<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 10-Q
(Mark One)
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1997
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______to_______
Commission File No. 1-5439
DEL LABORATORIES, INC.
----------------------
(Exact name of registrant as specified in its charter)
DELAWARE 13-1953103
- ------------------------------- ----------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
565 Broad Hollow Road, Farmingdale, New York 11735
--------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (516) 844-2020
------------------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
YES (X) NO ( )
The number of shares of Common Stock, $1 par value, outstanding as
of November 12, 1997 was 5,702,205.
<PAGE>
DEL LABORATORIES, INC. AND SUBSIDIARIES
Index
<TABLE>
<CAPTION>
Page No.
--------
<S> <C>
Financial Statements:
Consolidated Condensed Balance Sheets as of
September 30, 1997 and December 31, 1996 3
Consolidated Condensed Statements of
Earnings for the three and nine months
ended September 30, 1997 and 1996 4
Consolidated Condensed Statements of Cash Flows
for the nine months ended September 30, 1997 and 1996 5
Notes to Consolidated Condensed Financial Statements 6
Management's Discussion and Analysis of Financial
Condition and Results of Operations 7
Other Information 9
Signatures 10
</TABLE>
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PART 1 - FINANCIAL INFORMATION
Item 1. Financial Statements
DEL LABORATORIES, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
SEPTEMBER 30, 1997 AND DECEMBER 31, 1996
(In thousands except for share and per share data)
<TABLE>
<CAPTION>
September 30 December 31
Assets 1997 1996
------ ------------ ------------
(UNAUDITED)
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 14,128 $ 14,516
Accounts receivable-less allowance for
doubtful accounts of $1,400
and $1,500, respectively 29,012 30,781
Inventories 46,296 33,788
Deferred income taxes 2,250 2,250
Prepaid expenses and other current assets 1,586 2,164
------------ ------------
Total current assets 93,272 83,499
Property, plant and equipment, net 33,548 26,628
Intangibles arising from acquisitions, net 8,232 8,497
Other assets 6,612 3,758
------------ ------------
Total assets $ 141,664 $ 122,382
------------ ------------
------------ ------------
Liabilities and Shareholders' Equity
------------------------------------
Current liabilities:
Current portion of note payable $ 491 $ -
Accounts payable 21,115 17,338
Accrued liabilities 18,273 14,895
------------ ------------
Total current liabilities 39,879 32,233
Note payable, less current portion 3,920 -
Long-term pension liability 4,132 4,132
Deferred income taxes 1,175 1,175
Long-term debt 40,000 40,000
------------ ------------
Total liabilities 89,106 77,540
------------ ------------
Shareholders' equity:
Preferred stock $.01 par value, authorized
1,000,000 shares; no shares issued - -
Common stock $1 par value, authorized
10,000,000 shares; issued 8,784,514 shares 8,785 8,785
Additional paid-in capital 6,382 4,321
Foreign currency translation adjustment (413) (547)
Retained earnings 70,922 61,353
------------ ------------
85,676 73,912
Less: Treasury stock, at cost, 3,115,407 shares
and 3,141,949 shares, respectively (31,536) (27,334)
Receivable for stock options exercised (1,582) (1,736)
------------ ------------
Total shareholders' equity 52,558 44,842
------------ ------------
Total liabilities and shareholders' equity $ 141,664 $ 122,382
------------ ------------
------------ ------------
</TABLE>
See accompanying notes to unaudited consolidated condensed financial statements.
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DEL LABORATORIES, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF EARNINGS
FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996
(In thousands except for per share data)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
September 30 September 30 September 30 September 30
1997 1996 1997 1996
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Net sales $ 68,865 $ 60,354 $ 198,174 $ 174,507
Cost of goods sold 26,541 27,613 77,070 74,644
Selling and administrative expenses 35,342 27,516 101,584 85,166
------------ ------------ ------------ ------------
Operating income 6,982 5,225 19,520 14,697
Interest expense 1,029 941 2,970 2,844
Interest income (172) (80) (389) (282)
------------ ------------ ------------ ------------
Interest expense, net 857 861 2,581 2,562
------------ ------------ ------------ ------------
Earnings before income taxes 6,125 4,364 16,939 12,135
Income taxes 2,450 1,789 6,776 4,975
------------ ------------ ------------ ------------
Net earnings $ 3,675 $ 2,575 $ 10,163 $ 7,160
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Weighted average common shares outstanding (A) 6,560 6,456 6,483 6,484
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Earnings per common share (A) $ 0.56 $ 0.40 $ 1.57 $ 1.10
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Dividends per common share (A) $ 0.035 $ 0.026 $ 0.105 $ 0.079
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
</TABLE>
(A) September 30, 1996 amounts are adjusted to reflect a 4-for-3 stock split
effective November 8, 1996.
See accompanying notes to unaudited consolidated condensed financial statements.
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DEL LABORATORIES, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996
(In thousands)
(UNAUDITED)
<TABLE>
<CAPTION>
September 30 September 30
1997 1996
--------------- ---------------
<S> <C> <C>
Cash flows from operating activities:
Net earnings $ 10,163 $ 7,160
Adjustments to reconcile net earnings to net cash
provided by operating activities:
Depreciation and amortization 3,181 3,596
Other non-cash operating items 375 698
Changes in operating assets and liabilities:
Accounts receivable 1,669 (6,898)
Inventories (12,508) 2,035
Prepaid expenses and other current assets 578 172
Other assets and other liabilities (2,854) (289)
Accounts payable 3,777 (1,623)
Accrued liabilities 3,378 4,647
Income taxes - (1,065)
------- -------
Net cash provided by operating activities 7,759 8,433
------- -------
Cash flows used in investing activities:
Property, plant and equipment additions (5,424) (3,824)
------- -------
Net cash used in investing activities (5,424) (3,824)
------- -------
Cash flows used in financing activities:
Principal payments of long-term debt - (53)
Exercise of stock options and related tax benefits 4,399 987
Decrease in receivable for stock options exercised 14 14
Acquisition of treasury stock (6,540) (2,903)
Dividends paid (594) (584)
------- -------
Net cash used in financing activities (2,721) (2,539)
------- -------
Effect of exchange rate changes on cash (2) -
------- -------
Net increase(decrease) in cash and cash equivalents (388) 2,070
Cash and cash equivalents at beginning of year 14,516 8,563
------- -------
Cash and cash equivalents at end of period $ 14,128 $ 10,633
------- -------
------- -------
</TABLE>
See accompanying notes to unaudited consolidated condensed financial statements.
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DEL LABORATORIES, INC. AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
SEPTEMBER 30, 1997 AND 1996
(UNAUDITED)
1. The consolidated financial statements have been prepared in
accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and
Rule 10-01 of Regulation S-X. Accordingly, they do not include all
of the information and footnotes required by generally accepted
accounting principles for complete financial statements. In the
opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation
have been included. The results of operations of any interim period
are not necessarily indicative of the results of operations to be
expected for the fiscal year. For further information, refer to the
consolidated financial statements and accompanying footnotes
included in the Company's annual report on Form 10-K for the year
ended December 31, 1996.
2. Classification of inventories at September 30, 1997 and December 31,
1996 were as follows (in thousands):
1997 1996
--------- ---------
Raw Materials $ 19,492 $ 15,346
Work In Process 7,797 3,862
Finished Goods 19,007 14,580
--------- ---------
$ 46,296 $ 33,788
--------- ---------
--------- ---------
3. Earnings per common share is computed under the "modified treasury
stock method" which assumes the exercise of all outstanding options
and warrants and the use of the proceeds thereof to acquire up to
20% of the outstanding common stock of the Company. Excess proceeds
not utilized for the purchase of such shares are assumed utilized,
first to reduce outstanding debt and then any remainder is assumed
invested in interest bearing securities with net earnings increased
for the hypothetical interest expense savings or interest income,
net of taxes.
Common stock equivalents of 815,878 and 921,997 have been included
in the calculation of primary earnings per common share at September
30, 1997 and 1996, respectively.
4. In June 1997, the Company purchased land and buildings in North
Carolina to be used as a warehouse and distribution center, which
will replace the Company's current leased facility in Huntington,
New York. The purchase price of the property was $5,500,000, of
which $275,000 was paid in cash at closing and $5,225,000 is being
financed through a non-interest bearing note issued to the seller of
the property. The Company recorded the note payable at its present
value using an interest rate of 7.3% which approximates the Company's
incremental borrowing rate. The repayment terms of the note include
$1,375,000 to be repaid over three years (1997, 1998 and 1999) and a
single lump sum payment of $3,850,000 on May 15, 2000. The issuance
of the note for the property represents a non-cash transaction.
5. In June 1997, the Company entered into an agreement to lease 44,000
square feet of office space in Uniondale, New York to be used for
executive offices. The term of the lease is seven years and seven
months with an expiration date of December 31, 2004. The future
minimum lease payments under this lease are $1,171,703 per year
payable monthly beginning in January, 1998 and continuing through
December 31, 2004.
- 6 -
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations
-------------------------
(1) Results of Operations
---------------------
Sales
-----
Net sales for the third quarter of 1997 were $68.9 million, 14.1% above
the $60.4 million of sales for the third quarter of 1996. Net sales for
the nine months ended September 30, 1997 were $198.2 million, 13.6% above
the $174.5 million of net sales for the nine months ended September 30,
1996.
Net Cosmetics sales were $54.4 million in the 1997 third quarter compared
to $47.3 million in the 1996 third quarter, a 15.0% increase. For the
1997 nine month period, net Cosmetics sales were $157.4 million versus
$134.1 million in the comparable 1996 period, a 17.4% increase.
Net Pharmaceutical sales in the 1997 third quarter were $14.5 million
compared to $13.1 million in the same quarter in 1996, a 10.7% increase.
For the 1997 nine month period, net sales increased 1% over the comparable
period in 1996.
The increases in net sales are primarily attributable to increased volumes.
Cost of Sales
-------------
Cost of sales for the third quarter of 1997, as a percentage of net
sales, decreased to 38.5%, as compared with 45.8 % in the corresponding
period of 1996. Cost of sales for the nine months ended September 30,
1997, as a percentage of net sales, was 38.9% compared with 42.8% in the
corresponding period of 1996.
In the third quarter of 1996 the Company disposed and revalued excess
fashion oriented color cosmetics and natural based beauty products
inventory, resulting in a charge to cost of sales representing 4.1% of
sales for the quarter and 1.4% of sales for the nine months. The 1997
quarterly and nine month periods included no such charge. Absent the
charge in 1996, cost of sales would have improved from 41.6% in the 1996
third quarter to 38.5% in the 1997 quarter and 41.3% in the 1996 nine
month period to 38.9% for the comparable period in 1997, primarily due to
product mix.
Selling and Administrative Expenses
-----------------------------------
Selling and administrative expenses increased by $7.8 million in the
third quarter of 1997 versus the third quarter of 1996 and also increased
as a percentage of net sales to 51.3% from 45.6%. For the nine months
ended September 30, 1997, selling and administrative expenses increased
by $16.4 million versus the comparable period in 1996 and also increased
as a percentage of net sales to 51.3% from 48.8%. The increases are
primarily attributable to increased advertising and promotional expenses
during the 1997 periods.
Selling and administrative expenses are subject to quarterly variability
due to the timing of advertising and other spending related to
promotional programs.
Net Interest Expense
--------------------
Interest expense increased from $.94 million in the 1996 third quarter to
$1.03 million in the 1997 third quarter and from $2.8 million during the
nine month period in 1996 to $3.0 million in 1997 due to imputed interest
(non cash expense) related to the Company's purchase of land and building
in North Carolina. Offsetting these increases were higher levels of interest
income in both the 1997 third quarter and nine month period.
Provision for Income Taxes
--------------------------
The provision for income taxes is based on the Company's expected
effective tax rate for the year, which is 40% in 1997. In 1996, the
Company's effective tax rate was estimated at 41%.
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<PAGE>
Net Earnings
------------
Net earnings for the third quarter of 1997 were $3.7 million, 42.7% above
the $2.6 million of net earnings reported for the third quarter of 1996. Net
earnings for the nine months ended September 30, 1997 were $10.2 million,
41.9% above the $7.2 million of net earnings reported for the nine months
ended September 30, 1996. The increases in net earnings were due to higher
net sales and improved cost of goods sold.
Legal Matters
-------------
In June 1997, the Company entered into a settlement agreement with
respect to a stockholders' derivative action against the members of the
Company's Board of Directors in which, among other things, the Company's
insurance carrier agreed to pay $400,000 to the Company on behalf of the
individual defendants, and the Company paid $150,000 in connection with
plaintiffs' attorneys fees. The stipulation of settlement expressly
acknowledges that the settlement does not constitute an admission by the
defendants of any liability or wrongdoing by them, but was entered into
by the defendants to avoid the burden and costs of further litigation.
New Accounting Pronouncements
-----------------------------
The Financial Accounting Standards Board issued Statement of Financial
Accounting Standard (SFAS) No. 128, "Earnings Per Share". This
pronouncement must be implemented for annual and interim periods that end
after December 15, 1997. SFAS No. 128 does not permit early application.
When implemented, SFAS No. 128 requires restatement of all prior period
earnings per share data. SFAS No. 128 calls for the calculation of basic
earnings per share, which is calculated using only weighted average
shares outstanding during the period and does not consider the assumed
exercise of shares utilizing the treasury stock method (see Note 3 to the
unaudited consolidated condensed financial statements). The Company
believes that the adoption of SFAS No. 128 will increase basic earnings per
share as compared with previously reported primary earnings per share. In
addition, SFAS No. 128 requires the disclosure of diluted earnings per
share. The Company is evaluating the requirements of calculating diluted
earnings per share but does not believe that the adoption of SFAS No. 128
will have a material effect on previously reported primary earnings per
share as compared with diluted earnings per share.
The Financial Accounting Standards Board issued Statement of Financial
Accounting Standard No. 131, "Disclosures about Statement of an
Enterprise and Related Information" (SFAS No. 131). SFAS No. 131
established standards to report information about operating segments and
related discussions about products and services, geographic areas and
major customers. SFAS No. 131 is effective for financial statements for
the reporting periods beginning after December 15, 1997. This statement
permits early application and requires restatement of all prior periods.
The Company is currently evaluating the requirements of SFAS No. 131 and
believes that the adoption of the statement will not have a material
impact on previously reported segment information.
(2) Liquidity and Capital Resources
-------------------------------
At September 30, 1997, the Company had cash and cash equivalents of
$14.1 million as compared to $10.6 million and $14.5 million at
September 30, 1996 and December 31, 1996, respectively.
Net cash provided by operating activities was $7.8 millon and $8.4 million
for the nine month period ended September 30, 1997 and 1996, respectively.
Net earnings increased by $3.0 million while net cash provided by operating
activities decreased by $.6 million primarily as a result of the Company's
increased investment in inventories.
Cash used for property, plant and equipment acquisitions was $5.4 million
and $3.8 million in the nine month period ended September 30, 1997 and 1996,
respectively. The increase of $1.6 million is principally attributable to
equipment at the Company's new warehouse and distribution center in Rocky
Point, North Carolina (as discussed in Note 4 to the unaudited consolidated
condensed financial statements). The purchase price of the property was
$5,500,000, of which $275,000 was paid in cash at closing and $5,225,000 is
being financed through a non-interest bearing note with the seller of the
property.
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<PAGE>
Net cash used in financing activities was $2.7 million and $2.5 million for
the nine months ended September 30,1997 and 1996 respectively. The increase
of $.2 million was due mainly to a $3.6 million increase in treasury stock
acquisitions in 1997, largely offset by a $3.4 million increase in stock
options exercised and the attendant tax benefit.
Estimated cash flow from operations and current working capital lines of
credit are expected to be adequate to fund the Company's anticipated
working capital requirements, fixed asset spending, dividend payments and
common share repurchases in the foreseeable future.
Forward-Looking Statements
--------------------------
This Quarterly Report on Form 10-Q includes "forward-looking statements"
within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934 (the "Exchange Act").
All statements other than statements of historical information provided
herein are forward-looking statements and may contain information about
financial results, economic conditions, trends and known uncertainties.
The forward-looking statements contained herein are subject to certain
risks and uncertainties that could cause actual results to differ
materially from those reflected in the forward-looking statements.
Factors that might cause such a difference include, but are not limited
to, trends in the general economy, the dependence on certain national
chain drug store and mass merchandiser relationships due to the
concentration of sales generated by such chains and to changes in
fashion oriented color cosmetics trends.
Readers are cautioned not to place undue reliance on these
forward-looking statements, which reflect management's analysis,
judgement, belief or expectation only as of the date hereof. The Company
undertakes no obligation to publicly revise these forward-looking
statements to reflect events or circumstances that arise after the date
hereof. In addition to the disclosure contained herein, readers should
carefully review any disclosure of risks and uncertainties contained in
other documents the Company files or has filed from time to time with the
Securities and Exchange Commission pursuant to the Exchange Act.
