an amount not less than ninety percent (90%) of the full replacement cost
thereof. In the event that there shall be a dispute as to the amount which
comprises fun replacement cost, the decision of Landlord or any mortgages of
Landlord shall be conclusive. This insurance policy shall also be upon direct or
indirect loss of Tenants earning attributable to Tenant's inability to use fully
or obtain access to the demised premises or building in an amount as will
properly reimburse Tenant.
42.1.2 Comprehensive general liability insurance insuring Tenant against
any liability arising out of the lease, use, occupancy or maintenance of the
demised premises and all areas appurtenant thereto. Such insurance shall be in
the amount of $2,000,000 combined single limit for injury to, or death of one or
more persons in an occurrence, and for damage to tangible property (including
loss of use) in an occurrence, with such liability amount to be adjusted from
year to year to reflect cost of living increases. Their policy shall insure the
hazards of premises and operations, independent contractors, contractual
liability (covering the indemnity contained in Article 39) and shall (i) name
Landlord and Landlord's agents, employees and mortgagees as additional insureds,
(ii) contain an across liability provision, and (iii) contain a provision that
"the insurance provided the Landlord hereunder shall be primary and
non-contributing with any other insurance available to the Landlord."
42.1.3 Worker's compensation and employer's liability insurance (as
required by state law).
2
<PAGE>
42.1.4 Any other form or forms of insurance as Tenant or Landlord or any
mortgagees of Landlord may reasonably require from time to time in form, in
amounts and for insurance risks against which a prudent tenant would protect
itself.
42.2 Insurance Requirements. All policies shall be written in a form
satisfactory to Landlord and shall be taken out with insurance companies holding
a general policyholder's rating of "A" and a financial rating of "X" or better,
as set forth in the most current issue of Best's Insurance Guide. Within ten
(10) days after the execution of this lease, Tenant shall deliver to Landlord
copies of policies or certificates evidencing the existence of the amounts and
forms of coverage satisfactory to Landlord. No such policy shall be cancelable
or reducible in coverage except after thirty (30) days prior written notice to
Landlord. Tenant shall, within ten (10) days prior to the expiration of such
policies, furnish Landlord with renewals or "binders" thereof, or Landlord may
order such insurance and charge the cost thereof to Tenant as additional rent.
If Landlord obtains any insurance that is the responsibility of Tenant under
this section, Landlord shall deliver to Tenant a written statement setting forth
the cost of any such insurance and showing reasonable detail the manner in which
it has been computed.
43. LANDLORD'S ACCESS:
Tenant agrees that it will, during the entire term of this lease, keep the
Landlord informed of the telephone numbers of at lease three (3) person or
parties having keys to the demised premises in order that, in the event of an
emergency which requires Landlord to have access to such facilities during other
than regular business hours, Landlord may arrange with such persons or parties
to be admitted to the demised premises; provided, however, that if Landlord is
unable to arrange for admittance to the demised premises during any such
emergency, or if time does not permit the making of such arrangements, Landlord
shall have the right to gain admittance to the demised premises by forcibly or
otherwise breaking into the demised premises, and the sole liability of Landlord
to Tenant in such event shall be that Landlord shall be obligated to repair the
physical damage to the demised premises directly caused by such breaking in
within a reasonable time after the occurrence thereof. In addition, the Tenant
shall supply to Landlord a key for the demised premises for access for cleaning
and for any other business purpose as provided in this lease. Such key(s) shall
be supplied by Tenant upon execution hereof.
44. ELECTRICITY:
44.1 Electrical Supply. At the commencement of the term, electricity shall
be supplied to the demised premises in accordance with the provisions of Section
44.2.2 However, at any time and from time to time during the term of this lease,
Landlord shall have the option of having electricity supplied to the demised
premises in accordance with the provisions of either of Section 44.2.1 or 44.2.3
upon sixty (60) days prior notice to Tenant. Landlord may exercise such option
more than once during the term, including, without limitation, returning to the
provision of a section under which electricity was previously supplied to
Tenant.
3
<PAGE>
44.2 Methods.
44.2.1 Submetering.Using the method of supplying electricity described in
this Section 44.2.1, Landlord shall furnish electricity to the demised premises
on a submetered basis and Tenant covenants and agrees to purchase the same from
Landlord or Landlord's designated agent at charges, terms and rates set, from
time to time, during the term of this lease by Landlord, which shall not be
higher than those specified in the service classification in effect on January
1, 1970 pursuant to which Landlord then purchased electric current from the
public utility corporation servicing the building; provided, however, such
charges shall be increased in the same percentage as any percentage increase in
the billing to Landlord for electricity, for then entire building, by reason of
increase in Landlord's electric rates, charges, fuel adjustment or service
classifications, or by taxes or charges of any kind imposed thereon, or for any
other such reason, subsequent to January 1, 1970. Any such percentage increase
in Landlord's billing for electricity shall be computed by the application of
the average consumption (energy and demand) of electricity for the entire
building for the twelve (12) full months immediately prior to the rate change,
other change, or any changed methods of or rules on billing for same, on a
consistent basis to the new rate and to the service classification in effect on
January 1, 1970. If the average consumption of electricity for the entire
building for such prior twelve (12) months cannot reasonably to applied and used
with respect to changed methods of or rules on billing, then the percentage
increase shall be computed by the use of the average consumption (energy and
demand) for the entire building for the first three (3) months after such
change, projected to a full twelve (12) months and that same consumption, so
projected, shall be applied to the service classification in effect on January
1, 1970. Where more than one meter measures the service of Tenant in the
building, the service rendered through each meter may be computed and billed
separately in accordance with the provisions hereof. Bills therefor shall be
rendered at such times as Landlord may elect and the amount, as computed from a
meter, shall be paid as additional rent. If such bills are not paid within ten
(10) days after being rendered, Landlord may, without further notice,
discontinue the service of electric current to the demised premises without
releasing Tenant from any liability for any damage or loss sustained by Tenant
by such discontinuance of service; provided, however, that in the event Landlord
shall discontinue furnishing electric service to the demised premises pursuant
to the preceding provisions of this sentence and Tenant shall pay to Landlord
such delinquent amounts, then, provided Landlord shall not have exercised its
right to terminate this lease, Landlord shall resume providing such electrical
service to the demised premises. In no event shall bills rendered by Landlord
pursuant to this Section 44.2.1 include any charge for electricity furnished to
portions of the building other than the demised premises.
44.2.2 Rent Inclusion. For the purposes of this Section 44.2.2, Landlord
and Tenant agree that:
44.2.2.1 The term "Electric Rate" (including all applicable surcharges,
demand charges, energy charges, fuel adjustment charges, time of day charges,
taxes and other sums payable in respect thereof) shall mean the greater of
either:
4
<PAGE>
(i) The service classification pursuant to which Landlord purchases electricity
from the utility company servicing the building, or
(ii) The service classification pursuant to which Tenant would purchase
electricity directly from the utility company servicing the building; provided,
however, at no time shall the amount payable by Tenant for electricity be less
than the "Cost per Kilowatt Hour" (as defined in Section 44.2.2).
44.2.2.2. The term "Cost per Kilowatt Hour" shall mean the total cost for
electricity incurred by Landlord to service the building during a particular
time period (including all applicable surcharges, demand charges, energy
charges, fuel adjustment charges, time of day charges, taxes and other sums
payable in respect thereof) divided by the total kilowatt hours purchased by
Landlord during such period.