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
(a) Exhibit 10.1 Lease between Registrant and Coliseum Towers Associates
Exhibit 10.2 Purchase Money Promissory Note with Carver Boat
Corporation
Exhibit 27.1 Financial Data Schedule
(b) Reports on Form 8-K
-------------------
None
- 9 -
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
DEL LABORATORIES, INC.
----------------------
(Registrant)
Date: November 14, 1997 /S/ Dan K. Wassong
- -------------------------- ----------------------------------
Dan K.Wassong
Chairman, President and
Chief Executive Officer
Date: November 14, 1997 /S/ Charles H. Abdalian
- -------------------------- ----------------------------------
Charles H. Abdalian
Vice President,
Chief Financial Officer and
Principal Accounting Officer
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EXHIBIT 10.1
- --------------------------------------------------------------------------------
COLISEUM TOWERS ASSOCIATES,
LANDLORD
DEL LABORATORIES, INC.,
TENANT
--------------------
OFFICE LEASE
--------------------
PREMISES: EAB PLAZA, NEW YORK
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
ARTICLE I Fundamental Lease Provisions ..................................... 1
ARTICLE II Definitions ..................................................... 2
ARTICLE III Premises/Use ................................................... 3
ARTICLE IV Term of Lease/Completion and Occupancy .......................... 4
ARTICLE V Base Rent and Additional Rent .................................... 5
ARTICLE VI Real Estate Tax Escalation ...................................... 6
ARTICLE VII Electricity .................................................... 8
ARTICLE VIII Ground Lease Rental Escalation ................................ 12
ARTICLE IX Operating Expense Escalation .................................... 13
ARTICLE X Subordination, Attornment, Notice to Lessors and Mortgagees ...... 17
ARTICLE XI Condemnation .................................................... 18
ARTICLE XII Assignment and Subletting ...................................... 20
ARTICLE XIII Alterations ................................................... 24
ARTICLE XIV Access to Demised Premises ..................................... 25
ARTICLE XV Repairs ......................................................... 26
ARTICLE XVI Compliance with Laws ........................................... 27
ARTICLE XVII Bankruptcy .................................................... 28
ARTICLE XVIII Damage by Fire or Other Cause ................................ 29
ARTICLE XIX Insurance ...................................................... 30
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<PAGE>
ARTICLE XX Services and Equipment .......................................... 32
ARTICLE XXI Rules and Regulations .......................................... 36
ARTICLE XXII Liability of Landlord ......................................... 36
ARTICLE XXIII Indemnification of Landlord .................................. 37
ARTICLE XXIV Parking and Common Area Use ................................... 37
ARTICLE XXV Right to Perform ............................................... 38
ARTICLE XXVI Defaults ...................................................... 38
ARTICLE XXVII Covenant of Quiet Enjoyment .................................. 41
ARTICLE XXVIII Brokerage ................................................... 41
ARTICLE XXIX Estoppel Certificate .......................................... 41
ARTICLE XXX Tenant Compliance with Ground Lease ............................ 42
ARTICLE XXXI Surrender of Premises ......................................... 42
ARTICLE XXXII Partial Invalidity ........................................... 43
ARTICLE XXXIII No Waivers by Landlord ...................................... 44
ARTICLE XXXIV Waivers by Tenant ............................................ 44
ARTICLE XXXV Exculpation of Landlord ....................................... 45
ARTICLE XXXVI Inability to Perform ......................................... 45
ARTICLE XXXVII Effect of Conveyance by Landlord ............................ 46
ARTICLE XXXVIII Notices .................................................... 46
ARTICLE XXXIX Successors and Assigns ....................................... 47
ARTICLE XL Entire Agreement; No Modification ............................... 47
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<PAGE>
ARTICLE XLI Arbitration .................................................... 47
ARTICLE XLII Miscellaneous ................................................. 48
ARTICLE XLIII Captions/Recording ........................................... 48
ARTICLE XLIV Intentionally Omitted ......................................... 49
ARTICLE XLV First Right to Lease ........................................... 49
ARTICLE XLVI Landlord's Contribution for Tenant's Work ..................... 50
ARTICLE XLVII Renewal Option/Rent Upon Renewal ............................. 51
EXHIBITS PAGE NO. OF LEASE
- -------- -----------------
EXHIBIT A Diagram of Space ................................................. 3
EXHIBIT B Intentionally Omitted .......................................... N.A.
EXHIBIT C Building Standard Cleaning
and Janitorial Services .................................................. 33
EXHIBIT D Holidays ......................................................... 33
EXHIBIT E Rules and Regulations ............................................ 35
EXHIBIT F Parking Diagram .................................................. 37
EXHIBIT G First Right to Lease Diagram ..................................... 49
-iii-
<PAGE>
THIS OFFICE LEASE (the "Lease") is made as of this first day of
June, 1997, between COLISEUM TOWERS ASSOCIATES, a New York limited
partnership ("Landlord") and DEL LABORATORIES, INC., a Delaware corporation
("Tenant"), Landlord and Tenant having the following notice addresses on the
date of this Lease.
Landlord: Coliseum Towers Associates
110 EAB Plaza
Uniondale, NY 11556
Attention: Financial Director
Tenant: Del Laboratories, Inc.
565 Broad Hollow Road
Farmingdale, New York 11735
ARTICLE I
Fundamental Lease Provisions
Certain Fundamental Lease Provisions are presented in this Section 1 and
represent the agreement of the parties hereto, subject to the further definition
and elaboration in the respective referenced Sections and elsewhere in the
Lease.
A. Premises: EAB Plaza
Uniondale, NY 11556 ....[See Article III]
B. Floor(s) or
Portion(s) thereof
Leased: The entire 8th floor and
a portion of the 7th floor located in
West Tower ....[See Article III]
C. Square Footage of Premises (Rentable Area):
31,405 rentable square feet on 8th floor;
12,397 rentable square feet on 7th floor
aggregating 43,802 rentable square feet ....[See Article III]
D. Use: Executive and general offices for
Tenant
and for no other purpose ....[See Article III]
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<PAGE>
E. Term:(1) Commencement Date: June 1, 1997
(2) Expiration Date: December 31, 2004 ....[See Article IV]
F. Base Rent: $26.75 per rentable
square foot ....[See Article V]
G. Security Deposit: $0 ....[See Article XLIV]
H. Tenant's Pro-Rata
Share: 4.04815% ....[See Article II]
I. Rent Commencement
Date: January 1, 1998 ....[See Article V]
References appearing in this Article I are to designate some of the other
places in this Lease where additional provisions applicable to the particular
Fundamental Lease Provisions appear. Each reference in this Lease to any of the
Fundamental Lease Provisions shall be construed to incorporate all of the terms
provided for under such provisions, and such provisions shall be read in
conjunction with all other provisions of this Lease applicable thereto. If there
is any conflict between any of the Fundamental Lease Provisions set forth in
this Section and any other provisions of this Lease, the latter shall control.
The listing in this Article I of monetary charges payable by Tenant shall not be
construed to be an exhaustive list of all monetary amounts payable by Tenant
under this Lease.
ARTICLE II
Definitions
The terms defined in this Article shall, for all purposes of this Lease,
and all agreements supplemental hereto, have the meanings specified herein
unless the context requires otherwise.
2.01. "Affiliate" shall mean any person which controls or is controlled by
Tenant or is controlled by the same persons which shall then control Tenant and
any persons which are together with Tenant in a relationship of joint venture,
partnership or other form of business association; the term "control" means,
with respect to a corporation, the ownership of stock possessing the right to
exercise at least 51% of the total combined, voting power of all classes of the
controlled corporation, issued, outstanding and entitled to vote for the
election of directors, whether such ownership be direct ownership or indirect
ownership through control of another corporation or corporations.
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<PAGE>
2.02. "Common Areas" shall mean the lobbies, entrances, stairs, elevators,
off-street loading berths, skating rink, wintergarden, covered walkway, atrium
and other public portions and common areas or building service areas of EAB
Plaza and the indoor and outdoor parking areas on the Land.
2.03. "Ground Lease" shall mean the lease dated as of April 28, 1981
between the County of Nassau, as landlord, and Coliseum Plaza Associates, as
tenant (a memorandum of which lease was recorded in the Office of the Clerk of
the County of Nassau on January 22, 1983) and shall include any now existing or
hereafter created amendments or modifications thereof and assignments thereof.
In the event said Ground Lease is terminated and a new lease is granted by the
County of Nassau to the fee owner of the Land as of the date hereof, or its
respective successors and assigns, the term "Ground Lease" shall mean any such
new lease.
2.04. "Lease Year" shall mean any twelve (12) month consecutive period
commencing on the Commencement Date and any anniversary thereof.
2.05. "Tenant's Pro Rata Share" shall be 4.04815%.
2.06. "Term of this Lease" shall mean that period between the Commencement
Date and the Expiration Date, or such earlier date(s) on which such term may
expire or be cancelled or terminated pursuant to any of the conditions or
covenants of this Lease or pursuant to law.
2.07. The "Rentable Area" shall be 43,802 square feet.
ARTICLE III
Premises/Use
3.01 Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the space substantially as shown hatched on the diagram attached hereto
and made a part hereof as Exhibit "A" and located on the 7th and 8th floors of
the West Tower of the building constituting a portion of the improvements
located on a plot of land (hereinafter the "Land") as more particularly
described in the Ground Lease, located in the Town of Hempstead, County of
Nassau and State of New York, being known as EAB Plaza (hereinafter "EAB
Plaza"), together with all fixtures, equipment, improvements, installations and
appurtenances which at the commencement of or during the term of this Lease are
attached thereto (except items not deemed to be included therein and removable
by tenant as provided in Article XIII hereof), which space, fixtures, equipment,
improvements, installations and appurtenances are hereinafter sometimes called
the "Demised Premises".
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3.02. Subject to the provisions of Article XII hereof, Tenant shall use
and occupy the Demised Premises for executive and general offices of Tenant
(hereinafter the "Permitted Use").
3.03. Tenant shall use the Demised Premises only for the Permitted Use and
for no other purpose. Tenant shall not permit the Demised Premises to be used or
operated in violation of any governmental requirements or requirements of the
New York Board of Fire Underwriters.
3.04. Neither Tenant nor any occupant of the Demised Premises shall use
the words "DeMatteis", "European American Bank" or "EAB" for any purpose
whatsoever, except that the foregoing shall not prevent the use, in a
conventional manner and without emphasis or display, of the words "EAB Plaza" as
part of Tenant's business address.
3.05 The parties agree that the Rentable Area of the Demised Premises
shall not be remeasured during the Term of this Lease.
ARTICLE IV
Term of Lease/Completion and Occupancy
4.01. This Lease shall be for a term of seven (7) years and seven (7)
months (or until such term shall sooner cease and expire as hereinafter
provided) to commence on the 1st day of June nineteen hundred and ninety-seven
(hereinafter, the "Commencement Date") and to end at noon on the 31st day of
December, two thousand and four (hereinafter, the "Expiration Date"), said dates
being subject to the provisions of this Article IV of the Lease, both dates
inclusive.
4.02. Tenant has inspected the Demised Premises and the Building and
agrees to take same "as is" and acknowledges that the taking of possession of
the Demised Premises by Tenant shall be conclusive evidence that the Demised
Premises and the Building were in good and satisfactory condition at the time
such possession was so taken.
4.03. Landlord shall have no obligation to alter, improve, decorate or
otherwise prepare the Demised Premises for Tenant's occupancy. Landlord
represents that the Demised Premises are vacant and ready for the commencement
of Tenant's work to prepare the Demised Premises for occupancy, however,
Landlord shall be under no penalty or liability to Tenant whatsoever by reason
of any delay in delivering possession thereof. If, for any reason whatsoever,
the Demised Premises are not ready by the Commencement Date, Landlord shall be
given whatever additional time as may be necessary to make the Demised Premises
ready, in
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which event the Commencement Date shall be deemed postponed until ten (10)
business days after Landlord has notified Tenant in writing that the Demised
Premises are ready, in such event, the Expiration Date shall be similarly
extended; provided, however, that there shall be no such postponement of the
Commencement Date for any delay which shall be due to any act or omission of
Tenant, its agents or employees. It is expressly agreed that the Rent
Commencement Date (as hereinafter defined) shall not be postponed or delayed by
reason of the performance of Tenant's work to prepare the Demised Premises for
occupancy.
4.04. Tenant shall not be permitted to enter into occupancy of the Demised
Premises prior to the Commencement Date without Landlord's written consent and
then only upon such terms as Landlord shall require.
ARTICLE V
Base Rent and Additional Rent
5.01. During the term hereof the Tenant agrees to pay in equal monthly
installments in advance on the first day of each calendar month during the Term
of this Lease at the Office of the Landlord or such other place as Landlord may
designate an annual fixed rent (hereinafter, collectively, the "Base Rent") in
the amount of One Million One Hundred Seventy One Thousand Seven Hundred and
Three and 50/100 ($1,171,703.50) Dollars (calculated at the rate of $26.75 per
rentable square foot) plus annual electric charge (subject to escalation under
Article VII) of Ninety Eight Thousand Five Hundred Fifty Four and 50/100
($98,554.50) Dollars, aggregating annual Base Rent of One Million Two Hundred
Seventy Thousand Two Hundred Fifty Eight and 00/100 ($1,270,258.00) Dollars,
and such other sums of money as shall become due and payable by Tenant hereunder
(hereinafter, "Additional Rent") including without limitation those items
specified in Articles VI, VII, VIII and IX of this Lease, all of which sums
shall be payable as hereinafter provided to Landlord, subject, however, to
increase, as expressly provided in this Lease. In the event any installment of
Base Rent or Additional Rent required pursuant to the provisions of this Lease
to be paid by Tenant is not paid when due, such installment shall bear interest
at the rate of twelve (12%) per centum per annum from the date said installment
was due and payable, said interest to be deemed Additional Rent. In addition,
Tenant shall pay upon demand by Landlord any reasonable attorney's fees incurred
by Landlord in connection with the imposition, collection or payment of said
interest, said reasonable attorney's fees to be deemed Additional Rent.
5.02. Provided Tenant shall not be in default under this Lease, Tenant
shall be relieved of its obligation to pay Base Rent up to and including
December 31, 1997 and the
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obligation to pay Base Rent shall commence on January 1, 1998 (the "Rent
Commencement Date").
ARTICLE VI
Real Estate Tax Escalation
6.01. Tenant shall pay to Landlord as Additional Rent real estate tax
escalations pursuant to the further provisions of this Article VI.
6.02. For the purposes of this Article, the term "Taxes" shall include the
sum of all real estate taxes and assessments, special assessments, water and
sewer rents and each and every installment thereof which shall or may during the
Term of this Lease be levied, assessed, imposed, become due and payable, or
liens upon or arising in connection with the use, occupancy or possession of or
grow out of, or for the Land and EAB Plaza or any part thereof. If at any time
during the Term of this lease the methods of taxation prevailing at the
execution of this Lease shall be altered so that in lieu of or as a substitute
for the whole or any part of the taxes, assessments, levies, impositions or
charges now levied, assessed or imposed on real estate or the improvements
thereon there shall be levied, assessed or imposed (i) a tax, assessment, levy,
imposition or charge wholly or partially payable as a capital levy or otherwise
on the rents received therefrom, or (ii) a tax, assessment, levy, imposition or
charge measured by or based in whole or in part upon the Demised Premises and
imposed upon Landlord, or (iii) a license fee or charge measured by the rents
payable by Tenant to Landlord, or (iv) a license fee or charge measured by the
rent receivable by Landlord for EAB Plaza or any portion thereof and/or the Land
or any other building or other improvements constructed on the Land, or (v) a
tax, license fee or charge imposed on Landlord which is otherwise measured by or
based in whole or in part, upon EAB Plaza, or any portion thereof and/or the
Land or any other building or other improvements constructed on the Land, or
(vi) any other tax or levy imposed in lieu of or as a substitute for Taxes which
are levied, assessed or imposed as of the date of this Lease, then in any such
event, the same shall be included in the computation of Taxes hereunder. A tax
bill or copy thereof shall be conclusive evidence of the amount of Taxes or
installments thereof.
6.03. In the event that subsequent to the Commencement Date Tenant's Pro
Rata Share of the Taxes shall exceed a sum equal to the product of (x) the Taxes
incurred by Landlord for (i) calendar year 1998 with respect to General Taxes
(Town and County) and (ii) the fiscal year 1997/98 with respect to the School
Taxes (the sum of the General Taxes and the School Taxes is hereinafter
collectively the "Base Tax Amount") multiplied by (y) the Tenant's Pro Rata
Share, Tenant shall pay such excess to Landlord as Additional Rent in the manner
provided in this Article.
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6.04. For each Lease Year during the Term of this Lease the method of
computing any Additional Rent resulting from changes in Taxes shall be as set
forth in Section 6.03 hereof, provided, however that the Base Tax Amount may be
reduced as a result of adjustments to General Taxes and School Taxes, as a
result of tax certiorari or other comparable proceedings.
6.05. Tenant shall, in addition to the monthly installments of Base Rent,
deposit with Landlord on the first day of each month, a sum of 1/12 of the
estimated annual amount of Tenant's Pro Rata Share of the Taxes payable, which
sums to the extent received, shall be held by Landlord without interest, to be
applied by Landlord to the payment of Taxes as the same become due and payable.
If the Taxes when paid result in an adjustment to the amount of Tenant's Pro
Rata Share of the Taxes payable, (i) any excess shall be retained by Landlord
and applied in reduction of the next subsequent monthly installments of Base
Rent; and (ii) any deficiency shall be paid by Tenant to Landlord on demand. A
tax bill or copy thereof submitted by Landlord to Tenant shall be conclusive
evidence of the amount of Taxes. Landlord will provide Tenant with proof of
payment of Taxes within a reasonable time after Tenant's request.
6.06. Only Landlord shall be eligible to institute proceedings to reduce
the assessed valuation of the Land or EAB Plaza. In the event the Landlord shall
obtain a tax refund as a result of any such reduction proceedings, then,
provided Tenant is not then in default under any material terms of this Lease
and after all applicable grace periods have expired and after the final
conclusion of all appeals or other remedies, Tenant shall be entitled to
Tenant's Pro Rata Share of the net refund obtained to the extent Tenant has paid
any Additional Rent therefor. As used herein, the term "net refund" means the
refund plus interest, if any, thereon, paid by the governmental authority less
appraisal, engineering, expert testimony, attorney, printing and filing fees and
all other Landlord reasonable out of pocket costs and expenses of the
proceeding. Tenant shall pay to Landlord Tenant's Pro Rata Share of all
appraisal, engineering, expert testimony, attorney, printing and filing fees and
all other reasonable costs and expenses of the proceeding incurred by Landlord
in the event said proceeding does not result in any net refund.
6.07. Landlord's failure during the Term of this Lease to submit tax bills
or copies thereof to Tenant, or Landlord's failure to make demand under this
Article or under any other provision of this Lease shall not in any way be
deemed a waiver of, or cause Landlord to forfeit or surrender its rights to
collect any items of Additional Rent which may have become due pursuant to this
Article during the Term of this Lease. Tenant's liability for the Additional
Rent due under this Article shall survive the expiration or sooner termination
of this Lease.
6.08. In no event shall any adjustment of Tenant's Pro Rata Share of the
Taxes payable hereunder result in a decrease in Base Rent or Additional Rent
payable pursuant to any other provision of this Lease, it being agreed that the
payment of Additional Rent under this Article is an obligation supplemental and
in addition to Tenant's obligation to pay Base Rent.
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ARTICLE VII
Electricity
7.01. Tenant shall make no alterations or additions to the electrical
distribution system, electrical equipment or appliances without the prior
written consent of Landlord in each instance. Tenant covenants and agrees that
at all times its use of electric current shall not exceed the capacity of
existing feeders to the Building of the risers or wiring installation therein
and Tenant shall not use any lighting fixtures, business machines or other
electrical equipment or systems which, in Landlord's sole judgment, will
overload such installations or interfere with the use thereof by other tenants,
licensees or occupants of EAB Plaza.
7.02. Landlord shall furnish at Tenant's expense electric current to
Tenant in the Demised Premises in accordance with EAB Plaza's electric design of
two (2) watts per square foot of connected capacity for lighting and one (1)
watt per square foot of connected capacity for power. Tenant shall be
responsible for the installation, cost, operation and maintenance of such
additional fixtures or systems and business machines as Tenant shall deem
necessary and which Landlord shall permit in writing in accordance with the
provisions of this Lease to accommodate any total lighting and power electrical
load in the Demised Premises occasioned by Tenant's use thereof in excess of
three (3) watts per square foot. Within thirty (30) days after the Commencement
Date, Tenant shall furnish Landlord with (i) a schedule (to be updated and
amended as applicable) listing all lighting fixtures, business machines and
other electrical equipment or systems including make and model number to be used
in the Demised Premises and requiring the use of electric current, and (ii) a
schedule (to be updated and amended as applicable) of the hours of anticipated
operation of such lighting fixtures, business machines and other electrical
equipment or systems.
7.03. Effective on the date Tenant shall first have actually occupied the
Demised Premises for the daily conduct of its business, but no later than the
Commencement Date, Tenant shall pay to Landlord for Tenant's consumption of
electrical power in the Demised Premises as Additional Rent an amount determined
by multiplying the Tenant's Rentable Area by $2.25 per square foot (hereinafter
called the "Demised Premises Electricity Factor") (subject to adjustment as
hereinafter specified). The Demised Premises Electricity Factor shall be subject
to adjustment pursuant to the provisions of Sections 7.04, 7.05 and 7.06. The
Additional Rent provided for in this Section shall be payable in equal monthly
installments in advance on the first day of each and every calendar month. If
Landlord shall commence supplying such electric current on any day other than
the first day of a calendar month, such Additional Rent payable for such
calendar month shall be prorated.
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7.04 The Demised Premises Electricity Factor shall be subject to increase
by a percentage equal to the percentage increase in cost to the Landlord of
supplying such electricity, as a result of the occurrence of any of the
following events:
(a) An increase in the public utility rate for the supply of electrical
energy of the Building above the applicable average public utility rate in
effect as of the Commencement Date. As used in this Article VII the term "public
utility rate" shall include any fees, tariffs, rates or surcharges foreseen or
unforeseen, now or at any time in the future imposed which Landlord is required
to pay in connection with obtaining electrical energy for EAB Plaza including
without limitation, fuel adjustment increases and transmission fees.
(b) An increase in any sales, excise or similar taxes above amounts in
effect as of the Commencement Date or the addition of or increase in any other
similar charges levied for the purchase of electric energy above amounts in
effect as of the Commencement Date; and
(c) An increase in Tenant's connected capacity in the Demised Premises for
additional lighting fixtures, business machines and other electrical equipment
or systems in accordance with Section 7.02.
Upon any adjustment of the Demised Premises Electricity Factor pursuant to
the provisions of Section 7.04, Landlord shall furnish to Tenant a statement
setting forth the Additional Rent payable hereunder. In no event, however, shall
the Demised Premises Electricity Factor be less than $2.25 per rentable square
foot.
7.05. Each adjustment in Additional Rent payable pursuant to this Article
shall be effective retroactively as of:
(a) The effective day of any of the increases set forth in subsections (a)
and (b) of Section 7.04 hereof; and
(b) With respect to any adjustment effected pursuant to the provisions of
subsection (c) of Section 7.04 hereof, the date of the statement rendered by
Landlord to Tenant pursuant to the provisions of Section 7.04. Tenant shall pay
to Landlord the first installment of Additional Rent due as a result of any
adjustments pursuant to Section 7.04 within thirty (30) days after Landlord
shall have submitted to Tenant the statement set forth therein. Thereafter,
Tenant's payments of Additional Rent due pursuant to this Section shall be in
accordance with Section 7.03.
7.06. The parties agree that Landlord shall have the right to engage a
reputable, independent electrical consultant selected by Landlord ("Landlord's
Electrical Consultant")
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to survey the Demised Premises to determine whether the Demised Premises
Electricity Factor set forth in Section 7.03 and 7.04(c) is accurate. Landlord's
Electrical Consultant shall have the right, upon reasonable notice to Tenant, to
enter the Demised Premises to conduct the electric survey. If Landlord's
Electrical Consultant determines that an increase in the Demised Premises
Electricity Factor is called for under the provisions of this Article VII, then
Landlord shall furnish Tenant with a statement setting forth the Additional Rent
payable hereunder. Such Additional Rent shall be payable in accordance with
Sections 7.03, 7.04 and 7.05. The cost of hiring Landlord's Electrical
Consultant shall be borne by Landlord; provided however, if an adjustment of the
Demised Premises Electricity Factor is the result solely of Tenant's alterations
to the schedule referred to in Section 7.02 or changes in electrical
consumption, Tenant shall bear the cost thereof.
7.07. Provided that Tenant does not avail itself of its rights
described in the immediately succeeding sentence, the determination of the
Landlord's Electrical Consultant pursuant to Section 7.06 hereof shall be
conclusive and binding upon Tenant. However, with respect to the Demised
Premises Electricity Factor, Tenant, not later than thirty (30) days
following the date upon which the statement setting forth any increase in
Additional Rent is delivered to Tenant, shall advise Landlord in writing if
Tenant is of the reasonable opinion that such determination is erroneous
failing which Tenant shall be deemed to have waived any objection to such
determination. In such event, Tenant shall, at its own expense, within ninety
(90) days after Tenant's receipt of the statement setting forth such
increase obtain from a reputable, independent electrical consultant
("Tenant's Electrical Consultant") its own survey of the Demised Premises
Electricity Factor. Tenant's Electrical Consultant and Landlord's Electrical
Consultant shall then seek to agree on a final determination of such change
in the Demised Premises Electricity Factor. If they cannot agree, they shall
choose a third reputable electrical consultant (the "Independent Electrical
Consultant") the cost of which shall be shared equally by Landlord and
Tenant, to make a similar survey. The determination of the Demised Premises
Electricity Factor by the Independent Electrical Consultant shall be binding
on both parties. If the consultants cannot agree on the Independent
Electrical Consultant, the choice of the Independent Electrical Consultant
shall be referred to arbitration pursuant to the provisions of Article XLI of
this Lease. Pending resolution of any dispute with respect to the amount of
the Demised Premises Electricity Factor, Tenant shall pay to the Landlord the
amount of Additional Rent based on the Demised Premises Electricity Factor
determined by Landlord's Electrical Consultant. Thereafter, Landlord and
Tenant shall make adjustment for any deficiency owed by the Tenant or any
overage paid by Tenant pursuant to the original determination of Landlord's
Electrical Consultant provided however, that Landlord shall not be
responsible for refunding any overage paid by Tenant for any period in excess
of twelve (12) months.
7.08. Landlord, upon not less than sixty (60) days' prior written notice
to Tenant, may discontinue the furnishing of electric current to the Demised
Premises if Landlord's discontinuance is required by any laws or requirements of
public authorities or by any utility company supplying
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or available to supply electric current or if Landlord, by reason of any law or
requirement of public authority, is not permitted to recover the costs to it of
supplying electric current to Tenant as set forth in this Article (Landlord,
however, shall not be permitted to discontinue the furnishing of electric
current under this Article if the discontinuance of electric current by the
applicable utility company is due to Landlord's non payment of appropriate
utility charges). In such case, Tenant shall pay for the supplying of such
electric current from said public utility and Landlord shall permit its wires,
risers, conduits, feeders and switchboards, to the extent available, suitable
and safely capable, to be used for the purpose of supplying such electric
current. Tenant at its sole cost and expense and subject to Section 7.01, shall
provide any equipment and installations (including metering equipment) necessary
to permit purchase by Tenant of electric current directly from the public
utility supplying EAB Plaza.
7.09. In the event that Landlord shall discontinue the furnishing of
electric current pursuant to Section 7.08 hereof, Tenant's obligation to pay
Landlord Additional Rent pursuant to this Article shall terminate with respect
to the period from and after the date Landlord discontinued the furnishing of
electric current to the Demised Premises.
7.10. At Landlord's option, Tenant shall purchase from Landlord at a
reasonable, competitive price and Landlord shall install, at Tenant's expense,
all lamps, light bulbs and ballasts used in the Demised Premises.
7.11. Tenant shall advise Landlord with respect to any material change in
the periods of use of lighting fixtures, business machines and other electrical
equipment within the Demised Premises. In addition, upon Landlord's request, the
list referred to in Section 7.02 shall be updated by Tenant.
7.12. Landlord shall not be liable to Tenant for any loss or damage or
expense which Tenant may sustain or incur by reason of any failure, inadequacy
or defect in the character, quantity or supply of electric current furnished to
the Demised Premises except for actual damage suffered by Tenant by reason of
any such failure, inadequacy or defect caused by the wrongful act, wrongful
failure to act or the gross negligence of Landlord.
7.13. Landlord, at its cost and expense, and, where necessary, upon the
prior approval of all appropriate regulatory authorities or public utilities,
shall have the option from time to time to take such steps as are necessary (1)
to have that portion of Tenant's electrical consumption as may be directly
metered instead to be either calculated and paid on a rent inclusion basis, or
to be check metered, or (2) to have that portion of Tenant's electrical
consumption as may be calculated and paid on a rent inclusion basis instead to
be directly metered or to be check metered, or (3) to have that portion of
Tenant's electrical consumption as may be check metered instead to be either
directly metered or calculated and paid on a rent inclusion basis.
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7.14 Tenant, at its cost and expense, upon the prior approval of all
appropriate regulatory authorities or public utilities, shall have the option to
have Tenant's electrical consumption directly metered, in which event Tenant
shall not be responsible for the payment of the Demised Premises Electricity
Factor.
ARTICLE VIII
Ground Lease Rental Escalation
8.01. Included in the Base Rent is the Tenant's Pro Rata Share of the
present rent being paid by Landlord under the Ground Lease (hereinafter, the
"Land Rent").
8.02. As the Land Rent increases pursuant to the terms of the Ground
Lease, Tenant shall pay Tenant's Pro Rata Share of such increase as Additional
Rent in the manner set forth in Section 8.03 hereof.
8.03. On the first day of the first month (hereinafter, the "Subsequent
Month") subsequent to the date Landlord shall have delivered to Tenant a
statement (hereinafter, the "Land Rent Statement") detailing the computation of
an effective date of any increase in the Land Rent, but in no event sooner than
fifteen (15) days from the receipt of such notice, Tenant shall pay as
Additional Rent to Landlord a sum equal to one-twelfth (1/12) of Tenant's Pro
Rata Share of the increase in Land Rent payable by Landlord under the Ground
Lease as specified in the Land Rent Statement multiplied by the number of months
which shall have elapsed between the effective date of the increase in the Land
Rent and the date of Landlord's notice to Tenant of said sum. In addition,
commencing on the first day of the next subsequent month and continuing monthly
thereafter until a new Land Rent Statement shall have been delivered by Landlord
to Tenant, Tenant shall pay as Additional Rent a sum equal to one-twelfth (1/12)
of Tenant's Pro Rata Share of the increase as set forth in said Land Rent
Statement. Tenant's liability for the Additional Rent due under this Article
shall survive the expiration or sooner termination of this Lease.
8.04. It is Landlord's position that the Ground Lease provides for rent
presently to be paid in the amount of $.5048 per rentable square foot per annum
to be increased to $.5889 on May 1, 1999 and to $.6730 on May 1, 2004. Tenant
acknowledges Landlord's advice that the lessor under the Ground Lease asserts
that the dates of rent increases under the Ground Lease are earlier than the
dates set forth above. In the event it is adjudicated or agreed that the dates
of rent increases under the Ground Lease are earlier than those asserted by
Landlord, Tenant shall be bound thereby.
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8.05. Landlord represents that except as may be set forth in Section
8.04., it has received no notice of default under the Ground Lease.