44.2.2.3 As long as Tenant is not in default under any of the covenants of
this lease, including, without limitation, payment of the fixed annual rent and
any additional rent, Landlord shall furnish Tenant with all such electric energy
reasonably required in connection with the permitted use and occupancy of the
demise premises. In addition to the fixed annual rent payable hereunder, Tenant
shall pay for the cost of such service at the initial rate of $4,200.00 per
annum (the "Minimum Electric Charge"), which payments shall be made in monthly
installments, with monthly installments of fixed annual rent, as additional
rent. At any time and from time to time following the commencement of the term,
Landlord may cause a survey to be made by an independent electrical engineer or
consultant selected by Landlord of the consumption of electric energy in the
demised premises. The survey will include a determination of the power
requirements of Tenant's equipment (including, but not limited to, any air
conditioning equipment provided by the Landlord) and of the lighting in the
demised premises and a determination of the periods of use and of such and
lighting. The results of the survey will be projected with such adjustments as
may be appropriate to arrive at an estimate of the annual consumption of
electric energy in the demised premises. On the basis of such estimate, applying
the Electric Rate to Tenant's usage, the estimated cost attributable to the
furnishing by Landlord of such quantity of electric energy to the demised
premises shall be determined. If such estimated cost shall be greater than the
sum set forth above, then the additional rent per annum shall be increased as of
the date of such survey so as equitably to reflect such) estimated additional
cost. The determination of Landlord's consultant or engineer shall be conclusive
hereunder. There may be, from time to time, a further appropriate adjustment in
such additional rent based on a survey as above provided, if, after the
commencement date of the term there is any change in the cost attributable to
the furnishing by Landlord of electric energy to the demised premises based upon
any change in any one or more of the following factors, (i) any material
alternation or material addition to Tenant's electrical equipment and/or
appliances in the demised premises, or (ii) any increase since the effective
date of the last adjustment or the commencement date of this lease, whichever
shall be applicable, in the Electric Rate, or (iii) use of additional electric
energy in the demised premises, i.e., use of electric energy in excess of such
reasonable quantity to be furnished as provided in the first sentence of this
Section 44.2.2.3. Notwithstanding any other terms and conditions of this Article
44, if the cost to Landlord of furnishing electricity service shall increase
because of an increase in the Electric Rate, then Landlord may, upon written
notice to Tenant, increase the additional rent by an amount equal to the
5
<PAGE>
amount set forth above multiplied by the percentage increase in the cost to
Landlord. The increased additional rent payable by virtue of such notice shall
commence as of the date of such increase in the rate payable by Landlord to such
public utility. Under no circumstances shall the electrical inclusion charge be
less than the Minimum Electric Charge.
44.2.3 Direct Meter. Using this method, Tenant, at Tenant's sole cost and
expense, shall obtain electricity directly from the utility company furnishing
electricity to the building. The cost of such service shall be paid by Tenant
directly to such utility company in accordance with the utility company's
billing schedule.
44.3 Restriction. Tenant's use of electric current in the demised premises
shall not at any time exceed the capacity of any of the electrical conductors
and equipment in or otherwise serving the demised premises. Tenant shall not
make or perform or permit the making of, any alterations to wiring,
installations or other electrical facilities in or serving the demised premises
without the prior consent of Landlord in each instance. Should Landlord grant
any such consent, all additional risers or other equipment required therefor
shall be installed by Landlord, and the cost thereof shall be paid by Tenant
upon Landlord's demand.
44.4 Failure of Utility Supplies. Unless the same shall arise due to the
willful act of Landlord in default or any of the terms and conditions or this
lease, 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 demised
premises by reason of any requirement act or omission of the public utility
company servicing the building with electricity or for any other reason
whatsoever.
44.5 Discontinuance. Landlord reserves the right to discontinue furnishing
electric energy to Tenant at any time upon sixty (60) days written notice to
Tenant, and from and after the effective date of such termination, Landlord
shall no longer be obligated to furnish Tenant with electric energy; provided,
however, that such termination date may be extended for a time reasonably
necessary for Tenant to make arrangements to obtain electric service directly
from the public utility company servicing the building. If Landlord exercises
such right of termination, this lease shall remain unaffected thereby and shall
continue in full force and effect; and thereafter Tenant shall diligently
arrange to obtain electric service directly from the public utility company
servicing the building, and may utilize the then existing electric feeders,
risers, and wiring servicing the demised premises to the extent available and
safely capable of being, used for such purposes and only to the extent of
Tenant's then authorized connected load. Landlord shall be obligated to pay no
part of any cost required for Tenant's direct electrical service.
44.6 Electrical Taxes. If any tax (other than, a federal, state or city
income tax) is imposed upon Landlord's receipt from the sale or resale of
electricity 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 to and included in the bill of, and paid by,
Tenant to Landlord, as additional rent.
6
<PAGE>
45. RENT ESCALATION - COST INCREASE:
45.1 Definition. For purposes of this article:
45.1.1. "Rate" shall mean the minimum regular hourly wage
rate, including adjustments of every kind and nature (including, without
limitation, all sums paid for "Fringe Benefits") as defined in Section 45.1.5,
and adjustments provided for in Section 45.1.5, and adjustments provided for in
45.1.6) prescribed for "Porters" (as defined in Section 45.1.4) for Class A
office buildings (or any successor category), pursuant to the present and any
successor agreement between the Realty Advisory Board on Labor Relations,
Incorporated (or any successor thereto) and Local 32B of the Building Service
Employees International Union, AFL-CIO (or any successor thereto), covering the
wage rates for Porters in such buildings ("Labor Agreement"); provided, however,
that, (1) if, at any time during the lease term, regular employment of Porters
occurs on days or during hours when the overtime or other premium pay rates are
in effect pursuant to the Labor Agreement, "Rate" shall mean the average hourly
wage rate, including adjustments of every kind and nature (including, without
limitation, Fringe Benefits and adjustments provided for in Section 45.1.6) for
the hours in a calendar week during which Porters are regularly employed (e.g.,
if, pursuant to the Labor Agreement, the regular weekly employment of Porters is
for forty (40) hours, at a regular hourly wage rate, including Fringe Benefits,
of $12.00 for the first thirty (30) hours and an overtime hourly wage rate,
including Fringe Benefits, of $15.00 for the remaining ten (10) hours, the
average hourly wage rate, including fringe Benefits, for the applicable period
shall be, before adjustment pursuant to the provisions of Section 45.1.6, the
weekly wage rate of $ 500.00 divided by the number of regular hours of
employment, or $12.75), divided and (ii) if, at any time during the lease term,
no Labor Agreement exists, "Rate" shall mean the average minimum regular hourly
wage rate, including adjustments of every kind and nature (including, without
limitation, Fringe Benefits and adjustments provided for in Section 45.1.6)
actually payable to Porters at the rate for Porters employed at Class A office
buildings as such buildings are presently described in the Labor Agreement,
except that at no time shall the amount payable be less than the amount being
paid by the Tenant pursuant to this section at the time the Labor Agreement
ceases to exist.
45-1.2 "Base Rate" shall mean the Rate in effect during the calendar year
1994.
45.1.3 "Multiplication Factor" shall mean 1,400.
45-1.4. "Porters" shall mean those employees who have been employed for
ten (10) years or more and who are engaged in the general maintenance and
operation of office buildings, classified as "others" in the current Labor
Agreement or, failing such classification in any subsequent Labor Agreement, the
most nearly comparable classification in such Labor Agreement.
45.1.5 In determining the Rate, the Base Rate or on each applicable
occasion pursuant to this lease, the Base Rate and the Rate, as specified in the
Labor Agreement, shall be adjusted, and the hourly cost of Fringe Benefits shall
be adjusted, and the hourly cost of Fringe Benefits shall be calculated, on the
basis of the number of hours Porters actually are to work pursuant to the Labor
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Agreement during the applicable calendar year (e.g., if the Labor Agreement is
predicated on a 2,080 hour work year (40 hours X 52 weeks) and Porters are paid
for the following time which they actually are not to work (Vacation - 120
hours, Holidays - 88 hours, Birthday - 8 hours, Medical Checkup - 16 hours.,
Sick Days - 80 Hours, Disaster Day - 8 hours, and Relief Time - 147 hours),
totalling 467 hours, then the Base Rate and the Rate, and the hourly cost of
Fringe Benefits as well, shall be calculated on the basis of Porters actually
working 1,613 hours (2,080 hours less 467 hours).