ARTICLE IX
Operating Expense Escalation
9.01. For purposes of this Lease:
(1) "Operating Expenses" shall mean all costs and expenses incurred
by Landlord for the operation, managing and maintenance of the Land, Common
Areas and EAB Plaza (collectively, "Landlord's Property") as a Class A office
building in the metropolitan area of New York, including all costs and expenses
incurred as a result of Landlord's compliance with any of its obligations
hereunder, and shall include, without limitation:
(a) Gross salaries and wages, medical, surgical and general
welfare benefits (such as group life, medical and disability insurance) and
pension payments, fringe benefits (such as vacation, holiday and other
allowances), payroll taxes, workmen's compensation, union benefits paid by
employer, unemployment insurance, social security and other taxes of or with
respect to employees of Landlord working full time at EAB Plaza and independent
contractors engaged in maintenance, repair and/or operation;
(b) Payments made to Landlord's employees and to independent
contractors for maintenance and/or operation, including by way of illustration
but not limitation, maintenance and/or operation with regard to elevators, the
plumbing, heating, electrical, ventilating and air conditioning systems of
Landlord's Property, and payments for all cleaning, security, snow removal and
gardening services;
(c) The cost of supplying and cleaning employees' uniforms and
work clothes;
(d) The cost of all charges for gas, steam, heat, ventilation,
electricity, air conditioning, water, sewer rents and refuse and rubbish
removal, and any taxes on any of the same;
(e) The cost of all rent, casualty, liability, property
damage, indemnification, plate glass, multi-risk and other insurance covering
Landlord and/or all or any portion of Landlord's Property;
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(f) The cost of all supplies (in connection with cleaning and
otherwise), tools, materials and equipment;
(g) The cost of repairs, alterations, licenses and permits and
renewals thereof, improvements and replacements made by Landlord, at its expense
(except for improvements for Tenant or other tenants);
(h) Customary management fees;
(i) Any taxes not actually billed to Tenant pursuant to
Article XV hereof;
(j) Accounting expenses for all statements with respect to
Landlord's Property, including the "Statements" hereinbelow required under this
Article, and reasonable attorneys' fees and fees paid to other professionals for
services rendered in connection with Landlord's Property, including
disbursements attendant to such expenses and fees;
(k) Dues and fees for trade and industry associations and
costs of their related activities, all relating to Landlord's Property;
(l) Administrative costs for bookkeeping, telephone and other
office expenses of Landlord; and
Operating Expenses shall exclude the following:
(i) depreciation and amortization of capital expenditures,
interest on and amortization of debt, and financing or refinancing costs;
(ii) the cost of tenant improvements, or any other work or
services performed for any tenants of the Building (including Tenant);
(iii) brokerage commissions, and advertising and promotional
expenses;
(iv) salaries and benefits of executives or employees of the
Landlord or the Landlord's affiliates who do not devote 100% of their working
time to the operation of the Building;
(v) the costs of repair, replacement, maintenance or operation
of the Building to the extent that the Landlord is reimbursed therefor through
insurance of condemnation awards or payments or otherwise;
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(vi) the cost of capital improvements other than those which
are (x) occasioned by the necessity to comply with laws, (y) reasonably intended
to reduce Operating Expenses by greater than five (5%) percent, or (z) are in
the nature of or are in lieu of repair;
(vii) fines or penalties payable by the Landlord with respect
to failure to comply with laws, statutes, ordinances or municipal regulations;
(viii) costs of curing violations, or of complying with
statutes, ordinances, or municipal regulations or other requirements of public
authorities existing as of the Term Commencement Date;
(ix) payments to the Landlord or the Landlord's affiliates for
goods or services, to the extent same exceed "market" pricing for such goods
and services, and that portion of Operating Expenses which is allocable to the
Landlord's or its affiliates' other properties;
(x) costs arising from Landlord's charitable or political
contributions; and
(xi) the cost of electric power to the Landlord's Property.
(2) "Base Operating Year" shall mean the calendar year 1998;
(3) "Base Year Expenses" shall mean the Operating Expenses incurred
by Landlord during the Base Operating Year;
(4) "Subsequent Year" shall mean each calendar year during the Term
of the Lease subsequent to the Base Operating Year;
(5) "Subsequent Year Expenses" shall mean the Operating Expenses
incurred by Landlord during a Subsequent Year.
9.02. If any Subsequent Year Expenses shall exceed Base Year Expenses,
Tenant shall pay to Landlord as additional rent Tenant's Pro-Rata Share of such
expenses.
9.03. When available during the second Subsequent Year but no later than
150 days after year end, Landlord shall render to Tenant a statement
("Statement") of the Base Year Expenses as well as a Statement of the Subsequent
Year Expenses for the first Subsequent Year and a computation of the amount
payable by Tenant pursuant to Section 9.02 ("Landlord's Computation").
Thereafter, when available in each Subsequent Year, Landlord shall render to
Tenant a Statement of Subsequent Year Expenses for the immediately preceding
Subsequent Year
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together with Landlord's Computation. Notwithstanding anything to the contrary
aforesaid, however, during the last twelve (12) months of the Term of this
Lease, Landlord shall render to Tenant an estimated bill for the amount of
Additional Rent which would be due pursuant to this Article IX for the period
commencing on the immediately preceding January 1 and ending on the Expiration
Date.
9.04. Within twenty(20) days after the rendering of any Subsequent Year
Statement and Landlord's Computation, Tenant shall pay to Landlord the amount of
Additional Rent computed pursuant to subdivision (B) hereof. Within twenty(20)
days after the rendering of the estimated bill hereinabove referred to, Tenant
shall pay to Landlord as Additional Rent the amount so billed, subject to
adjustment between the parties for said period (in favor of Landlord or Tenant,
as the case may be) within twenty(20) days after Landlord's rendering to Tenant
of a final Statement and Landlord's Computation following the Expiration Date.
Any amount payable by Tenant pursuant to this Article IX shall be adjusted in
proportion to the number of days in any partial Subsequent Year in which the
Commencement Date and/or (if Tenant shall not be in default under this Lease)
the Expiration Date shall occur.
9.05. If in any Subsequent Year Landlord shall eliminate in full the
payment of any item of costs or expenses as a result of the installation of
labor-saving devices or by any other means, then, in computing the Additional
Rent payable hereunder for such and any further Subsequent Year, the
corresponding item(s) of such costs or expenses shall be deducted from the Base
Year Expenses.
9.06. Any Statement rendered to Tenant shall consist of data prepared by
Landlord and shall constitute a final determination between Landlord and Tenant
as to Operating Expenses for the period represented thereby provided each such
Statement is prepared and audited by an accounting firm of no fewer than fifty
professionals and experienced in the accounting of commercial real estate
properties (the "Accounting Firm"). At its option from time to time, Landlord's
accounting may be on a cash or an accrual basis.
9.07. Any delay or failure of Landlord in rendering any Statement,
Landlord's Computation or bill as hereinabove provided shall not prejudice
Landlord's right to thereafter render such Statement, Landlord's Computation or
bill, or any others, nor constitute a waiver of or in any way impair the
continuing obligation of Tenant to pay the Additional Rent required by this
Article. Notwithstanding the expiration or sooner termination of the Term of
this Lease (except in the case of a cancellation by mutual written agreement),
Tenant's obligation to pay Additional Rent pursuant to this Article shall
continue and cover all periods up to the Expiration Date. The obligation of
Tenant with respect to any Additional Rent payable pursuant to this Article
shall survive the Expiration Date. Notwithstanding anything stated in this
Section 9.07 to the contrary, any Statement, Landlord's Computation or bill as
hereinabove provided shall be null
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and void unless Landlord shall have sent such Statement, Landlord's Computation
or bill within one (1) year after the receipt by Landlord of the relevant
Statement from the Accounting Firm.
ARTICLE X
Subordination, Attornment,
Notice to Lessors and Mortgagees
10.01. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to the Ground Lease and all present and
future ground leases, overriding leases and underlying leases and/or grants of
term of the Land, or EAB Plaza or the portion thereof in which the Demised
Premises are located in whole or in part now or hereafter existing and to all
mortgages and building loan agreements, which may now or hereafter affect EAB
Plaza and/or any of such leases, whether or not such mortgages shall also cover
other lands and/or buildings, to each and every advance made or hereafter to be
made under such mortgages, and to all renewals, modifications, replacements and
extensions of such leases and such mortgages
and spreaders, consolidations and correlations of such mortgages. The provisions
of this Article shall be self-operative and no further instrument of
subordination shall be required. Landlord agrees to promptly seek, and use good
faith efforts to obtain, a subordination, non-disturbance and attornment
agreement acceptable to the holders of any mortgage encumbering EAB Plaza.
10.02. In confirmation of such subordination, Tenant shall promptly
execute and deliver, at its own cost and expense (provided same is not requested
more often than twice per calendar year), any instrument, in recordable form if
requested by Landlord, that Landlord, the lessor of any such lease or the holder
of any such mortgage or any of their respective successors in interest may
request to evidence such subordination. The leases to which this Lease is, at
the time referred to, subject and subordinate pursuant to this Article,
including the Ground Lease are sometimes hereinafter called "superior leases",
and the mortgages to which this Lease is, at the time referred to, subject and
subordinate are sometimes hereinafter called "superior mortgages", and the
lessor of a superior lease or its successor in interest at the time referred to
is sometimes hereinafter called a "lessor", and the holder of a superior
mortgage or its successor in interest at the time referred to is sometimes
hereinafter called a "mortgagee".
10.03. Landlord hereby notifies Tenant that this Lease may not be
modified or amended so as to reduce the rent, shorten the term, or adversely
affect in any other respect to any material extent the rights of Landlord
hereunder, or be cancelled or surrendered without the prior written consent of
each lessor or mortgagee as defined in Section 10.02 in each instance, except
that said consent shall not be required for the institution or prosecution of
any action or proceeding against Tenant by reason of a default on the part of
Tenant under the terms of this Lease.
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10.04. This Lease shall not terminate or be terminable by Tenant by
reason of any termination of any superior lease, by summary proceedings, or
otherwise, unless the lessor under the terminated superior lease shall elect in
connection therewith to terminate this Lease and the right of Tenant to
possession of the Demised Premises; Tenant agrees without further instruments of
attornment in such case, to attorn to such lessor, to waive the provisions of
any statute or rule of law now or hereafter in effect which may give or purport
to give Tenant any right of election to terminate this Lease or to surrender
possession of the Demised Premises in the event such superior lease is
terminated, and that unless and until said lessor shall elect to terminate this
Lease and extinguish the leasehold estate demised hereunder, this Lease shall
not be affected in any way whatsoever by any such proceeding or termination.
Tenant shall take no steps to terminate this Lease, whether or not such superior
lease be terminated, without giving written notice to such lessor and all
mortgagees, and a reasonable opportunity to cure (without such lessor or
mortgagees being obligated to cure), any default on the part of Landlord under
this Lease.
10.05. If, in connection with the procurement, continuation or renewal of
any financing for which the Land, or EAB Plaza or the interest of the lessee
therein under a superior lease represents collateral in whole or in part, an
institutional lender shall request reasonable modification of this Lease as a
condition of such financing, Tenant will not withhold its consent thereto
provided that such modifications do not materially increase the obligations of
Tenant under this Lease, decrease the obligations of Landlord or otherwise
adversely affect any rights of Tenant under this Lease.
ARTICLE XI
Condemnation
11.01. If the whole of the Demised Premises shall be taken for any public
or quasi-public use by any lawful power or authority by exercise of the right of
condemnation or of eminent domain, or by agreement between Landlord or the fee
owner and those having the authority to exercise such right (hereinafter called
"Taking"), the term of this Lease and all rights of Tenant hereunder except as
hereinafter provided, shall cease and expire as of the date of vesting of title
as a result of the Taking, and the Base Rent and Additional Rent payable under
this Lease shall abate from the date on which the Taking occurs.
11.02. In the event of a Taking of less than the whole of the Demised
Premises, this Lease shall cease and expire in respect of the portion of the
Demised Premises taken upon vesting of title as a result of the Taking and, if
the Taking results in the portion of the Demised Premises remaining after the
Taking being less than 80% of the Rentable Area of the Demised Premises
immediately preceding the Taking, or if Tenant no longer has reasonable means of
access to the Demised Premises, Tenant may elect to terminate this Lease by
giving notice to Landlord of such
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election not more than thirty (30) days after the actual Taking by the
condemning authority stating the date of termination, which date shall be not
more than thirty (30) days after the date of such notice to Landlord, and upon
said date, this Lease and the term hereof and Tenant's obligations hereunder
(except those which survive the expiration or earlier termination of this Lease)
shall cease and expire. If Tenant does not elect to terminate this lease as
aforesaid: (i) the new Base Rent ("New Base Rent") payable under this Lease
shall be the product of the total Base Rent payable under this Lease multiplied
by a fraction, the numerator of which is the new Rentable Area ("New Rentable
Area") of the Demised Premises remaining after the taking, and the denominator
of which is the Rentable Area of the Demised Premises immediately preceding the
Taking, and (ii) the net award for the Taking shall be paid to and first used by
Landlord (subject to the rights of any mortgagee and/or fee owner) to restore
the portion of the Demised Premises and EAB Plaza remaining after the Taking to
substantially the same condition and tenantability (hereinafter called "pre-
taking condition") as existed immediately preceding the date of the Taking.
11.03. In the event of a Taking of less than the whole of the Demised
Premises which occurs during the period of one year next preceding the
termination date of this Lease, Landlord or Tenant may elect to terminate this
Lease by giving notice to the other party of such election, not more than thirty
(30) days after the actual Taking by the condemning authority, stating the date
of termination, which date of termination shall be no more than thirty (30) days
after the date on which such notice of termination is given and upon the date
specified in such notice, this Lease and the term hereof shall cease. On or
before such termination date, Tenant shall vacate the Demised Premises, and any
of Tenant's property remaining in the Demised Premises subsequent to such
termination date shall be deemed abandoned by Tenant and shall become the
property of Landlord.
11.04. In the event of a Taking of the Demised Premises or any part
thereof, and whether or not this Lease is terminated, Tenant shall have no claim
against Landlord or the condemning authority for the value of the unexpired term
of this Lease. Tenant agrees that in any condemnation proceeding, Tenant may
make a claim only to the extent that such claim does not diminish Landlord's
claim
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ARTICLE XII
Assignment and Subletting
12.01. Except as hereinafter provided, Tenant shall not assign, mortgage
or encumber this Lease, its interest hereunder or the estate granted hereby, nor
sublet or suffer or permit the Demised Premises or any part thereof to be used
by others, without the prior written consent of Landlord in each instance, which
consent shall not be unreasonably withheld or delayed.
12.02. If Tenant should assign its interest in this Lease, or if all or
any part of the Demised Premises be underlet or occupied by anybody other than
Tenant, Landlord may, after default by Tenant, collect rent from the assignee,
under-tenant or occupant, as the case may be, and apply the net amount to the
Base Rent and Additional 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 the covenants on the
part of Tenant contained herein. The consent by Landlord to any assignment or
underletting shall not in any way be construed to relieve Tenant from obtaining
the express consent in writing of Landlord to any further assignment or
underletting.
12.03. If Tenant shall desire to assign this Lease, or to sublet the
Demised Premises, it shall no later than thirty (30) days prior to the proposed
effective date of the assignment or sublet, submit to Landlord a written request
for Landlord's consent to such assignment or subletting, which request shall
contain the following information: (i) the name and address of the proposed
assignee or subtenant, (ii) the terms and conditions of the proposed assignment
or subletting; (iii) the nature and character of the business of the proposed
assignee or subtenant and its proposed use of the Demised Premises; and (iv)
current financial information and any other information Landlord may reasonably
request. Landlord may then, by notice to such effect given to Tenant within
thirty (30) days after either the receipt of Tenant's request for consent or the
receipt of such further information as Landlord may reasonably request pursuant
to this Section 12.03 above, whichever is later, terminate this Lease on a date
to be specified in said notice (hereinafter the "Termination Date") which date
shall be not earlier than one (1) day before the effective date of the proposed
assignment or subletting nor later than sixty-one (61) days after said effective
date. Tenant shall then vacate and surrender the Demised Premises on or before
the Termination Date and the Term of this Lease shall end on the Termination
Date as if that were the Expiration Date. Landlord shall be free to, and shall
have no liability to Tenant if Landlord should, lease all or any part of the
Demised Premises to Tenant's prospective assignee or subtenant.
12.04. If Landlord shall not exercise its option to terminate this Lease
pursuant to Section 12.03 above, Landlord shall not unreasonably withhold,
condition or delay its consent to the
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proposed assignment or subletting referred to in Tenant's notice given pursuant
to said Section, provided that the following further conditions shall be
fulfilled:
(1) The Demised Premises shall not, without Landlord's prior
consent, have been listed or otherwise publicly advertised for assignment
or subletting at a rental less than the prevailing rental for space in the
Building. However, this shall not be deemed to prohibit Tenant from
negotiating or consummating a sublease at a lower rental if Tenant shall
first have offered to sublet the space involved to Landlord for the same
rent and term by notice given with or after Tenant's request for consent
to the subletting or assignment. Landlord may accept such offer within
twenty (20) days from receipt of such request for consent or fifteen (15)
days after receipt of the offer, whichever is later;
(2) Tenant shall not then be in material default hereunder beyond
the time herein provided, if any, to cure such material default;
(3) The proposed assignee or subtenant shall have a financial
standing, be of a character, be engaged in a business, and propose to use
the Demised Premises in a manner in keeping with the standards in such
respect of the other tenancies in EAB Plaza;
(4) The proposed assignee or subtenant shall not then be a tenant,
subtenant or assignee of any space in EAB Plaza other than of space
included in the Demised Premises, nor shall the proposed assignee or
sublessee be a person or entity with whom Landlord is then actively
negotiating to lease space in EAB Plaza;
(5) The proposed use of the Demised Premises by the proposed
assignee or subtenant shall not (a) be likely to increase Landlord's
operating expenses beyond that which would be incurred for use of other
tenancies in EAB Plaza, or (b) increase the burden on existing cleaning
services or elevators over the burden prior to such proposed subletting
or assignment;
(6) No subletting shall end later than one (1) day before the
Expiration Date of this Lease or shall be for a term of less than two (2)
years unless it commences less than two (2) years before the Expiration
Date;
(7) There shall be no more than two (2) subtenants on the 8th floor
or one (1) subtenant on the 7th floor;
(8) Tenant shall reimburse Landlord on demand for any out-of-pocket
costs that may be incurred by Landlord in connection with said assignment
or sublease, including, without limitation, the costs of making
investigations as to the acceptability of
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the proposed assignee or subtenant, and legal costs incurred in connection
with the granting of any requested consent;
(9) Neither the proposed assignment or subletting nor the proposed
use of the Demised Premises by the proposed assignee or sublessee shall
be prohibited by the Ground Lease;
(10) The proposed assignee or sublessee shall covenant to comply
with the provisions of the Ground Lease; and
(11) The proposed assignee or subtenant is engaged in a business
and the Demised Premises will be used in a manner which (i) is in keeping
with the then standards of EAB Plaza; (ii) is limited to the use
expressly permitted under this Lease, and (iii) will not violate any
negative covenant as to use contained in any other lease of space of EAB
Plaza.
12.05. Every subletting hereunder is subject to the express condition,
and by accepting a sublease hereunder each subtenant shall be conclusively
deemed to have agreed, that if this Lease should be terminated prior to the
Expiration Date or if Landlord should succeed to Tenant's estate in the Demised
Premises, then at Landlord's election the subtenant shall either surrender the
Demised Premises to Landlord within sixty (60) days of Landlord's request
therefor, or attorn to and recognize Landlord as the subtenant's landlord under
the sublease and the subtenant shall promptly execute and deliver any instrument
Landlord may request to evidence such attornment.
12.06. Tenant shall furnish Landlord with a counterpart (which may be a
reproduced copy) of each sublease or assignment made hereunder within ten (10)
days after the date of its execution.
12.07. Notwithstanding any assignment and assumption by the assignee of
all or any part of the obligations of Tenant hereunder, Tenant herein named, and
each immediate or remote successor in interest of Tenant named herein, shall
remain liable jointly and severally (as a primary obligor) with its assignee and
all subsequent assignees for the performance of Tenant's obligations hereunder,
and, without limiting the generality of the foregoing, shall remain liable to
Landlord for all acts and omissions on the part of any assignee subsequent to it
in violation of any of the obligations of this Lease.
12.08. Notwithstanding anything to the contrary contained in this Lease,
no assignment of Tenant's interest in this Lease shall be binding upon Landlord
unless the assignee shall execute and deliver to Landlord an agreement, in
recordable form, whereby such assignee agrees unconditionally to be personally
bound by and to perform all of the obligations of Tenant
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hereunder and further expressly agrees that notwithstanding such assignment the
provisions of this Article shall continue to be binding upon such assignee with
respect to all future assignments and transfers. A failure or refusal of such
assignee to execute or deliver such an agreement in recordable form shall not
release the assignee from its liability for the obligations of Tenant hereunder
assumed by acceptance of the assignment of this Lease.
12.09. If Tenant shall sublet the Demised Premises to anyone for rents
which for any period shall exceed the Base Rent and Additional Rent payable
under this Lease for the same period, Tenant shall pay Landlord, as Additional
Rent hereunder, 50% of the amount of any rents, additional charges or other
consideration payable under the sublease to Tenant by the sublessee which is in
excess of the Base Rent and Additional Rent accruing during the term of the
sublease in respect of the Demised Premises pursuant to the terms hereof net of
the brokerage commissions and reasonable attorneys fees actually expended by
Tenant with respect to such sublease. The sums payable under this Section 12.09
shall be paid to Landlord as Additional Rent as and when payable by the
subtenant to Tenant.
12.10. Any transfer, by operation of law or otherwise, of Tenant's
interest in this Lease (in whole or in part) or of a fifty (50%) percent or
greater interest in Tenant or of fifty percent (50%) or more of the assets of
Tenant (whether stock, partnership interest or otherwise) shall be deemed an
assignment of this Lease within the meaning of this Article. If there has been
a previous transfer of less than a fifty (50%) percent interest in Tenant or
Tenant's assets, then any simultaneous or subsequent transfer of an interest in
Tenant or Tenant's assets which, when added to the total percentage interest
previously transferred, totals a transfer of greater than a fifty (50%) percent
interest in Tenant or Tenant's assets shall be deemed an assignment of Tenant's
interest in this Lease within the meaning of this Article.
12.11. Notwithstanding the provisions of Section 12.10 hereof, if Tenant
is a corporation, Tenant shall have the right, without the consent of Landlord,
to assign its interest in this Lease or sublet this Lease, to a parent,
subsidiary or Affiliate of Tenant or any corporation which is a successor to
Tenant either by merger or consolidation, or in connection with the transfer of
all of the business and assets of the Tenant or a public offering of Tenant's
stock provided that the successor shall have a tangible net worth, determined in
accordance with accepted accounting standards, at least equal to the tangible
net worth of Tenant at the time of the transaction. No such assignment or
sublease shall be valid unless, within ten (10) days prior to the effective date
thereof, Tenant shall deliver to Landlord (i) a duplicate original instrument of
assignment or sublease in form and substance satisfactory to Landlord, duly
executed by Tenant, (ii) in the case of an assignment, an instrument in form and
substance satisfactory to Landlord, duly executed by the assignee, in which such
assignee shall assume observance and performance of and to be personally bound
by, all of the terms, covenants and conditions of this Lease on Tenant's part to
be observed and performed.
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12.12. In the event that (i) Landlord fails to exercise any of its
options under this Article and (ii) Tenant fails to execute and deliver the
assignment or sublease to which Landlord consented within forty-five (45) days
after the giving of such consent, then, Tenant shall again comply with all of
the provisions and conditions of this Article before assigning its interest in
this Lease or subletting the Demised Premises.
ARTICLE XIII
Alterations
13.01 Tenant shall make no changes in or to the Demised Premises,
(hereinafter collectively "Tenant's Changes") without Landlord's prior written
consent, except for decorative or cosmetic changes. All alterations which shall
be permitted by Landlord shall be accomplished at Tenant's expense by
contractors approved in writing by Landlord. All installations installed in the
Demised Premises at any time, either by Tenant or by Landlord on behalf of
Tenant, shall, upon installation, become the property of Landlord and shall
remain upon and be surrendered with the Demised Premises unless Landlord, by
written notice to Tenant no later than twenty (20) days prior to the Expiration
Date, elects to have them removed by Tenant, in which event the same shall be
removed by Tenant at Tenant's expense prior to the Expiration Date.
13.02. Nothing in this Article shall be construed to give Landlord title
to or prevent Tenant's removal of trade fixtures, moveable office furniture and
equipment, but upon removal of any such equipment from the Demised Premises or
upon removal of other installations as may be required by Landlord, Tenant shall
immediately and at its expense, repair and restore the Demised Premises to the
condition existing prior to such installation to the extent required by
Landlord, and shall repair any damage to the Demised Premises or EAB Plaza due
to such removal.
13.03. All property permitted or required to be removed by Tenant at the
end of the term hereof remaining in the Demised Premises after Tenant's removal
therefrom shall be deemed abandoned and may, at the election of Landlord, be
either retained as Landlord's property or removed from the Demised Premises by
Landlord at Tenant's expense.
13.04. Prior to commencing any Tenant's Changes, Tenant shall, 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 promptly deliver duplicates of all such
permits, approvals and certificates to Landlord. Landlord agrees to reasonably
cooperate with Tenant, at no cost to Landlord, in securing such permits,
approvals and certificates. All Tenant's Changes shall be performed in
compliance with all applicable requirements of insurance bodies having
jurisdiction over the Demised Premises, and in such manner as not to interfere
with, delay, or impose any additional expense upon Landlord in the construction,
maintenance or
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operation of EAB Plaza. Tenant, at its expense, and with due diligence and
dispatch, shall procure the cancellation or discharge or bonding of all notices
of violation or mechanic's liens arising from or otherwise connected with
Tenant's Changes. Additionally, Tenant agrees to carry and will cause Tenant's
contractors and sub-contractors to carry such workers' compensation, general
liability, personal and property damage insurance as Landlord may reasonably
require.
13.05. Landlord requires submission to it of plans and specifications in
connection with granting or withholding its consent to any Tenant's Change.
Landlord shall use good faith efforts to respond to any request for its consent
to any Tenant Change within a reasonable time not to exceed twenty (20) days.
Landlord shall have no obligation to consent to any plans and specifications
concerning any Tenant's Change if said plans and specifications have not been
prepared by Landlord's mechanical engineer, architect and structural engineer,
all at Tenant's cost and expense. Prior to granting its consent to any such
Tenant's Change, Landlord may impose such conditions as Landlord, in its
reasonable discretion, may consider desirable including without limitation
reimbursing to Landlord the reasonable cost of review of said plans and
specifications by said professionals.
13.06. In the event Landlord or its agents shall physically accomplish any
Tenant's Change (other than those intended to be made to prepare the Demised
Premises for Tenant's initial occupancy), Tenant shall pay to Landlord as
Additional Rent (as said term is defined in Article V of this Lease) a fee equal
to the cost to the Landlord for the work plus five (5%) percent of said cost for
Landlord's overhead. In the event Tenant or its agents shall physically
accomplish any Tenant's Change (other than those intended to be made to prepare
the Demised Premises for Tenant's initial occupancy), Tenant shall pay to
Landlord as Additional Rent a supervision fee equal to ten (10%) percent of the
cost of said Tenant's Change. There shall be excluded from the cost of any
Tenant's Change the cost of furniture, furnishings, office equipment, items of
special decoration, telephone installation and items of similar character.
ARTICLE XIV
Access to Demised Premises
14.01. Landlord or Landlord's agents shall have the right to enter the
Demised Premises in any emergency at any time, and, at other reasonable times
upon reasonable notice, to examine the same and to make such repairs,
replacements and improvements as Landlord may deem necessary and desirable to
the Demised Premises or to any other portion which Landlord may elect to perform
following Tenant's failure to make repairs or perform any work which Tenant is
obligated to perform under this Lease, or for the purpose of complying with
laws, regulations and other directions of governmental authorities. Tenant shall
not 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 otherwise.
Throughout the term hereof Landlord shall have the right to enter the Demised
Premises at reasonable hours upon reasonable notice for the purpose of showing
the same to
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prospective purchasers or mortgagees of EAB Plaza and during the last twelve
(12) 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 Demised
Premises, Landlord or Landlord's agents may enter the same whenever such entry
may be necessary by master key or forcibly and provided Landlord uses good faith
efforts to notify Tenant prior to such entry and reasonable care is exercised to
safeguard Tenant's property, and such entry shall not render Landlord or its
agents liable therefor, nor in any event shall the obligations of Tenant
hereunder be affected.
ARTICLE XV
Repairs
15.01. Landlord shall maintain and repair the Common Areas both exterior
and interior. Tenant shall take good care of the Demised Premises and the
fixtures and appurtenances therein and, at Tenant's sole cost and expense, make
all non-structural repairs thereto as and when needed to preserve said Demised
Premises and fixtures in good working order and condition, reasonable wear and
tear, obsolescence and damage from the elements, fire or other casualty,
excepted. Notwithstanding the foregoing, all damage or injury to the Demised
Premises or to any other part of EAB Plaza or to its fixtures, equipment and
appurtenances whether requiring structural or non-structural repairs, caused by
or resulting from neglect or improper conduct of Tenant, Tenant's servants,
employees, invitees or licensees, shall be repaired promptly by Tenant at its
sole cost and expense, to the satisfaction of Landlord in its sole and absolute
judgment. Tenant shall also repair all damage to EAB Plaza and the Demised
Premises caused by the moving of Tenant's fixtures, furniture or equipment. All
the aforesaid repairs shall be of the quality and class equal to or better than
the original work or construction.
15.02. Tenant shall give Landlord prompt notice of any defective
condition in any plumbing, heating system or electrical lines located in,
servicing or passing through the Demised Premises and, following such notice,
Landlord shall remedy the condition with due diligence but at the expense of
Tenant if and only if repairs are necessitated by damage or injury attributable
to Tenant, or Tenant's servants, agents, employees, invitees or licensees as
aforesaid. Except as specifically provided in this Lease, there shall be no
allowance to Tenant for a diminution of rental value and no liability on the
part of Landlord by reason of inconvenience, annoyance or injury to business
arising from Landlord, Tenant or others making or failing to make any repairs,
alterations, additions or improvements in or to any portion of EAB Plaza, or the
Demised Premises or in and to the fixtures, appurtenances or equipment thereof.
The provisions of this Article with respect to the making of repairs shall not
apply in the case of fire or other casualty which are provided for in Article
XIX hereof.
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ARTICLE XVI
Compliance with Laws
16.01. Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirements of any public authority
with respect to the Demised Premises or the use or occupation thereof. Prior to
the Commencement Date, if Tenant is then in possession of the Demised Premises,
and at all times thereafter, Tenant shall promptly comply with all present and
future laws, orders and regulations of all state, federal, town, municipal and
local governments, departments, commissions and boards or any direction of any
public officer pursuant to law, and all orders, rules and regulations of the New
York Board of Fire Underwriters or any similar body which shall impose any
violation, order or duty upon Landlord or Tenant with respect to Tenant's use of
the Demised Premises (in which event Tenant shall effect such compliance at its
sole cost and expense) or EAB Plaza (in which event, notwithstanding anything
herein to the contrary, Landlord shall effect such compliance but Tenant shall
promptly pay Tenant's Pro Rata Share of the cost thereof as it relates to any
such laws, orders, or regulations enacted, instituted or issued subsequent to
the date hereof). Tenant shall pay all costs, expenses, fines, penalties or
damages, which may be imposed upon Landlord 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, on the Commencement Date or at any time thereafter,
be higher than it otherwise would be, then Tenant shall reimburse Landlord, as
Additional Rent hereunder, for that portion of all fire insurance premiums
thereafter paid by Landlord which shall have been charged because of such
failure by Tenant, and shall make such reimbursement within fifteen (15) days of
demand.
16.02. Tenant shall not place a load upon any floor of the Demised
Premises exceeding the floor load per square foot area which said floor was
designed to carry and which is allowed by law.
16.03. Landlord shall be responsible for keeping the Common Areas in
compliance with all applicable provisions of the Americans with Disabilities Act
of 1990 and its implementing regulations, as amended or supplemented from time
to time (collectively, the "ADA"), and all similar applicable state and local
laws, rules and regulations. Tenant shall be responsible for causing the Demised
Premises to be in compliance with all applicable provisions of the ADA, and all
similar applicable state and local laws, rules and regulations. Each party will
hold the other party harmless and indemnify the other party from all claims,
demands, judgments, costs and expenses (including reasonable attorneys' fees)
and losses arising out of or relating to the indemnifying party's breach of any
of its obligations under this Section 16.03. The provisions of this Section
shall survive the expiration or earlier termination of this Lease.
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ARTICLE XVII
Bankruptcy
17.01. If at any time prior to the Commencement Date there shall be filed
by or against Tenant in any court or governmental agency or instrumentality
pursuant to any statute either of the United States or of any State a petition
in bankruptcy or insolvency or for reorganization or for the appointment of a
receiver or trustee of all or a portion of Tenant's property, or if Tenant makes
an assignment for the benefit of creditors, or petitions for or enters into an
arrangement with creditors, this Lease shall ipso facto be cancelled and
terminated and in which event neither Tenant nor any person claiming through or
under Tenant or by virtue of any other provisions herein or elsewhere in this
Lease contained or by virtue of any statute or rule or law, may retain as
liquidated damages any rent or any deposit or monies received by it from Tenant
or others on behalf of Tenant.
17.02. If at the Commencement Date or if at any time during the Term of
this Lease there shall be filed by or against Tenant in any court or
governmental agency or instrumentality pursuant to any statute either of the
United States or of any State a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of Tenant's property or if Tenant makes an assignment for the benefit of
creditors or petitions for or enters into an arrangement with creditors, this
Lease, at the option of Landlord exercised within a reasonable time after notice
of the happening of any one or more of such events, may be cancelled and
terminated by written notice by Landlord to Tenant and in which event neither
Tenant nor any person claiming through or under Tenant by virtue of any statute
or of any order of any court or governmental agency or instrumentality shall be
entitled to possession or to remain in possession of the Demised Premises but
shall forthwith quit and surrender the Demised Premises and Landlord, in
addition to the other rights and remedies it has by virtue of any other
provisions herein or elsewhere in this Lease contained or by virtue of any
statute or rule of law, may retain as liquidated damages any rent, security,
deposit or monies received by Landlord from Tenant or others on behalf of
Tenant.