45.2 Escalation. If, in any year during the lease term, the Rate
exceeds the Base Rate, Tenant shall pay to Landlord, as additional rent, an
amount ("Expense Escalation") equal to the product of the Multiplication Factor
multiplied by 100% of the amount by which the Rate exceeds the Base Rate,
appropriately adjusted for any such period which is only partially within the
lease term. The Expense Escalation shall be payable in equal monthly
installments, commencing with the first monthly installment of fixed annual rent
due on or after the effective date of any increase in the Rate and continuing
thereafter until the effective date of any subsequent increase, whereupon such
installments shall be appropriately adjusted. Landlord shall furnish Tenant with
a statement itemizing Tenant's liability pursuant to this subdivision whenever
such liability arises or changes. Tenant's obligation to make such payments
shall survive the expiration date or any sooner termination of this lease.
Notwithstanding the foregoing, if, by reason of any law or any rule, order,
regulation or requirement of any governmental or quasi-governmental authority
having or asserting jurisdiction (collectively, "Law"), an increase in the Rate
is reduced or does not take effect, or increases in the Rate are limited or
prohibited, then, for the period covered by the Law ("Law Period"), the
applicable increase ("Increase") in the Rate for purposes of this articles,
shall be the increase in the Rate ("Prior Increase") which immediately preceded
the effective date of the Law. The Increase shall take effect on the date
following the expiration of the period for the ("Prior Increase") which
immediately preceded the effective date of the Law. The Increase shall take
effect on the date following the expiration of the period of the Prior increase
and an equivalent Increase shall take effect on each anniversary of such
effective date during the Law Period.
45.3 Notice of Escalation. Each notice given by Landlord pursuant to
Section 45.2 shall be binding upon Tenant unless, within thirty (30) days after
its receipt of such notice, Tenant notifies Landlord of its disagreement
therewith, specifying the portion thereof with which Tenant disagrees. Pending
resolution of such dispute, Tenant shall, without prejudice to his rights, pay
all amounts determined by Landlord to be due, subject to prompt refund by
Landlord (without interest) upon any contrary determination.
45.4 Failure to Bill. Landlord's failure to timely bill all or any portion
of the Expense Escalation (or any increase therein) for any period or periods
during the term (whether because of failure to timely consummate a Labor
Agreement or because of error or oversight of Landlord or its managing agent or
for any other reason) shall not constitute a waiver of Landlords right to
ultimately collect such amount, nor a waiver of Landlord's right to bill Tenant
at any subsequent time retroactively for the entire amount so unbilled, which
unbilled amount shall be payable with thirty (30) days after being so billed.
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46. REAL ESTATE TAX ESCALATION:
Tenant shall pay to Landlord, as additional rent, tax escalations in
accordance with this article.
46.1 Definitions. As used in this article, the following definitions shall
apply:
46.1.1 The term "Base Tax Year" as hereinafter set forth for the
determination of real estate tax escalation shall mean the New York City real
estate tax year commencing July 1, 1994 and ending June 30, 1995.
46.1.2 The term " Percentage" shall be deemed to mean .424%.
46.1.3 The term "Building Project" shall mean all of the land together
with the improvements thereon known as 90 West Street, 140 Cedar Street, New
York, New York.
46.1.4 The term "Comparative Year" shall mean the respective twelve (12)
months following the Base Tax Year, and each subsequent period of twelve (12)
months.
46.1.5 The term "Real Estate Taxes" shall mean the total of all taxes and
special or other assessments and/or vault charges levied, assessed or imposed at
any time by any governmental authority upon or against the Building Project, and
also any tax or assessment levied, assessed or imposed at any time by any
governmental authority in connection with the receipt of income or rents from
the Building Project to the extent that same shall be in lieu of all or a
portion of any of the aforesaid taxes or assessments, or additions or increases
thereof, upon or against the Building Project. If, due to a future change in the
method of taxation or in the taxing authority, or for any other reason, a
franchise, income, transit, profit or other tax or governmental imposition,
however designated, shall be levied against Landlord in substitution in whole or
in part for the Real Estate Taxes, or in lieu of additions to or increases of
the Real Estate Taxes, then such franchise, income, transit, profit or other tax
or governmental imposition shall be deemed to be included within the definition
of Real Estate Taxes for the purposes hereof. As to special assessments which
are payable over a period of time extending beyond the term of this lease, only
a pro rata portion thereof, covering the portion of the term of this lease
unexpired at the time of the imposition of such assessment, shall be included in
Real Estate Taxes. if, by law, any assessment may be paid in installments, then,
for the purposes hereof (i) such assessment shall be deemed to have been payable
in the maximum number of installments permitted by law, and (ii) there shall be
included in Real Estate Taxes, for each Comparative Year in which such
installments may be paid, the installments of such assessment so becoming
payable during such Comparative Year, together with interest payable during such
Comparative Year.
46.1.6 The phrase "Real Estate Taxes payable during the Base Tax Year"
shall mean that amount obtained by multiplying the valuation actually used by
the City of New York, of the Building Project (whether same be actual or a
transitional assessment), for purposes of billing Real Estate Taxes during the
Base Tax Year by the Base Tax Year rate for each $100.00 for such valuation.
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46.2 Increases. In the event that the Real Estate Taxes payable for any
Comparative Year shall exceed the amount of such Real Estate Taxes payable
during the Base Tax Year, Tenant shall pay to Landlord, as additional rent for
such Comparative Year, an amount equal to the Percentage of the excess (the
"Excess"). By or after the start of the Comparative Year following the Base Tax
Year, and by or after the start of each Comparative Year thereafter, Landlord
shall furnish to Tenant a statement of the Real Estate Taxes payable during the
Base Year and each Comparative Year, which statement shall reflect the amount of
the Excess to be paid by the Tenant pursuant to this Article 46. Tenant's
obligation to pay the amount herein provided for shall survive the expiration or
earlier termination of this lease.
46.3 Payment. The amount due pursuant to Section 50.2 shall be due and
payable within Ten (10) days after Landlord shall have delivered to Tenant a
statement setting forth the amount equal to the Percentage of the Excess. Bills
for the Real Estate Taxes shall be sufficient evidence of amount, for the
purpose of calculating the Percentage. In the event Tenant fails to pay its
Percentage of the Excess when due, Landlord may be entitled to any and all
remedies to which Landlord may be entitled under this lease for default in the
payment of rent. The failure of Landlord to bill Tenant for the Real Estate
Taxes due hereunder from Tenant in any fiscal year shall not prejudice the right
of Landlord to subsequently bill Tenant for such fiscal year or any subsequent
fiscal year.