17.03. At any of the times mentioned in either Sections 17.01 or 17.02
hereof, if an involuntary insolvency, bankruptcy or reorganization proceeding
shall be instituted against Tenant as provided in said Sections, Tenant shall
have ninety (90) days in which to vacate the same before Landlord shall have any
right to terminate this Lease.
17.04. It is stipulated and agreed that in the event of the termination of
this Lease pursuant to Sections 17.01 or 17.02 hereof, Landlord 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
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portion of the Term of this Lease and the fair market rental value of the
Demised Premises, if lower than the rent reserved, at the time of termination,
for the unexpired portion of the Term of this Lease, both discounted at the rate
of four (4%) percent per annum to present worth thereof. Nothing contained
herein shall limit or prejudice the right of Landlord 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. In determining the fair market rental value of the Demised Premises
the rent realized by any arms-length re-letting, if such re-letting be
accomplished by Landlord within a reasonable time after termination of this
Lease, shall be deemed prima facie to be the fair market rental value. Any
disputes with respect to the fair market rental value shall be resolved pursuant
to the arbitration provisions of this Lease.
ARTICLE XVIII
Damage by Fire or Other Cause
18.01. Tenant shall give prompt notice to Landlord in case of fire or
other damage to the Demised Premises or EAB Plaza.
18.02. Except as otherwise provided herein, if the Demised Premises or EAB
Plaza shall be damaged by fire or other casualty, Landlord, at Landlord's
expense, shall repair such damage. However, Landlord shall have no obligation to
repair any damage to, or to replace, Tenant's personal property or any other
property or effects of Tenant. If the Demised Premises shall be rendered
untenantable by reason of any such damage, the Base Rent and Additional Rent
shall abate for the period from the date of such damage to the date when such
damage shall have been repaired, and if only a part of the Demised Premises
shall be so rendered untenantable, the Base Rent and Additional Rent shall abate
for such period in the proportion which the Rentable Area of the Demised
Premises so rendered untenantable bears to the total area of the Demised
Premises. However, if, prior to the date when all of such damage shall have been
repaired, any part of the Demised Premises so damaged shall be rendered
tenantable and shall be used or occupied by Tenant or other persons claiming
through or under Tenant, then the amount by which the Base Rent and Additional
Rent shall abate shall be equitably apportioned for the period from the date of
any such use or occupancy to the date when all such damage shall have been
repaired. Tenant hereby expressly waives the provisions of Section 227 of the
New York Real Property Law, and of any successor law of like import then in
force, and Tenant agrees that the provisions of this Article shall govern and
control in lieu thereof.
18.03. Notwithstanding the foregoing provisions of this Article, if prior
to or during the term of this Lease, (i) the Demised Premises shall be totally
damaged or rendered wholly
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untenantable by fire or other casualty, and if Landlord shall decide not to
restore the Premises, or (ii) EAB Plaza shall be so damaged by fire or other
casualty that, in the Landlord's opinion, substantial alteration, demolition, or
reconstruction of EAB Plaza shall be required (whether or not the Demised
Premises shall have been damaged or rendered untenantable), then, in any of such
events, Landlord at Landlord's option, may give to Tenant, within ninety (90)
days after such fire or other casualty, a five (5) days' notice of termination
of this Lease and, in the event such notice is given, this Lease and the Term
shall have come to an end and expire (whether or not said Term shall have
commenced) upon the expiration of said five (5) days with the same effect as if
the date of expiration of said five (5) days were the Expiration Date, the Base
Rent and Additional Rent shall be apportioned as of such date which is the later
of (i) the date of the fire or other casualty or (ii) the date Tenant is no
longer able to use the Demised Premises for the Permitted Use, and any prepaid
portion for any period after such date shall be refunded by Landlord to Tenant.
18.04. If this Lease shall not be terminated as provided in Section 18.03
hereof, Landlord shall, at its expense, to the extent of the net insurance
recovery, repair or restore the Demised Premises with reasonable diligence and
dispatch, to the condition existing immediately prior to the casualty except
that Landlord shall not be required to repair or restore any of Tenant's
leasehold improvements or betterments, furniture, furnishings, decorations or
any other installations made at Tenant's expense. In the event Landlord does not
substantially complete such repair and restoration within nine (9) months,
Tenant may terminate this Lease upon thirty (30) days notice to Landlord. This
Lease shall terminate at the end of such period as if said date were the
expiration date set forth in the Lease provided, however, that said termination
notice shall be deemed null and void in the event said repair and restoration
has been substantially completed as of the expiration of such thirty (30) day
period. All insurance proceeds payable to Tenant for such items shall be held in
trust by Tenant and upon the completion by Landlord of repair or restoration,
Tenant shall prepare the Demised Premises for occupancy by Tenant in the manner
obtaining immediately prior to the damage or destruction in accordance with
plans and specifications approved by Landlord.
ARTICLE XIX
Insurance
19.01. Tenant shall maintain with companies rated at least A-12 by Best's
Key Rating Guide and otherwise approved by Landlord (i) public liability
insurance, against all claims, demands or actions for personal injury to or
death of any one person in an amount of not less than $1,000,000 and for injury
to or death of more than one person in any one accident or occurrence to the
limit of not less than $3,000,000 and for damage to property in an amount of not
less than $300,000 made by or on behalf of any person, arising from, related
to, or in any way connected
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with the conduct and operation of Tenant's use of or occupancy of the Demised
Premises, or caused by actions or omissions to act, where there is a duty to
act, of Tenant, its agents, servants and contractors, which insurance shall name
Landlord, its agents, servants, employees, contractors, licensees and invitees
and any other parties designated by Landlord as additional insureds; (ii) fire
insurance, with such extended coverage, vandalism, malicious mischief and
sprinkler leakage endorsements attached as Landlord may, from time to time,
require, covering all fixtures and equipment, stock in trade, furniture,
furnishings, improvements or betterments installed or made by Tenant in, on or
about the Demised Premises to the extent of at least 100% of their replacement
value, without deduction for depreciation, but in any event in an amount
sufficient to prevent Tenant from becoming a co-insurer under provisions of
applicable policies; and (iii) workmen's compensation insurance covering all
persons employed by Tenant or in connection with any work performed by Tenant.
All of Tenant's insurance shall be in form satisfactory to Landlord and shall
provide that it shall not be subject to cancellation, termination or change
except after at least 30 days prior written notice to Landlord. All policies
required pursuant to this Section 19.01 or duly executed certificates for the
same shall be deposited with Landlord not less than 10 days prior to the day
Tenant is expected to take occupancy and upon renewals of said policies not less
than 30 days prior to the expiration of the term of such coverage. All such
policies or certificates shall be delivered with satisfactory evidence of the
payment of the premium therefor. Landlord and Tenant mutually agree that with
respect to any loss which is covered by insurance then being carried by them
respectively, or required to be carried, or as to any coverage which Landlord
agrees need not be carried, the party suffering a loss, releases the other of
and from any and all claim with respect to such loss; and they further mutually
agree that their respective insurance companies shall have no right of
subrogation against the other on account thereof. In the event that an extra
premium is payable by either party as a result of this provision, the other
party shall reimburse the party paying such premium the amount of such extra
premium. If, at the written request of one party, this release and
nonsubrogation provision is waived, then the obligation of reimbursement shall
cease for such period of time as such waiver shall be effective, but nothing
contained in this paragraph shall be deemed to modify or otherwise affect
releases elsewhere herein contained, of either party from liability from claims.
19.02. Tenant shall pay to Landlord on demand any increase in premiums
that may be charged on insurance carried by Landlord resulting from Tenant's use
or occupancy other than the Permitted Use of the Demised Premises, whether or
not Landlord has consented to the same. In determining whether increased
premiums are the result of Tenant's use or occupancy other than the Permitted
Use or vacancy of the Demised Premises, a schedule or "makeup" rate of the
organization issuing the fire insurance, extended coverage, vandalism, and
malicious mischief, special extended coverage or any or all risk insurance rates
for the Demised Premises or any rule books issued by the rating organization or
similar bodies or by rating procedures or rules of Landlord's insurance
companies shall be conclusive evidence of the several items and charges which
make up the insurance rates and premiums on EAB Plaza. If, due to the (i)
occupancy, or (ii) abandonment, or (iii) Tenant's failure to occupy the Demised
Premises as herein provided, any
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such insurance shall be cancelled by the insurance carrier, then, in any of such
events Tenant shall indemnify and hold Landlord harmless against any loss which
would have been covered by such insurance. Tenant also shall pay any increase in
premiums on such rent insurance as may be carried by Landlord for its protection
against rent loss through fire or other casualty, if such increase shall result
from any of the foregoing events.
ARTICLE XX
Services and Equipment
20.01. Landlord, at its cost and expense, shall provide to Tenant such
passenger and freight elevator service during normal business hours and normal
business days (as said terms are defined in Section 20.08 hereof) as shall be
reasonably necessary for the accomplishment of the Permitted Use. Tenant shall
pay as Additional Rent hereunder the costs and expenses incurred by Landlord in
providing additional freight elevator service beyond normal business hours and
normal business days (except for Tenant's initial move in), provided, however,
Landlord shall be under no obligation to provide any such additional freight
elevator service.
20.02. Landlord, at its cost and expense, shall maintain, operate and keep
in good working order and repair the heating, ventilating and air conditioning
systems (the "HVAC") installed by Landlord. Subject to any applicable policies
or regulations adopted by any utility or governmental authority, the aforesaid
systems shall be operated by Landlord during normal business hours on normal
business days (as said terms are hereinafter defined) when seasonably required
as determined by Landlord. In the event Tenant shall require HVAC services for
any part of the Demised Premises beyond normal business hours or beyond normal
business days, Landlord shall furnish such services upon not less than
twenty-four (24) hours' prior written notice from Tenant received by Landlord
during normal business hours. Tenant shall pay upon demand by Landlord the
actual costs incurred by Landlord in furnishing such services, including
electricity costs, as well as ten (10%) percent of said costs as Landlord's
profit plus ten (10%) percent of said costs as Landlord's overhead, it being
understood and agreed that said costs, including overhead and profit are now
$52.36 per floor per hour for such overtime HVAC services and $.40 per ton of
chilled water consumed. Landlord shall provide Tenant with written notice of any
increases in the actual cost of overhead HVAC services or chilled water and such
increased rates shall be applicable to any usage of same by Tenant subsequent to
Landlord's notice of increase.
20.03. Tenant covenants that it will at all times comply with all
regulations and requirements which Landlord may reasonably prescribe for the
proper functioning and protection of the HVAC. Any use or occupancy of the
Demised Premises during the hours or days Landlord is not so required pursuant
to this Article XX to furnish HVAC to the Demised
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Premises shall be at the sole risk, responsibility and hazard of Tenant. If
Tenant's use of the Demised Premises, or any part thereof, exceeds the design
condition limitations of the HVAC (including occupancy of one person per 100
square feet and total electrical load from Tenant's light and power of 3 watts
per square foot), or if Tenant rearranges partitions in such a manner as to
interfere with the normal operations of these systems, Landlord at its option
and at Tenant's expense, may make the changes to said systems made necessary by
said use or said rearrangement.
20.04. Landlord, at its cost and expense subject to the reimbursement
provisions provided in this Section 20.04 and in Section 20.12 hereof, shall
furnish janitorial and cleaning services in the Demised Premises in accordance
with the "Cleaning and Janitorial Service" requirements attached as Exhibit "C"
hereto. Notwithstanding the foregoing, however, any portion of the Demised
Premises used for (i) preparation, dispensing or consuming food or beverages;
(ii) data processing or computer operations; (iii) medical areas, or (iv)
storage areas will be serviced pursuant to Exhibit "C", but at such additional
charge to Tenant as shall be agreed upon by Landlord and Tenant. Should Landlord
and Tenant fail to so agree, the matter shall be referred to arbitration
pursuant to the provisions of Article XLI of this Lease. In those areas as noted
above in subsections (i) through (iv), Landlord shall remove waste paper
accumulated daily (during normal business hours) in the routine of business
office occupancy. Tenant shall pay Landlord a reasonable charge for any extra
cleaning work in the Demised Premises required because of (i) misuse or neglect
on the part of Tenant or its employees or visitors; (ii) private lavatories or
toilets or other special facilities requiring greater or more difficult cleaning
work than normal office areas; (iii) the cleaning of unusual quantities of
interior glass surfaces or other non-building standard materials or finishes
installed by Tenant; or (iv) the removal of so much of any refuse and rubbish of
Tenant as shall exceed that ordinarily accumulated daily in the routine of
business office occupancy. Landlord, its cleaning contractor and their employees
shall have access to the Demised Premises subject to Tenant's reasonable
security requirements after normal business hours and such use of light, power
and water in the Demised Premises as is reasonably required for cleaning the
Demised Premises in accordance with said Exhibit "C".
20.05. Landlord shall furnish, at its cost and expense, hot and cold water
for ordinary lavatory, drinking and office cleaning purposes only. The cost of
heating water for use or consumption in connection with the operation of any
dining or kitchen areas located in the Demised Premises if so permitted by
Landlord as hereinafter provided shall be at a reasonable additional charge to
Tenant. If Tenant requires, uses or consumes water for any other purpose or in
unusual quantities (of which fact Landlord shall be the sole judge) Landlord 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 measure Tenant's water
consumption and Tenant shall pay for all water consumed as shown on said meter
as Additional Rent as and when the bills are rendered and in default in making
such payment. Landlord may pay such charges and collect same from Tenant. If a
water meter is so installed, Tenant covenants and agrees to pay its Pro Rata
Share of
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the sewer rents and all other charges which are now or hereafter assessed,
imposed or may become a lien on the Demised Premises or EAB Plaza. Such a meter
shall also be installed and maintained at Tenant's sole expense if required by
applicable law or governmental regulation or order.
20.06. Landlord, at Tenant's expense and request, shall maintain listings
on the computerized Building Directory for EAB Plaza of the name of Tenant, any
permitted assignees thereof or permitted sub-tenants, and the names of any of
their officers and employees, provided that the names so listed shall not take
up more than Tenant's Pro Rata Share of space on the Building Directory. In
addition, Landlord at Tenant's expense and request, shall install a directory
insert at the base of the elevator bank serving the Demised Premises. The
directory insert shall be comparable to those maintained by Landlord for other
Tenants located in the Tower containing the Demised Premises.
20.07. No sign or signs will be permitted in the public corridors or on
corridor doors or entrances to the Demised Premises, and no sign shall be
affixed or installed by Tenant, without the prior written consent of Landlord in
each instance.
20.08. For the purpose of this Article, "normal business hours" for the
Demised Premises shall be from 8 AM to 6 PM on weekdays and from 8 AM to 1 PM on
Saturdays. Normal business hours shall be observed on "normal business days",
which shall be all days except Sundays and those holidays listed on Exhibit "D"
annexed hereto.
20.09. Landlord reserves the right to interrupt, curtail or suspend
services of the water, heating, air-conditioning, ventilating, elevator,
plumbing and electric systems, when necessary for repairs or alterations which,
in the sole judgment of Landlord are desirable or necessary to be made, or when
required by any governmental law, order or regulation, or for any other cause
beyond the reasonable control of Landlord, and until such time as said repairs
or alterations shall have been completed Landlord shall have no responsibility
or liability for failure to supply heat, water, air-conditioning, elevator,
plumbing, electric, cleaning and janitor services during said period, or when
prevented from so doing by strikes, accidents, or by any cause beyond Landlord's
control or by governmental laws, orders, or regulations or failure of a suitable
fuel supply, or inability by exercise or reasonable diligence to obtain suitable
fuel. Landlord will use its best efforts to remove or eliminate the cause of any
such failure as promptly as possible, and will perform said work in such manner
as to cause reasonably minimal interference with Tenant's use and enjoyment of
the Demised Premises. No diminution or abatement of Base Rent, Additional Rent
or other compensation shall or will be claimed by Tenant as a result therefrom,
nor shall this cause any of Tenant's obligations hereunder to be affected or
reduced by reason of such interruption, curtailment or suspension.
Notwithstanding anything herein to the contrary, if due to (i) any work being
performed by Landlord in EAB Plaza, the Demised Premises are rendered wholly
untenantable and Landlord shall fail to cease such work or remedy the condition
caused by
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such work within thirty (30) days following notice thereof by Tenant, other than
due to an Unavoidable Delay (as hereinafter defined) or as otherwise provided in
Article XXXVI hereof, or (ii) the failure of Landlord to substantially complete
any repairs required under this Lease for any reason within thirty (30) days
following notice thereby by Tenant (other than due to any Unavoidable Delay), or
(iii) the negligence of Landlord, its agents, employees or contractors, the
supply of electricity to the Demised Premises is denied, and in any of the
events set forth in (i) - (iii) above Tenant in its reasonable judgment shall be
unable for a period of at least twenty (20) consecutive business days to
substantially operate its business in the Demised Premises for the use set forth
in Article III herein then Tenant may institute a separate action or proceeding
for the actual or compensatory damages but Tenant may not recover consequential,
contingent, or special damages or damages for alleged lost profits. In no event
shall Tenant be entitled to any right of offset. "Unavoidable Delays" shall mean
any causes whatsoever beyond Landlord's reasonable control which shall prevent
Landlord from performing obligations expressly imposed upon Landlord pursuant to
this Lease including, without limitation, strikes, riots, labor troubles,
accidents, laws, orders, rules, or regulations imposed by any governmental
agency or instrumentality, governmental preemption in connection with a national
emergency, or matters of supply which have been or are affected by war or other
emergency.
20.10. It is expressly agreed that only Landlord or any one or more
persons, firms or corporations authorized in writing by Landlord will be
permitted to furnish laundry, linen, towels, and other similar supplies and
services to tenants and licensees at EAB Plaza. Landlord may fix, in its own
absolute discretion, at any time and from time to time, the hours during which
and the regulations under which such supplies and services are to be furnished.
Landlord expressly reserves the right to act as or to designate, at any time and
from time to time, an exclusive supplier of all or any one or more of the said
supplies and services, provided that the quality thereof and the charges
therefor are reasonably comparable to that of other suppliers; and Landlord
furthermore expressly reserves the right to exclude EAB Plaza any person, firm
or corporation attempting to furnish any of said supplies or services but not so
designated by Landlord.
20.11. Tenant, at its sole cost and expense, shall cause the Demised
Premises to be exterminated to the reasonable satisfaction of Landlord using
exterminators approved by Landlord.
20.12. Landlord shall render bills concerning all services provided to
Tenant by Landlord which costs are the responsibility of Tenant to pay pursuant
to the terms of this Article XX, with all such sums so billed due and payable by
Tenant as Additional Rent within thirty (30) days after the date said bill shall
have been rendered to Tenant. Any dispute concerning said payment shall be
referred to arbitration pursuant to the provisions of Article XLI of this Lease.
The costs of such services shall include Landlord's actual costs for fuel,
electricity and reasonable associated personnel salaries and benefits.
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20.13. Tenant shall have no right to maintain any facilities in the
Demised Premises for cooking or the preparation of food in any form. Without
limiting the generality of the foregoing, Tenant shall not install or maintain
in the Demised Premises a gas or electric range, electric or microwave ovens,
hot plates or so called Dwyer kitchen units. Tenant shall have the right to
maintain a machine for the making of hot beverages provided the electric
consumption thereof does not exceed the capacity of the electric service to the
Demised Premises.
ARTICLE XXI
Rules and Regulations
21.01. Tenant shall observe strictly the rules and regulations set forth
in Exhibit "E" annexed hereto and such other and further reasonable rules and
regulations as Landlord or Landlord's agents may from time to time adopt (such
rules and regulations as have been or may hereafter be adopted or amended are
hereinafter the "Rules and Regulations"), provided same are uniformly applied.
ARTICLE XXII
Liability of Landlord
22.01. Landlord or its partners or their directors, officers, employees
and agents shall not be liable for any damages or injury to property of Tenant
or of any other person, including property entrusted to employees of Landlord,
nor loss of or damage to any property of Tenant or its customers by theft or
otherwise, nor for any injury or damage to persons or property resulting from
any cause whatsoever, arising from the acts or neglect of any tenant, occupant,
invitee or licensee of EAB Plaza, or from any other cause whatsoever, unless
caused by the unlawful act or omission of Landlord nor shall Landlord or its
partners or their directors, officers, agents or employees be liable for any
such damage caused by other tenants or persons in, upon or about EAB Plaza, or
caused by operations in construction of any private, public or quasi-public
work; nor shall Landlord or its partners or their directors, officers, agents or
employees be liable for any latent defect in the Demised Premises or in EAB
Plaza.
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ARTICLE XXIII
Indemnification of Landlord
23.01. Tenant shall indemnify and save harmless Landlord and its employees
and agents against and from (i) any and all claims against Landlord of whatever
nature arising from any act, omission or negligence of Tenant, its contractors,
licensees, agents, servants, employees, invitees or visitors, (ii) all claims
against Landlord arising from any accident, injury or damage whatsoever caused
to any person or to the property of any person and occurring during the term of
this Lease in or about the Demised Premises, except to the extent that such
accident, injury or damage is caused by or arises out of any act, omission or
negligence of Landlord, (iii) all claims against Landlord arising from any
accident, injury or damage occurring outside of the Demised Premises but
anywhere within or about EAB Plaza, where such accident, injury or damage
results or is claimed to have resulted from an act or omission of Tenant or
Tenant's agents, employees, invitees or visitors, and (iv) any breach, violation
or non-performance of any covenant, condition or agreement in this Lease set
forth and contained on the part of Tenant to be fulfilled, kept, observed and
performed. This indemnity and hold harmless agreement shall include indemnity
from and against any and all liability, fines, suits, demands, costs and
expenses of any kind or nature incurred in or in connection with any such claim
or proceeding brought thereon, and the defense thereof including without
limitation attorneys fees and disbursements. The Tenant's obligations to
Landlord pursuant to this Article shall survive the expiration or sooner
termination of this Lease.
ARTICLE XXIV
Parking and Common Area Use
24.01. Tenant has been advised that the parking area ratio for EAB Plaza
is four spaces for each thousand (1,000) square feet of Rentable Area. Subject
to the Parking Area Rules and Regulations annexed hereto as part of Exhibit E,
Tenant and its employees shall be permitted to park in the garage and surface
parking lot serving EAB Plaza (subject to reserved spaces) and Tenant
understands that parking spaces shall not be reserved (except as designated) but
on a first in basis. Tenant and Tenant's servants, employees, agents, visitors,
and licensees shall park their passenger vehicles, trucks or delivery vehicles
only in areas designated by the Landlord as areas for such parking.
24.02. Tenant shall, upon twenty (20) days' written notice from Landlord,
furnish Landlord or its authorized agent the state automobile license numbers
assigned to its automobiles and the automobiles of all of its employees.
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24.03. Landlord shall have the right to impose parking charges or fees on
a uniform or nondiscriminatory basis, and to create validation systems, barriers
or gates, permits, stickers and other systems in connection with the operation
of the parking areas.
24.04. Notwithstanding the foregoing, Landlord shall provide Tenant twenty
(20) indoor parking spaces in those areas designated on Exhibit "F" annexed
hereto. Landlord, upon thirty (30) days written notice to Tenant, shall have the
right to change the location of Tenant's parking spaces, to any other indoor
location. Landlord shall have no responsibility for policing any parking spaces.
ARTICLE XXV
Right to Perform
25.01. If Tenant shall default beyond any applicable notice and cure
periods in the observance or performance of any obligation of Tenant under this
Lease, then, unless otherwise provided elsewhere hereunder, Landlord may
immediately or at any time thereafter without notice perform such obligation of
Tenant without thereby waiving such default. If Landlord, in connection
therewith incurs any costs including, but not limited to, attorneys' fees in
instituting, prosecuting or defending any action or proceeding, such costs with
interest at the rate of twelve (12%) percent per annum, shall be deemed to be
Additional Rent hereunder and shall be paid by Tenant to Landlord within five
(5) days of rendition of any bill or statement to Tenant therefor.
ARTICLE XXVI
Defaults
26.01. Tenant shall be deemed in default of the obligations to be
performed by it pursuant to the provisions of this Lease if Tenant shall fail to
make payment of the Base Rent, or of any item of Additional Rent, or of any
other payment reserved herein within the time provided in this Lease for payment
of same to be made, and said failure continues for a period of ten (10) days
after giving written notice thereof from Landlord, or if Tenant shall fail to
fulfill any of the covenants of this Lease other than the covenants for the
payments reserved herein, and said failure shall continue for a period of twenty
(20) days after giving written notice thereof from Landlord specifying such
failure (or, in the case of a default or omission the nature of which cannot be
completely cured or remedied within twenty (20) days, Tenant shall not have
diligently commenced curing such default within said twenty (20) day period and
not thereafter with reasonable dispatch and diligence and in good faith
proceeded to remedy or cure such default, all in Landlord's sole judgment) or if
Tenant shall fail to take possession within fifteen (15) days after
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the Commencement Date or if the Demised Premises shall be abandoned or if the
Demised Premises are damaged by reason of negligence or carelessness of Tenant.
In the event of any such default by Tenant, Landlord may give five (5) days'
notice of its intention to end the Term of this Lease and thereupon at the
expiration of said five (5) days, the Term of this Lease shall expire. Tenant
shall then quit and surrender the Demised Premises, but shall remain liable as
hereinafter provided.
26.02. If the notice last provided for in Section 26.01 hereof shall have
been given and the Term hereof shall expire as aforesaid, then and in such event
Landlord may without additional notice re-enter the Demised Premises, either by
force or otherwise, and dispossess Tenant and the legal representative of Tenant
or other occupant of the Demised Premises by summary proceeding or otherwise
remove their effects and hold the Demised Premises as if this Lease had not been
made, and Tenant and its legal representative or other occupant of the Demised
Premises hereby waive the service of notice of intention to re-enter or to
institute legal proceedings to that end. If Tenant shall default hereunder prior
to the date fixed as the commencement of any renewal or extension of this Lease,
then Landlord may cancel and terminate such renewal or extension.
26.03. In case of any such default, re-entry, expiration and/or dispossess
by summary proceedings or otherwise, as aforesaid, (i) the Base Rent, Additional
Rent and other payments reserved herein, if not previously due, shall be due and
be paid up to the time of such re-entry, dispossess and/or expiration, together
with such expenses as Landlord may incur for legal expenses, attorneys' fees,
brokerage fees and/or putting the Demised Premises in good order or for
preparing the same for re-rental; (ii) Landlord may re-let the Demised Premises
or any part or parts thereof, either in its own name or otherwise, for a term or
terms which may, at its option, be shorter or longer than the period which would
otherwise have constituted the remainder of the Term of this Lease and may grant
concessions or free rent, only, however, to such extent as Landlord in
Landlord's sole judgment considers advisable and necessary to re-let the same;
and (iii) Tenant or its successors shall also pay the Landlord as liquidated
damages for the failure of Tenant to observe and perform its covenants contained
herein, at Landlord's option, either (a) all monetary obligations arising under
this Lease including without limitation Base Rent and Additional Rent required
under the Lease after Tenant abandons the Demised Premises or is evicted or
dispossessed or (b) any deficiency between the Base Rent, Additional Rent and
other payments hereby reserved and either (x) the net amount, if any, of the
rents collected on account of the lease or leases of the Demised Premises or
parts thereof for each month of the period which would otherwise have
constituted the remainder of the Term of this Lease, or (y) an amount equal to
the difference between the Base Rent for the unexpired portion of the Term of
this Lease and the fair market rental value of the Demised Premises, if lower
than the rent reserved, at the time of termination for the unexpired portion of
the Term of this Lease, discounted at the rate of four (4%) percent per annum to
present worth.
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26.04. The failure of Landlord to re-let the Demised Premises or any part
or parts thereof shall not release or affect Tenant's liability for damages,
Landlord being under no duty to mitigate its damages as a result of Tenant's
default hereunder. In computing such liquidated damages, there shall be added to
said deficiency such expenses as Landlord shall incur in connection with such
re-letting, such as legal expenses, attorneys' fees, brokerage, advertising and
for restoring the Demised Premises to or keeping same in good working order. Any
such liquidated damages specified in Section 26.03(a)(x) shall be paid in
monthly installments 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 Landlord to collect the deficiency for any
subsequent month by a similar proceeding. Upon Landlord's permitted entry
hereunder, Landlord, at its option, may make such alterations, repairs,
replacements and decorations in the Demised Premises as Landlord in its sole
judgment considers advisable or necessary for the purpose of re-letting the
Demised Premises, and the making of such alterations and decorations shall not
operate or be construed to release Tenant from liability hereunder. Landlord
shall in no event be liable in any way whatsoever for failure or refusal to
re-let the Demised Premises, or, in the event that the Demised Premises are
re-let, for reasonable failure to collect the rent thereof under such
re-letting, and, in no event shall Tenant be entitled to receive any excess of
such net rent collected above the sums payable by Tenant to Landlord hereunder.
Mention in this Lease of any particular remedy shall not preclude Landlord from
any other remedy in law or 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
Landlord obtaining possession of the Demised Premises by reason of the violation
of Tenant of any of the covenants and conditions of this Lease, or otherwise.
26.05. Nothing contained in this Article shall limit or prejudice the
right of Landlord 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. In determining the
fair market rental value of the Demised Premises, the rent realized by any
arms-length re-letting, if re-letting be accomplished by Landlord within such a
reasonable time after the termination of this Lease, shall be deemed prima facie
to be the fair market rental value.
26.06. For the purposes of this Article, any notice required to be given
by Landlord under the provisions of this Article may be given by either Landlord
or by Landlord's managing agent.
26.07. In the event that the Tenant shall fail to make a payment of the
Base Rent or Additional Rent hereby reserved within ten (10) days of the due
date thereof, a late charge equal to four percent (4%) of the unpaid amounts
shall be immediately due and payable to the Landlord.
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ARTICLE XXVII
Covenant of Quiet Enjoyment
27.01. Landlord covenants that upon Tenant's paying the Base Rent and
Additional Rent and other sums due under this Lease and observing and performing
all of the terms, conditions, rules and covenants herein on its part to be
observed and performed, Tenant may peaceably and quietly enjoy the Demised
Premises, subject, nevertheless, to the terms and conditions of this Lease and
to the Ground Lease, and any other leases, mortgages and instruments to which
this lease is subordinate pursuant to the provisions hereof, including any and
all extensions and modifications of all of the foregoing.
ARTICLE XXVIII
Brokerage
28.01. Landlord and Tenant represent to the other that it has dealt with
no broker in connection with this Lease other than Insignia/Edward S. Gordon Co.
of Long Island LLC, (whose commission shall be payable by Landlord) and each
party hereby agrees to indemnify and hold the other harmless of and from any and
all losses, costs, damages or expense (including, without limitation, attorneys'
fees and disbursements) incurred by the indemnified party by reason of any claim
of or liability to any other broker who claims to have dealt with the
indemnifying party in connection with this Lease, which indemnity shall survive
the expiration or earlier termination of this Lease.
ARTICLE XXIX
Estoppel Certificate
29.01. Tenant shall, at any time and from time to time, without cost or
charge, at the request of Landlord, upon not less than five (5) days' notice, if
given in person, or ten (10) days' notice, if given by mail, execute and deliver
to Landlord a certificate evidencing whether or not:
(a) this Lease is in full force and effect (or if there have been
any modifications or amendments hereof, that the same is in full force and
effect as modified or amended, as the case may be, and submitting copies
of such modifications or amendments, if any);
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(b) there are any existing defaults hereunder to the knowledge of
Tenant and specifying the nature of such defaults, if any;
(c) the dates to which the Base Rent and any Additional Rent and
all other charges payable hereunder have been paid;
(d) whether or not, to the best knowledge of Tenant, Landlord is in
default in the performance of any of its obligations under the Lease, and,
if so, specifying each such default of which Tenant may have knowledge;
(e) the commencement and expiration dates of the Lease;
(f) no commission or other payment is due any real estate broker by
Tenant in connection with the leasing of the Demised Premises to Tenant,
and there are no agreements, oral or written, under which any real estate
broker is entitled to any future payment or commission by Tenant; and
(g) Landlord is not required to perform any alterations or other
work to the Demised Premises.
29.02. It is agreed by the parties hereto that the certificate referenced
in Section 29.01 hereof may be relied upon by anyone with whom Landlord may be
dealing.
ARTICLE XXX
Tenant Compliance with Ground Lease
30.01. Tenant covenants that it will not do anything under this Lease
which would be a violation of the Ground Lease. Landlord shall immediately
provide Tenant with a copy of any notice of Tenant's alleged violation of the
Ground Lease sent to Landlord by the landlord or sublessor thereunder, or the
holder of any mortgage then constituting a lien on the leasehold estate under
the Ground Lease.
ARTICLE XXXI
Surrender of Premises
31.01. Upon expiration or other termination of the Term of this Lease,
Tenant shall quit and surrender to Landlord the Demised Premises vacant, broom
clean, in good order and
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condition, normal wear and tear excepted, and Tenant shall remove all its
property therefrom, except as otherwise provided in this Lease. Tenant's
obligation to observe or perform this covenant shall survive the expiration or
other termination of the Term of this Lease. If the last day of the Term of this
Lease fails on a 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 previous business day.