46.4 Reassessments. If Landlord shall receive a refund of Real Estate
Taxes for any Comparative Year, Landlord shall credit against subsequent
payments of the Excess due under this lease, Tenant's Percentage of the net
refund (after deducting from such total refund the costs and expenses,
including, but not limited to, appraisal, accounting and legal fees of obtaining
the same, to the extent that such costs and expenses were not included in the
Real Estate Taxes for such Comparative Year); provided, however, such credit to
Tenant shall in no event exceed Tenant's payment of the Excess paid for such
Comparative Year. Should the Real Estate Taxes payable during the Base Tax Year
and/or for any Comparative Year be increased by final determination of legal
proceedings, settlement or otherwise, then Tenant shall be liable for its
Percentage of the increase with payment of the increase due from Tenant paid, as
additional rent, within ten (10) days of billing. Nothing contained in this
lease shall obligate Landlord to bring any application or proceeding seeking a
reduction in Real Estate Taxes or assessed valuation. Tenant, for itself and its
subtenants and successors in interest, hereby waives, to the extent permitted by
law, any right Tenant may now or in the future have to protest or contest any
Real Estate Taxes or to bring any application or proceeding seeking a reduction
in Real Estate Taxes or assessed valuation or otherwise challenging the
determination thereof, and Tenant hereby irrevocably constitutes and appoints
Landlord as Tenant's attorney-in-fact, such appointment being coupled with an
interest, in Tenant's name, place and stead, and on Tenant's behalf, to
initiate, pursue, withdraw, settle or compromise any such application,
proceeding or challenge that Tenant has or may have the right to bring. The
benefit of any discount for the early payment or prepayment of Real Estate Taxes
shall accrue solely to the benefit of Landlord and such discount shall not be
subtracted from Real Estate Taxes.
46.5 End of Term. Upon the date of any expiration or termination of this
lease a proportionate share of the Excess of the Real Estate Taxes for the
Comparative Year during which
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such expiration or termination occurs shall immediately become due and payable
by Tenant to Landlord, if not previously billed and paid. The proportionate
share shall be based upon the length of time that this lease shall have been in
existence during such Comparative Year. Landlord shall, as soon as reasonably
practicable, compute the Real Estate Taxes due from Tenant, which computation
shall either be based on that Comparative Year's actual figures or be an
estimate based upon the most recent statements prepared by Landlord and
furnished to Tenant. If an estimate is used, then Landlord shall cause
statements to be prepared on the basis of the Comparative Years actual figures
as soon as they are available, and within ten (10) days after such statement or
statements are prepared by Landlord and furnished to Tenant, Landlord and Tenant
shall make appropriate adjustments of any estimated payments previously made,
which shall survive any expiration or termination of this lease.
46.6 Failure to Bill. Any delay or failure of Landlord in billing for any
Real Estates Taxes due hereunder shall not constitute a waiver of or in any way
impair the continuing obligation of Tenant to pay such Real Estate Taxes.
47. LATE PAYMENTS:
It is agreed that the monthly installments of fixed annual rent under this
lease are due and payable in advance on the first day of each month during the
entire lease term. In the event that any monthly installment of fixed annual
rent, or any other payment required to be made by the Tenant under this lease
shall be overdue, a late charge of 4 cents ($.04) for each dollar so overdue may
be charged by the Landlord for each month, or fraction of each month) from its
due date until paid, for the purpose of defraying the expenses incurred in
handling delinquent payments.
48. ATTORNMENT:
48.1 Agreement to Attorn. Tenant agrees that if the lessor under any
ground or underlying lease or the holder of any mortgage, deed of trust or other
encumbrance which now or hereafter affects the building and/or the land upon
which it is situated shall enter into and become possessed of such real
property, whether through foreclosure action or otherwise, then, if this lease
is in full force and effect at such time, at the option of such lessor,
mortgagee or other encumbrancer, Tenant shall attorn to such lessor, mortgagee
or encumbrancer as its Landlord; and, in such event, such lessor, mortgagee or
encumbrancer shall not be liable to Tenant for any defaults theretofore
committed by Landlord and no such default shall give rise to any rights of
offset or deduction against the rent or additional rent payable under this
lease.
48.2 Additional Documents. The provisions for attornment in this article
shall not require the execution of any further instrument. However, if such
lessor, mortgagee or encumbrancer to which Tenant is required to attorn
reasonably requests a further instrument expressing such attornment, Tenant
agrees to execute the same within ten (10) days of request and if Tenant fails
so to do, Tenant hereby appoints Landlord Tenant's attorney-in-fact to execute
any such instrument for and on behalf of Tenant.
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49. LEASE NOT BINDING UNLESS EXECUTED:
Submission by Landlord of this lease for execution by Tenant, shall confer
no rights nor impose any obligations on either party unless and until both
Landlord and Tenant shall have executed this lease and duplicate originals
thereof shall have been delivered to the respective parties.
50. ASSIGNMENT AND SUBLETTING:
50.1 Landlord's Consent. Tenant, for itself, its heirs, distributees,
executors, administrators, legal representatives, successors and assigns,
expressly covenants that it shall not assign, or mortgage or encumber, this
lease or any of its rights or estates hereunder, sublet the demised premises, or
any part thereof, or suffer or permit the demised premises, or any part thereof,
to be used or occupied by others, without the prior written consent of landlord
in each instance. If this lease be assigned, or if the demised premises or any
part there of be sublet or occupied by anybody other then Tenant, Landlord may,
after default by Tenant, collect rent from the assignee, subtenant, or occupant,
and apply the net amount collected to the rent herein reserved, but no
assignment, subletting, occupancy, or collection shall be deemed a waiver of the
provisions hereof, the acceptance of the assignee, subtenant, or occupant as
Tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. Landlord's consent to an
assignment or subletting shall not, in any wise, be construed to relieve Tenant
from obtaining Landlord's express written consent to any further assignment or
subletting. In no event shall any permitted sublessee assign or encumber its
sublease, further sublet all or any portion of its sublet space, or otherwise
suffer or permit the sublet space, or any part thereof, to be used or occupied
by others, without Landlord's written consent in each instance.
50.2.1 Request for Consent-Assignment. If Tenant should have a bone-fide
intention to assign this lease, Tenant shall first give notice to Landlord of
such fact and Landlord shall then have the right to either (i) terminate this
lease as of the effective date of the proposed assignment (which in no event
shall be earlier than two (2) months nor later than (4) four months from
Landlord's receipt of Tenant's notice) as if it were the expiration date set
forth in this lease, or (ii) accept an assignment of this lease from Tenant and
Tenant and Landlord shall then promptly execute and deliver to each other
(Landlord may, however, elect a designee) in form satisfactory to Landlord's
counsel, an assignment and assumption of lease which shall be effective as of
such effective date.
50.2.2 Request for Consent-Sublease. If Tenant should have a bona-fide
intention to sublet the demised premises or any portion thereof, Tenant shall
first five notice to Landlord of such fact which such notice shall specify the
area that Tenant proposes to sublet, and the terms and rental-rate at which
Tenant proposes to sublet such space and Landlord shall then have the right to
either (i) terminate this lease as to the portion of the demised premises
affected by such subletting , or as to the entire demised premises in the case
of a subletting thereof, as of such effective date (which in no event shall be
earlier than two (2) months nor late nor later than four (4) months from
Landlord's receipt of Tenant's notice) (ii) in the case of a proposed subletting
of the entire demised premises accept an assignment of this lease from Tenant,
and Tenant and Landlord shall then promptly execute
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and deliver to each other (Landlord may, however, elect a designee) in form
reasonably satisfactory to Landlord's counsel, an assignment and assumption of
lease which shall be effective as of such effective date, or (iii) accept a
sublease from Tenant for the portion of the demised premises affected by such
proposed subletting, or the entire demised 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
proposed term of subletting, commencing with such effective date, at (x) the
rental terms reflected in the proposed sublease or (y) the rental terrms
contained in this lease on a per rentable square foot basis, as elected by
Landlord.
50.3 Landlord's Exercise of its Options. If Landlord exercises its option
to terminate this lease in accordance with Section (b) of this Article 50, then
this lease shall end and expire upon the date that such assignment or subletting
was to be effective or to commence, as the case may be, and the fixed rent and
additional rent shall be paid and apportioned to such date. If Landlord
exercises its option to accept an assignment of this lease or a subletting of
the demised premises, Tenant shall then execute and deliver to Landlord, an
assignment and assumption of lease or a sublease, as the case may be, in either
case, in a form reasonably satisfactory to Landlord's counsel.
If a sublease is so made it shall expressly:
(i) permit Landlord to make further sublease of all or any part of the
demised premises and (at no cost or expense to Tenant) to make and authorize any
and all changes, alternations, installations and improvements in such space as
Landlord may deem necessary for such subletting, at Landlord's expense;
(ii) negate any intention that the estate created under such sublease be
merged with any other estate held by either of the parties;
(iii) provide that Landlord shall accept the demised premises "as is", it
being intended that Tenant shall have no other cost or expense in connection
with the subletting of the demised premises;
(iv) provide that at the expiration of the term of such sublease tenant
will accept the demised premises in its then existing condition.
50.4 Reasonable Consent. In the event that Tenant complies with the
provisions of Section 50.2 of this Article 50 and Landlord does not exercise any
option provided to it thereunder, and provided that Tenant is not in default of
any of Tenant's obligations under this lease, beyond applicable notice and grace
periods, Landlord's consent (which must be in writing and in form reasonably
satisfactory to Landlord) to the proposed assignment of lease or subletting of
the entire demised premises shall not be unreasonably withheld or delayed
provided the following conditions have been satisfied:
50.4.1 In Landlord's reasonable judgement, the proposed assignee or
subtenant is engaged in such a business and the demised premises will be used in
such a manner, that: (x) is limited
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to the use expressly permitted under this lease; and (y) will not violate any
negative covenant as to use contained in any other lease of space in the
Building about which Tenant has been informed following its request to Landlord
for such information;
50.4.2 The proposed assignee or subtenant is a reputable person of good
character and with sufficient financial worth considering the responsibility
involved, and Landlord has been furnished with reasonable proof thereof;
50.4.3 Neither (i) the proposed assignee or sublessee nor (ii) any person
that, directly or indirectly, controls, is controlled by, or is under common
control with, the proposed assignee or sublessee, is then an occupant or tenant
of any part of the Building;
50.4.4 The proposed assignee or sublessee is not a person with whom
Landlord is then, or shall have been during the previous six (6) month period,
negotiating to lease space in the Building;
50.4.5 The proposed sublease shall be in form reasonably satisfactory to
Landlord and shall comply with the applicable provisions of this Article 50;
50.4.6 The amount of the aggregate rent to be paid by the proposed
subtenant is not less than the ten current market rent per rentable square foot
for the demised premises and the rental and other terms and conditions of the
sublease are the same as those contained in the proposed sublease furnished to
Landlord pursuant to Section 50.2;
50.4.7 Tenant shall reimburse Landlord on demand for any reasonable costs
that may be incurred by Landlord in connection with said assignment or sublease,
including the costs of making investigations as to the acceptability of the
proposed assignee or subtenant and legal costs incurred in connection with the
granting of any requested consent;
50.4.8 Tenant shall not have (a) advertised the availability of the
demised premises without prior written notice to, and approval by, Landlord or
(b) advertised the demised premises for subletting or assignment at a proposed
rental less than the fixed rent and additional rent at which Landlord is then
offering to lease other space in the Building;
50.4.9 The sublease shall not allow use of the demised premises (1) as a
restaurant, luncheonette, or otherwise for the preparation and/or sale of food
for on or off premises consumption; (2) as a discount store; (3) as a multiple
tenancy store; (4) by a foreign or domestic governmental agency; (5) as a
betting parlor or gambling casino; or (6) by a utility company; and
50.4.10 The sublease shall not provide for an option on behalf of the
subtenant thereunder to extend or renew the term of such sublease.
50.5 Time Period.In the event that (i) Landlord fails to exercise any of
its options under Section 50.2 of this Article 50 and consents to a proposed
assignment of this lease or sublease of all
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or a portion of the demised premises and (ii) Tenant fails to execute and after
Landlord shall have granted such consent, or if Tenant shall change the terms,
in any material respect, or rental rate of the proposed subletting set forth in
Tenant's notice to Landlord pursuant to the provisions of Section 50.2 (ii)
hereof, then Tenant shall again comply with all of the provisions and conditions
of Section 50.2, before assigning this lease or subletting the demised premises.
50.6.1 Sublease Conditions. Each subletting pursuant to this Article So
shall be subject to all of the covenants, agreements, terms, provisions and
conditions contained in this lease. Notwithstanding any such subletting and/or
acceptance of rent or additional rent by Landlord from any subtenant, Tenant
shall and will remain fully liable for the payment of the fixed rent and
additional rent due, and to become due, hereunder and for the performance of all
of the covenants, agreements, terms, provisions and conditions contained in the
lease on the part of Tenant to be performed and for all acts and omissions of
any licensee, subtenant, or any other person claiming under or through any
subtenant that shall be in violation of any of the obligations of this lease,
and any such violation shall be deemed to be a violation by Tenant. Tenant
further agrees that, notwithstanding any such subletting, no other and further
subletting of the demised premises by Tenant, or any person claiming through or
under Tenant (except as provided in Section 50.9 of this Article So shall, or
will, be made, except upon compliance with, and subject to, the provisions of
this Article. If Landlord shall decline to give its consent to any proposed
assignment or sublease, or if Landlord shall exercise its option under Section
50.2, Tenant shall indemnify, defend and hold Landlord harmless from and against
any and all losses, liabilities, damages, costs and expenses (including
reasonable counsel fees) resulting from any claims that may be made against
Landlord by the proposed assignee or subtenant or by any brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease.
50.6.2 With respect to each and every sublease or subletting, it is
further agreed that:
50.6.2.1 No subletting shall be for a term ending later than one (1) day
prior to the expiration date of this lease;
50.6.2.2 No sublease shall be valid and no subtenant shall take possession
of the demised premises, or any part thereof, until an executed counterpart of
such sublease has been delivered to Landlord; and
50.6.2.3 Each sublease shall provide that it is subject and subordinate to
this lease and to the matters to which this lease is, or shall be, subordinate,
and that, in the event of termination, re-entry, or dispossess by Landlord under
the lease, Landlord may, at its option, take over all of the right, title and
interest of Tenant as sublandlord under such sublease, and such subtenant shall,
at Landlord's option, attorn to Landlord pursuant to the then executory
provisions of such sublease, except that Landlord shall not (x) be liable for
any previous act or omission of Tenant under such sublease, (y) be subject to
any offset, not expressly provided in such sublessee, that theretofore accrued
to such subtenant against Tenant, or (z) be bound by any previous modification
of such sublease or by any previous prepayment of more than one month's fixed
rent or any additional rent then due.
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50.7 Assignment Conditions. Any assignment or transfer shall be made only
if, and shall not be effective until, the assignee shall execute, acknowledge
and deliver to Landlord, an agreement, in form and substance satisfactory to
Landlord, whereby the assignee shall assume all of the obligations of this lease
on the part of Tenant to be performed or observed and whereby the assignee shall
agree that the provisions contained in this Article 50 shall, notwithstanding
such assignment or transfer, continue to be binding upon it in respect of all
future assignments and transfers. The original named Tenant covenants that,
notwithstanding and assignment or transfer, whether or not in violation of the
provisions of this lease, and notwithstanding the acceptance of fixed rent
and/or additional rent by Landlord from an assignee, transferee, or any other
party, the original named Tenant shall remain fully liable for the payment of
the fixed rent and additional rent and for the other obligations of this lease
on the part of Tenant to be performed or observed.
50.8 Excess Rent. If Landlord shall give its consent to any assignment of
this lease or to any sublease, Tenant shall, in consideration therefor, pay to
Landlord, as additional rent:
(i) in the case of an assignment, an amount equal to all sums and other
consideration paid to Tenant by the assignee for, or by reason of, such
assignment, including all sums paid for the sale of Tenant's fixtures, leasehold
improvements, equipment, furniture, furnishings, or other personal property,
less, in the case of a sale thereof, the then net unamortized or undepreciated.
cost thereof determined on the basis of Tenant's federal income tax returns; and
(ii) in the case of a sublease, any rents, additional charges, or other
consideration payable under the sublease by the subtenant to Tenant that are in
excess of the fixed 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 all sums paid for
the sale or rental of Tenant's fixtures, leasehold improvements, equipment,
furniture or other personal property, less, in the case of a sale thereof, the
then net unamortized or undepreciated cost thereof determined on the basis of
Tenant's federal income tax Returns.
The sums payable under this Section 50.8 shall be paid to Landlord as and
when payable by the assignee or subtenant to Tenant.
50.9 Corporate Tenant. The transfer of a majority of the issued and
outstanding stock of any corporate tenant or subtenant of this lease, however
accomplished, and whether in a single transaction or in a series of related or
unrelated transactions, will be deemed an assignment of this lease or of such
sublease subject to the provisions of this Article 50.
50.10 No Release. The joint and several liability of Tenant and any
immediate or remote successor in interest to Tenant, and the due performance of
the obligations of this lease on Tenant's part to be performed or observed,
shall not be discharged, released, or impaired in any respect by any agreement
or stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this lease.
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51. INTEREST:
If Tenant fails to pay fixed annual rent, additional rent or any other
amounts payable hereunder when due, such amounts shall bear interest from the
due date at the prime rate of Chemical Bank plus four percent (4%), in no event
to exceed the maximum rate of interest permitted by law.
52. SPECIAL SERVICES:
Upon Tenants' request, Landlord or its managing agent may, but, except as
otherwise expressly provided in this lease, shall not be obligated to, perform
or cause to be performed for Tenant from time to time various construction,
repair and maintenance work, moving services and other types of work or services
in or about the demised premises and the building. If such work or services
shall be performed for Tenant, Tenant agrees to pay therefor either the standard
charges of Landlord or its managing agent in effect from time to time, if any,
or the amount agreed to be paid for such services. Tenant agrees to pay all
such, charges within ten (10) days after Landlord or Landlord's managing agent
has submitted a bill therefor and, unless otherwise expressly provided in
writing, such charges shall be payable as additional rent under this lease.\
53. DAMAGE OR DESTRUCTION:
53.1 Insured Casualties. In the event the building and/or the demised
premises is damaged by fire or other perils covered by Landlord's insurance,
Landlord shall have the following rights and obligations:
53.1.1 In the event of total destruction, at Landlord's option, as soon as
reasonably possible thereafter, commence repair, reconstruction an restoration
of the building and/or the demised premises and prosecute the same diligently to
completion, in which event this lease shall remain in full force and effect; or
within ninety (90) days after such damage, elect not to so repair, reconstruct
or restore the building and/or the demised premises, in which event this lease
shall terminate. In either event, Landlord shall give Tenant written notice of
its intention within such ninety (90) day period. In the event Landlord elects
not restore the building and/or the demised premises, this lease shall be deemed
to have terminated as of the date of such total destruction.
53.1.2 In the event of a partial destruction of the building and/or the
demised premises, to an extent not exceeding twenty-five percent (25%) of the
full insurable value thereof, and if the damage thereto is such that the
building and/or the premises may be repaired, reconstructed or restored within a
period of ninety (90) days from the date of the happening of such casualty and
if Landlord will receive insurance proceeds sufficient to cover the cost of such
repairs, then Landlord shall commence and proceed diligently with the work of
repair, reconstruction and restoration and this lease shall continue in full
force and effect. If such work of repair, reconstruction and restoration shall
require a period longer than ninety (90) days or exceeds twenty-five percent
(25%) of the full insurable value thereof, or if such insurance proceeds will
not be sufficient to cover the cost of such repairs, then Landlord either may
elect to so repair, reconstruct or restore and this lease shall continue
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in full force and effect, or Landlord may not to repair, reconstruct or restore
and the lease shall then terminate. Under any of the conditions of this Section
53.1.2 Landlord shall give written notice to Tenant of its intention within such
ninety (90) day period. In the event Landlord elects not to restore the building
and/or the demised premises, this lease shall be deemed to have terminated as of
the date of such partial destruction.
53.2 Release Upon Termination. Upon any termination of this lease under
any of the provisions of this Article 53, the parties shall be released without
further obligation to the other from the date possession of the demised premises
is surrendered to Landlord except for items which have theretofore accrued and
are then unpaid.
53.3 Abatement of Rent. In the event of repair, reconstruction and
restoration by Landlord as herein provided, provided that the casualty was not
caused by Tenant, the rental payable under this lease shall be abated
proportionately with the degree to which Tenant's use of the demised premises is
impaired during the period of such repair, reconstruction or restoration. Tenant
shall not be entitled to any compensation or damages for loss in the use of the
whole or any part of the demised premises and/or any inconvenience or annoyance
occasioned by such damage, repair, reconstruction or restoration.
53.4 Force Majeure. Tenant shall not be released from any of its
obligations under this lease except to the extent and upon the conditions
expressly stated in this Article 53. Notwithstanding anything to the contrary
contained in this Article 53, if Landlord is delayed or prevented from repairing
or restoring the demised premises within one year (1) year after the occurrence
of such damage or destruction by reason of acts of God, war, governmental
restrictions, inability to procure the necessary labor or materials, or other
cause beyond the control of Landlord, Landlord shall be relieved of its
obligation to make such repairs or restoration and Tenant shall be release from
its obligations under this lease as of the end of such one (1) year period.
53.5 Uninsured Casualty. If damage is due to any cause other than fire or
other peril covered by extended coverage insurance, Landlord may elect to
terminate this lease.
53.6 Landlord's Obligation. If Landlord is obligated to or elects to
repair or restore as herein provided, Landlord shall be obligated to make repair
or restoration only of those portion of the building and the demised premises
which were originally provided at Landlords expense, and the repair and
restoration of items not provided at Landlord's expense shall be the obligation
of Tenant.
53.7 End of Term. Notwithstanding anything to the contrary contained in
this Article 53, Landlord shall not have any obligation whatsoever to repair,
reconstruct or restore the demised premises when the damage resulting from
casualty covered under this Article 53 occurs during the last twelve (12) months
of the term of this lease or any extension hereof.
54. MODIFICATION FOR MORTGAGE:
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If, in connection with existing financing or obtaining financing or
refinancing for the building in the future, a lender shall request reasonable
modifications to this lease, Tenant will not reasonably withhold or delay its
consent thereto beyond ten (10) days, provided that such modifications do not
increase the obligations of Tenant hereunder (except, perhaps, to the extent
that Tenant may be required to give notices of any defaults by Landlord to such
lender and/or permit the curing of such defaults by Landlord to such lender with
the granting of such additional time for such curing as may be required for such
lender to get possession of the building) or adversely affect the leasehold
interest hereby created. In no event shall a requirement that the consent of any
such lender be given for any modification, termination or surrender of the lease
be deemed to adversely affect the leasehold interest hereby created.
55. CLEANING SERVICES:
It is understood and agreed that the rent payable hereunder includes
payment for building standard cleaning services, which includes daily office
cleaning, removal of trash, and window cleaning, but it is further understood
and agreed that all waxing, washing of floor, cleaning of blinds and light
fixtures, if any, shall be done at the sole cost and expense of the Tenant.
56. EXTERMINATION:
For any extermination work required to be performed by Tenant pursuant to
Article 4 of this lease, Tenant shall utilize for such extermination, services
only contractors designated by Landlord in Landlord's sole discretion.
57. ODORS:
57.1 Obligation to Eliminate. Tenant shall not permit any unusual or
obnoxious odors to emanate from the demised premises. Tenant will, within five
(5) days after written notice from Landlord, install at its own cost and
expense, reasonable control devices or procedures to eliminate such odors, if
any. In the event such condition is not remedied within such five (5) day
period, Landlord may, at its discretion, either (i) cure such condition and add
the cost and expense incurred by Landlord therefor to the next monthly rent to
become due and Tenant shall pay such amount as additional rent; or (ii) treat
such failure on the part of Tenant to eliminate such obnoxious odors as a
material default hereunder entitling Landlord to any of its remedies pursuant to
the terms of this lease. Landlord shall have the right to enter the demised
premises at any time to inspect the same and ascertain whether they are clean
and free of odors.
57.2 Special Devices. In the event Landlord requires Tenant to install
reasonable control devices or procedures to eliminate such odors, the material,
size and location of such installations shall be subject to Landlord's prior
written approval. Such work shall not be commenced until plan and specifications
therefor have been submitted to and approved by Landlord.
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58. FLOOR LOADS:
Tenant shall not place a load upon any floor of the demised premises
exceeding the floor load per square foot area which it was designed to carry and
which is allowed by law. Tenant agrees to position all machines, safes, business
machines, printing equipment or other mechanical equipment in such locations as
to minimize noise and vibration emanating therefrom. All of such installations
shall be placed and maintained by Tenant, at Tenant's sole expense, in setting
sufficient, in Landlord's sole judgement, to absorb and prevent, vibration,
noise and annoyance to other tenant's in the building. All of such machines
and/or equipment installed by Tenant in the demised premises will not at any
time be in violation of existing laws affecting the demised premises or in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part.
59. AIR CONDITIONING & VENTILATION:
59.1 Landlord to Maintain. Tenant shall be permitted the use of the air
conditioning equipment servicing the demised premises (the "Air Conditioning
Unit"), which Air Conditioning Unit shall remain Landlord's property. Landlord
shall keep, maintain, repair, restore and replace the Air Conditioning Unit and
all of the ducts, dampers, registers, grilles and appurtenances utilized in
connection therewith in good working order and in compliance with all law,
rules, and regulations relating thereto. Any restoration or replacement of all
or any part of the Air Conditioning Unit and related equipment shall be in
quality and class equal to the original work and installation.
59.1.1 Landlord, at Landlord's expense, shall furnish air conditioning to
the demised premises through the Air Conditioning Unit, as may be required for
reasonably comfortable occupancy of the demised premises, from May 15th through
September 30th (the "AC Season") from 8:00 A.M. to 6:00 P.M. on business days.
Business days as used in this Article shall mean all days during the AC Season
except Saturdays, Sundays and the days observed by the Federal or the New York
State or City governments as legal holidays.
59.2 Excess Use. Use of the demised premises, or any part thereof, to a
manner exceeding the design conditions thereof (including occupancy and
connected electrical load) by heating and air conditioning service in the
demised premises, or rearrangement of partitioning which interferes with normal
heating and air conditioning service in the demised premises, or the use of
computer or data processing machines, may require changes in the systems
servicing the demised premises. Such changes so occasioned, shall be made by
Landlord, at Tenant's expense. Tenant agrees to lower and keep closed the
venetian blinds or other window coverings in the demised premises whenever
required for the proper operation of the air conditioning service. No
supplemental heating, ventilating or air conditioning equipment shall be
installed or utilized by Tenant in the demised premises without Landlord's prior
consent.
59.3 Interruption of Service. No diminution or abatement of rent or
additional rent or other compensation or claim of constructive eviction shall or
will be claimed by Tenant by reason of any
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interruption, curtailment or suspension of the Air-conditioning Unit or air
conditioning system for the building.
60. HOLD-OVER:
If Tenant holds over in possession after the expiration or sooner
termination of the original term or of any extended term of this lease, such
holding over shall not be deemed to extend the term or renew the lease, but such
holding over shall be on a month-to-month basis upon the covenants and
conditions herein set forth except that the fixed annual rent due hereunder, and
all additional rent, shall be equal to two hundred percent (200%) of the fixed
annual rent and additional rent last payable under this lease.
Neither the billing nor the collection of fixed annual rent and additional
rent during any such holdover period shall be deemed a waiver, of any right of
Landlord to collect damages for Tenants failure to vacate the demised premises
after the expiration or sooner termination of this lease last payable under this
lease. The provisions of this article shall survive the expiration or sooner
termination of this lease.
61. BUILDING DIRECTORY:
At the written request of Tenant, Landlord shall list on the building's
directory the name of Tenant, any trade name of Tenant, any trade name under
which Tenant has the right to operate, any other entity permitted to occupy any
portion of the demised premises under the terms of this lease, up to a maximum
of ___ listings without charge to the Tenant. If requested by Tenant, Landlord
may (but shall not be required to) list the name of Tenant's subsidiaries and
affiliates; however, the listing of any name other than that of Tenant shall
neither grant such party or entity any right or interest in this lease or in the
demised premises nor constitute Landlord's consent to any assignment or sublease
to, or occupancy of the demised premises by, such party or entity. Except for
the name of Tenant, any such listing may be terminated by Landlord, at any time,
without notice.
62. ADDITIONAL RENT:
All payments other than the fixed annual rent to be made by Tenant
pursuant to this lease shall be deemed additional rent and, in the event of any
nonpayment thereof, Landlord shall have all rights and remedies provided for
herein or by law for nonpayment of rent. Tenant shall have fifteen (15) days
from its receipt of any additional rent statement to notify Landlord, by
certified mail, return receipt requested, that it disputes the correctness of
such statement. After the expiration of such fifteen (15) day period, such
statement shall be binding and conclusive upon Tenant. If Tenant disputes the
correctness of any such statement, Tenant shall, as a condition precedent to its
right to contest such correctness, make payment of the additional rent billed,
without prejudice to its position. If such dispute is finally determined in
Tenant's favor, Landlord shall refund to Tenant the amount overpaid.
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63. SIGNS:
Tenant shall not, without the prior written consent of the Landlord,
install nor continue the use of any signs on the windows of the demised premises
or on the door or in the hallways on the floor on which the demised premises are
located or elsewhere in building common areas. Tenant shall submit to Landlord a
rendering of any new proposed sign which shall be uniform to those in the
building. If Landlord gives its consent to a sign as provided for in this
article then Tenant, at Tenant's own cost and expense, shall keep such sign in
good and working condition.
64. MECHANICS LIENS:
64.1 Landlord not Liable. Notice is hereby given that Landlord shall not,
under any circumstances, be liable to pay for any work, labor or services
rendered or materials furnished to or for the account of Tenant upon or in
connection with the demised premises, and that no mechanic's or other liens for
work, labor or services rendered or materials furnished to or for the account of
Tenant shall, under any circumstances, attach to or affect the reversionary or
other estate or interest of Landlord in or to the demised premises or in and to
any alterations, repairs or improvements to be erected or made thereon.
64.2 No Liens. Tenant shall not suffer nor permit, during the term hereby
granted, any mechanic's or other liens for work, labor, services or materials
rendered or furnished to or for the account of the Tenant upon or in connection
with the demised premises or to any improvements erected or to be erected upon
the same, or any portion thereof; and it is understood that Tenant shall, obtain
and deliver unconditional written waivers of mechanic's liens as specifically
set forth in Article 3 of the lease. Nevertheless, Tenant shall hold Landlord
and the demised premises harmless from all liens or charges, of whatever nature
or description, arising from, or in consequence of, any alternations or
improvements that the Tenant shall make, or cause to be made, upon the demised
premises.
64.3 Obligation to Remove. If a notice of mechanic's lien is filed against
the demised premises or the building for labor or materials alleged to have been
furnished, or to be furnished to or for Tenant or to or for someone claiming
under Tenant and if Tenant shall fail to take such action as shall cause such
lien to be discharged within ten (10) days after the filing of such notice,
Landlord may pay the amount of such lien or discharge it by deposit or by
bonding proceeding, and in the event of such deposit or bonding proceeding,
Landlord may require the lienor to prosecute an appropriate action to enforce
the lienor's claim. In such case, Landlord may pay any judgement recovered on
such claim. Any amount paid or expense incurred by Landlord, and any expense
incurred or sum of money paid by Landlord by reason of the failure of Tenant to
comply with any provision of this lease, or in defending any such action, shall
be deemed to be additional rent for the demised premises, and shall be due and
payable by Tenant to Landlord on demand.
65. TENANTS LIABILITY FOR CONSTRUCTION:
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65.1 Tenant's Responsibilities. In the event that Tenant performs any
construction or alternations at the demised premises, Landlord shall not be
responsible for any structural defect, latent or otherwise, in the demised
premises, any requirement for the removal of asbestos or change of conditions
elsewhere in the building or in the demised premises resulting from Tenant's
construction or alternation, or for any damages to same or to goods or things
contained or placed thereon or in the vicinity thereof.
65.2 Indemnity. Tenant will indemnify and save Landlord harmless from and
against any and all liabilities, obligations, damages, penalties, claims, costs,
charges and expenses including reasonable attorney's fees, which may be imposed
upon or incurred by or asserted against Landlord by reason of any of the
following occurring during the term of this lease:
65.2.1 Any work or thing done by Tenant or any agent, contractor,
employee, licensee or invitee of Tenant in, on or about the demised premises or
any part thereof;
65.2.2 Any use, non-use, possession, occupation, condition, operation,
maintenance or management by Tenant of the demised premises, yards or
passageways to and from the addition to the existing building;
65.2.3 All fines, suits, proceedings, claims, demands and actions or any
kind or nature whatsoever brought by anyone whomsoever arising or growing out of
or in any way connection with Tenant's use, operation and maintenance or the
demised premises;
65.2.4 Any accident, injury, or damage to any person or property occurring
in the demised premises or any part thereof; and
65.2.5 Any failure on the part of Tenant to perform or comply with any of
the agreements, terms, or conditions contained in this lease on its part to be
performed or complied with. In the event that any action or proceeding shall be
brought by Landlord by reason of any claim covered by this Section 65.2, Tenant,
upon written notice from Landlord, will at Tenant's sole cost and expense resist
or defend the same.
65.3 Floor Load. Tenant has been advised that Landlord makes no
representation as to the load bearing capacity of the structure.
66. TENANT'S WORK:
Prior to Tenant commencing any work with respect to any alteration or
improvement at the demised premises, Tenant shall satisfy each and every
conditions set forth below.
66.1 Landlord's Consent. Tenant shall, at its sole cost and expense,
deliver to Landlord professionally prepared plans and specifications. Landlord
shall not unreasonably withhold its consent to such plans.
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66.2 Quality of Work. Subsequent to the delivery and approval by Landlord
of Tenant's plans and specifications, Tenant shall employ its own contractor in
connection with the construction to be performed at the demised premises in
accordance with those approved plans and specifications. Tenant agrees that all
work to be performed shall be done in accordance with good building standards
and shall be further performed in a professional and workmanlike manner. All of
Tenants work shall be done in compliance with this lease in accordance with all
governmental regulations, with Tenant being responsible, at its own cost and
expense, for obtaining permits and approvals, and any and all other work or
alternations which may be required in connection with or resulting from Tenants
proposed work, including asbestos inspection and removal, if necessary.
Furthermore, Tenant agrees that all work to be performed by any of the trades
employed shall in no way affect work being performed at the building by Landlord
and the unions used by Landlord or its contractors.
66.3 Bonds. At Landlord's option, Tenant shall provide Landlord with
payment and performance bonds covering any work to be performed by Tenant which
run in favor of Landlord, and shall further issue to Landlord, if requested, a
hold harmless and indemnification agreement relative to such proposed work.
66.4 Insurance. Tenant shall provide such additional insurance coverage as
may be requested by Landlord in connection with any work, in amounts
satisfactory to Landlord, which shall protect Landlord's interest during the
course of construction and, in addition, Tenant shall provide Landlord with a
certificate of insurance reflecting such coverage, and the naming of Landlord,
its agents and employees, as additional insureds.
66.5 Material Breach. In the event Tenant shall violate any of the
provisions of this article, the same shall be considered a material breach of
this lease and Landlord shall be entitled to immediately avail itself of all
legal remedies that it is entitled to with respect to such breach.
67. BUILDING PLANNING:
In the event Landlord requires the demised premises for use in conjunction
with another suite or for other reasons connected with the building planning
program, upon notifying Tenant in writing, Landlord shall have the right to move
Tenant to other comparable space in the building, at Landlord's sole cost and
expense, and the terms and conditions of this lease shall remain in full force
and effect, except that a revised description of the demised premises shall be
added to this lease by way of amendment.
68. ESTOPPEL CERTIFICATE:
In addition to the items set forth in Article 35 of the lease, the
certificate requested by Landlord of Tenant may also require Tenant to certify
that there are no current defaults under this lease by either Landlord or
Tenant, except as specified in Tenant's statement, and such other matters as may
be requested by Landlord. Landlord and Tenant intend that any statement
delivered pursuant
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to Article 35 and this article may be relied upon by any mortgagee, beneficiary,
purchaser or prospective purchaser of the building or any interest therein.
Tenant's failure to deliver such statement within ten (10) days of request
shall be conclusive upon Tenant:
(i) That this lease is in full force and effect, without modification
except as may be represented by Landlord;
(ii) That there are no uncured defaults in Landlord's performance; and
(iii) That not more than one (1) month's rent has been paid in advance.
69. LIMITATION ON LABILITY:
In consideration of the benefits accruing hereunder, Tenant and all
successors and assigns covenant and agree that, in the event of any actual or
alleged failure, breach or default hereunder by Landlord:
(i) The sole and exclusive remedy shall be against Landlord's interest in
the building and Landlord shall have no personal liability hereunder;
(ii) No partner, officer, employee or agent of Landlord shall have any
personal liability under this lease, or shall be sued or named as a party in any
suit or action (except as may be necessary to secure jurisdiction of Landlord);
(iii) No service of process shall be made against any partner, officer,
employee or agent of Landlord (except as may be necessary to secure jurisdiction
of Landlord);
(iv) No partner, officer, employee or agent of Landlord shall be required
to answer or otherwise plead to any service of process;
(v) No judgment will be taken against any partner, officer, employee or
agent of Landlord; and
(vi) Any judgment taken against any partner, officer, employee, or agent
of Landlord may be vacated and set aside at any time nunc pro tunc.
70. MISCELLANEOUS:
70.1 Entire Agreement. This lease contains the entire agreement between
the parties, and any agreement hereafter made shall not operate to change,
modify, or discharge this lease in whole or in part unless such agreement is in
writing and signed by the party sought to be charged therewith.
70.2 Governing Law. This lease shall be governed in all respects by the
laws of the State of New York.
70.3 Saving Clause. If any provision of this lease, or its application to
any situation shall be invalid or unenforceable to any extent, the remainder of
this lease, or the application thereof to
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situations other than that as to which is invalid or unenforceable, shall be not
affected thereby, and every other provision of this lease shall be valid and
enforceable to the fullest extent permitted by law.
71. LANDLORD'S WORK:
Tenant has inspected the space and agrees to take them in their as is
condition. Landlord agrees at sole cost and expense to do the following work in
a building standard manner:
1. Paint the premises in the building standard manner.
2. Carpet the premises.
This Rider has been executed concurrently with the lease.
LANDLORD TENANT
FGP 90 West Street, Inc.
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By: /s/ Bill Nikolis By: /s/ Robert Samila
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Its: Vice President Its: President
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By: By:
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Its: Its:
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