31.02. Tenant acknowledges that possession of the Demised Premises must be
surrendered to Landlord at the expiration or sooner termination of the Term of
this Lease. Tenant agrees to indemnify and save Landlord harmless against all
costs, claims, loss or liability resulting from delay by Tenant in so
surrendering the Demised Premises, including, without limitation, any claims
made by any succeeding tenant founded on such delay. The parties recognize and
agree that the damage to Landlord resulting from any failure by Tenant to timely
surrender possession of the Demised Premises as aforesaid will be extremely
substantial, will exceed the amount of the Base Rent and Additional Rent
theretofore payable hereunder, and will be impossible to accurately measure.
Tenant therefore agrees that if possession of the Demised Premises is not
surrendered to Landlord within 24 hours after the date of the expiration or
sooner termination of the Term of this Lease, then Tenant shall pay to Landlord
for each month and for each portion of any month during which Tenant holds over
in the Demised Premises after the expiration or sooner termination of the Term
of this Lease, a sum equal to two (2) times the aggregate of that portion of the
Base Rent and Additional Rent which was payable under this Lease during the last
month of the term hereof. Nothing contained herein shall be deemed to permit
Tenant to retain possession of the Demised Premises after expiration of the Term
of this Lease and the provisions of this Article shall survive the expiration or
sooner termination of the Term of this Lease.
ARTICLE XXXII
Partial Invalidity
32.01. If any term or provision of this Lease or the application thereof
to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
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ARTICLE XXXIII
No Waivers by Landlord
33.01. Except as otherwise provided in this Lease, no act or thing done by
Landlord or its agents during the term hereof shall constitute an eviction by
Landlord, nor shall be deemed an acceptance of a surrender of the Demised
Premises, and no agreement to accept such surrender shall be valid unless in
writing signed by Landlord. The delivery of keys to an employee of Landlord or
of its agents shall not operate as a termination of this Lease or a surrender of
the Demised Premises.
33.02. The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease,
or to insist upon the strict performance by Tenant or any other tenant, of the
Rules and Regulations annexed hereto or hereafter adopted by Landlord shall not
prevent a subsequent act or omission which would have originally constituted a
violation, from having all the force and effect of an original violation.
33.03. The receipt by Landlord of Base Rent or Additional Rent with
knowledge of breach of any covenant of this Lease shall not be deemed a waiver
of such breach.
33.04. No payment by Tenant or receipt by Landlord of a lesser amount than
the Base Rent and Additional Rent shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without any prejudice to Landlord's right to recover the balance or pursue any
other remedy provided in this Lease.
ARTICLE XXXIV
Waivers by Tenant
34.01. Tenant, for itself, and on behalf of any and all persons claiming
through or under it, including creditors of all kinds, does hereby waive and
surrender all right and privilege which they or any of them might have under or
by reason of any present or future law, to redeem the Demised Premises or to
have a continuance of this Lease for the term hereby demised after having been
dispossessed or ejected therefrom by process of law or after the termination of
this Lease as provided herein.
34.02. Tenant hereby waives the right to trial by jury in any action,
summary proceeding, legal proceeding or counterclaim between or among the
parties hereto or their successors or
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assigns on any matters whatsoever arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant, Tenant's use of or
occupancy of the Demised Premises and any emergency statutory or any other
statutory remedy.
34.03. Supplementing and in furtherance of the provisions of Section
34.02, hereof, Tenant hereby waives the right to interpose a counterclaim of
whatever nature or description in any summary proceeding instituted by Landlord
against Tenant for possession of the Demised Premises or in any action or
proceeding instituted by Landlord for unpaid Base Rent, Additional Rent or other
sums or charges payable by Tenant under this Lease.
34.04. In the event Tenant claims or asserts that Landlord has violated or
failed to perform a covenant of Landlord not to unreasonably withhold or delay
Landlord's consent or approval, or in any case where Landlord's reasonableness
in exercising its judgment is in issue, Tenant's sole remedy shall be an action
for specific performance, declaratory judgment or injunction and in no event
shall Tenant be entitled to terminate this Lease or claim any money damages for
a breach of such covenant, and in no event shall Tenant claim or assert any
claims in any money damages in any action or by way of set off, defense or
counterclaim and Tenant hereby specifically waives the right to any money
damages or other remedies, except as expressly and specifically provided
otherwise in Section 20.09 hereof
ARTICLE XXXV
Exculpation of Landlord
35.01. Notwithstanding anything to the contrary contained herein, Tenant
shall look solely to the interest of Landlord in the Ground Lease, and EAB Plaza
for the satisfaction of any of Tenant's remedies with regard to the payment of
money or otherwise, and no other property or assets of Landlord shall be subject
to levy, execution or other enforcement procedures for the satisfaction of
Tenant's remedies or with respect to this Lease, the relationship of Landlord
and Tenant hereunder or Tenant's use or occupancy of the Demised Premises, such
exculpation of personal liability to be absolute.
ARTICLE XXXVI
Inability to Perform
36.01. Except as otherwise provided herein, this Lease and the obligation
of Tenant to pay Base Rent and Additional Rent hereunder and perform all of the
other covenants and agreements hereunder on part of Tenant to be performed shall
in no wise by affected, impaired or
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excused because Landlord is unable to fulfill any of its obligations under this
Lease or to supply or is delayed in supplying any service expressly or impliedly
to be supplied or is unable to make, or is delayed in making any repair,
additions, alterations or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures if Landlord is prevented or delayed from so
doing by reason of strike or labor troubles or any cause whatsoever including,
but not limited to, governmental pre-exemption in connection with a National
emergency or by reason of any rule, order or regulation of any department or
subdivision thereof of any government agency or by reason of the conditions of
supply and demand which have been or are affected by war or other emergency.
ARTICLE XXXVII
Effect of Conveyance by Landlord
37.01. If Landlord shall validly assign or transfer this Lease and deliver
to Tenant an agreement, in recordable form or a counterpart thereof, executed by
the assignee or transferee whereupon such assignee or transferee agrees to
assume performance of all the covenants to be performed by Landlord from and
after the date of such delivery to Tenant, then Landlord shall be relieved and
discharged from any and all liabilities thereafter accruing under this Lease.
ARTICLE XXXVIII
Notices
38.01. Any notice permitted or required to be given by the terms of this
Lease, or by any law or governmental regulation, shall be in writing. Unless
otherwise required by such law or regulation, such notice shall be given, and
shall be deemed to have been served and given (i) the date of hand delivery with
receipt acknowledged, or (ii) one (1) day after delivery to a reputable
overnight courier, addressed to Landlord or Tenant at the Demised Premises. All
notices to Landlord shall also be addressed to The Galbreath Company at EAB
Plaza or its successor as Managing Agent of EAB Plaza. A copy of all notices
sent to Landlord shall also be sent to ABN AMRO Bank, N.V. Special Credits Legal
Department, Ten East 53rd Street, New York, New York 10022. All notices to
Tenant shall also be addressed to O'Sullivan Graev & Karabell, 30 Rockefeller
Plaza, 41st Floor, New York, NY 10112, Attn: Lawrence Graev, Esq. and to Tenant
at 565 Broad Hollow Road, Farmingdale, New York 11735, Attn: Shawn Smith, Esq.
Either party may, by notice as aforesaid designate a different address or
addresses for notices, requests or demands to it.
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ARTICLE XXXIX
Successors and Assigns
39.01. The covenants, conditions and agreements contained in this Lease
shall bind and inure to the benefit of the parties hereto and their respective
heirs, distributees, executors, administrators, successors and, except as
provided herein, their assigns.
ARTICLE XL
Entire Agreement; No Modification
40.01. All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully and completely
expresses the agreement between Landlord and Tenant and any executory agreement
hereafter made shall be ineffective to change, modify, waive, release,
terminate, discharge, extend, renew 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, waiver, release,
termination, extension, renewal, discharge or abandonment is sought.
ARTICLE XLI
Arbitration
41.01. Either party to this Lease may elect, in the manner hereinafter
provided, to have any dispute determinable by arbitration pursuant to the
provisions of this Lease submitted to arbitration. Such election shall be
exercised by either party giving the other party a notice requesting such
arbitration, which notice shall specify the nature of the dispute and the
identity of the arbitrator chosen by said party.
41.02. Within fifteen (15) days after the service of the notice specified
in Section 41.01 hereof the other party shall give written notice to the first
party specifying the identity of its arbitrator. If the second party fails to
notify the first party of the appointment of its arbitrator within said period,
the appointment of the second arbitrator shall be made in the same manner as
hereinafter provided for the appointment of a third arbitrator. The arbitrators
so chosen shall meet within ten (10) days after the second arbitrator is
appointed and, if within thirty (30) days after the second arbitrator is
appointed, the said two arbitrators shall not agree upon the question in
dispute, they shall themselves appoint a third arbitrator who shall be a
competent and impartial person; and in the event of their being unable to agree
upon such appointment within ten (10)
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days after the time aforesaid, the third arbitrator shall be selected by the
parties themselves if they can agree thereon within a further period of fifteen
(15) days. If the parties do not so agree, then either party, on behalf of both,
may request such appointment by the American Arbitration Association in
accordance with its rules then prevailing. The decision of the arbitrators so
chosen shall be given within a period of sixty (60) days after the appointment
of such third arbitrator. The decision in which any two arbitrators so appointed
and acting hereunder concur shall be so appointed and acting hereunder concur
shall be binding upon the parties. Each party shall pay the fees and expenses of
the arbitrator appointed by such party, or in whose stead as above provided,
such arbitrator was appointed, and the fees and expenses of the third
arbitrator, if any, shall be borne equally by both parties. The arbitration
shall be conducted by, pursuant to, and under the auspices of the American
Arbitration Association and shall take place in Nassau County, New York.
ARTICLE XLII
Miscellaneous
42.01. Tenant shall not at any time prior to or during the Term of this
Lease, either directly or indirectly, use any contractors, laborers or materials
the use of which would create any conflicts with other contractors and/or
laborers employed by Tenant or Landlord in the construction, maintenance or
operation of the Demised Premises or EAB Plaza.
42.02. This Lease supersedes all prior leases between Landlord and Tenant
with respect to any of the space included within the Demised Premises.
42.03. This Lease is offered to Tenant for signature with the
understanding that it shall not be binding upon Landlord unless and until
Landlord shall have executed and delivered a fully executed copy of this Lease
to Tenant.
42.04. Tenant shall promptly send to Landlord copies of all of Tenant's
10Q and 10K statements promptly after same are available to the public.
ARTICLE XLIII
Captions/Recording
43.01. The captions of Articles in this Lease are inserted only as a
matter of convenience and for reference and they in no way define, limit or
describe the scope of this Lease or the intent of any provisions hereof.
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43.02. Tenant shall not record this Lease without the prior written
consent of Landlord. Landlord shall have the right at any time to record this
Lease. Tenant, upon request by Landlord shall join in the execution of a
memorandum of this Lease which memorandum may be recorded by Landlord.
ARTICLE XLIV
Intentionally Omitted
ARTICLE XLV
First Right to Lease
45.01. At any time during the Term of this Lease, should any space
("Expansion Space") presently occupied by Superior Bank FSB or Davidoff &
Malito, P.C. (as shown on Exhibit G annexed hereto) become available for lease,
Landlord, before offering the Expansion Space to any other party, subject to the
rights now existing of any other Tenant or subtenant at EAB Plaza, shall advise
Tenant of such availability ("Landlord's Notice"). Tenant, upon notice (the
"Expansion Notice") given to Landlord no later than ten (10) business days
subsequent to Tenant's receipt of Landlord's Notice shall have the right to
lease from Landlord all, or any portion reasonably approved by Landlord, of the
Expansion Space. The Expansion Space shall be deemed to be part of the Demised
Premises hereunder and shall be subject to the terms of this Lease (including
without limitation the base years under Articles VI, VII, VIII and IX) except
that the free rent period referred to in Section 5.02 and Landlord's
Contribution for Tenant's Work described in Article XLVI shall be pro-rated for
the balance of the Term of this Lease pursuant to the following formula: one (1)
month free rent for each Lease Year remaining in the Initial Term of the Lease,
and the sum of $13,236.87 for each full month remaining in the Initial Term of
the Lease, and additional reserved parking spaces will be provided on a
proportionate basis based on the rentable square footage of the Expansion Space.
Should Tenant fail timely to give the Expansion Notice to Landlord, or having
timely given said Notice, should Tenant through no fault of Landlord or for
reasons beyond the reasonable control of Tenant fail to execute an amendment to
this Lease within ten (10) business days of its receipt thereof from Landlord,
Tenant shall have no further rights to the Expansion Space and Landlord shall
thereafter be free to lease said Expansion Space upon such terms as it shall
deem appropriate.
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ARTICLE XLVI
Landlord's Contribution for Tenant's Work
46.01. Provided that Tenant shall not then be in default under the terms
of this Lease, Tenant shall be entitled to an allowance from Landlord in the sum
of $1,204,555 for the actual costs and expenses of certain improvements (the
"Improvements") to be made to the Demised Premises.
46.02. For the purposes of this Article, "Improvements" shall mean the
construction of any structural renovations and fixtures to be installed in the
Demised Premises approved by Landlord which have a "useful life", as defined in
accordance with generally accepted accounting principles, of greater than three
years. The "actual costs and expenses" of the Improvements shall mean the costs
and expenses of supplying goods, services, materials and labor for the
construction of the Improvements, including, without limitation, architect's and
engineer's fees and costs of acquiring building permits, but shall not include
fees of attorneys or consultants.
46.03. The Improvements shall not include movable office furniture or
equipment or personal property including, without limitation, safes, murals,
antiques, rugs, carpets, lighting fixtures or art work of any kind.
46.04. Landlord's obligation to make any payments under Section 46.01
shall be expressly conditioned upon Tenant providing evidence reasonably
acceptable to Landlord that the actual costs and expenses of the Improvements
have been (i) incurred and paid by Tenant, and that Tenant is seeking
reimbursement therefor, or (ii) incurred and are payable by Tenant under valid
contracts pursuant to which Improvements have been or are to be constructed, and
that Tenant is seeking direct payment therefor to a third party. The requisition
shall be accompanied by invoices from Tenant's subcontractors and vendors
specifying in reasonable detail the materials furnished, the cost thereof, and
the nature of the work installation performed, the cost thereof, as well as by
certificates from Tenant's architect and general contractor certifying that the
portion of the work concerning which payment has been requested has been
performed in accordance with plans and specifications approved by Landlord, has
been accomplished in a good workmanlike manner, complies with all applicable
municipal codes, and that all required certificates, approvals, and permits have
been issued and remain in effect with respect to said portion of the work,
copies of said permits to accompany said requisitions. Said requisitions shall
also be accompanied by any bonds, waivers of lien or other documentation
reasonably requested by Landlord. Landlord shall not be required to pay Tenant
any sums held back by Tenant from any subcontractor until such time as Tenant
shall have determined to release any such retainage and shall have submitted an
appropriate requisition to Landlord in connection therewith. Under no
circumstances shall Landlord be obligated to make any payments under this
Article unless and until Landlord has
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received evidence reasonably acceptable to Landlord that the applicable goods,
services, materials and/or labor for which such payments has been requisitioned
have been supplied or performed, as the case may be. Tenant shall not
requisition payment from Landlord under this Article more often than monthly.
46.05. In the event that it is determined that any payments made by
Landlord under this Article shall not have been applied for the purposes
intended hereunder, in addition to any other remedies available to Landlord
under this Lease and applicable law, Tenant shall be required to immediately
reimburse Landlord for all such sums, failing which Tenant shall be in default
under this Lease, and Landlord, after such default, shall not be required to
make any further payments under this Article.
ARTICLE XLVII
Renewal Option/Rent Upon Renewal
47.01. Provided that (i) this Lease is in full force and effect, (ii)
Tenant shall not then be in default pursuant to the terms of the Lease beyond
any applicable cure period, and (iii) Tenant shall be in possession of the
entire Demised Premises, Tenant shall have the right to renew this Lease for a
renewal term (the "Renewal Term") of five (5) years, commencing on the first day
after the Expiration Date and ending at midnight on the date which is five (5)
years thereafter (the "Renewal Term Expiration Date") (or until such term shall
sooner cease and expire as hereinafter provided), by giving to Landlord written
notice of its election to so exercise said option to renew no later than one (1)
year prior to the Expiration Date, and further provided, that such Renewal Term
shall be upon the same terms, provisions, covenants, and conditions as are
contained in this Lease, except as for the duration of the term hereof, the
rental rate and such provisions in this Lease which by its terms are only
applicable to the initial Term of the Lease.
47.02. The rent during the Renewal Term shall be a sum equal to the fair
market annual rental value for the Demised Premises. Fair market annual rental
value of the Demised Premises shall be such amount as Landlord and Tenant shall
agree. Notwithstanding the above, with respect to the Renewal Term, in the event
the parties fail to reach an agreement as to the fair market annual rental of
the Demised Premises to be paid by the Tenant during the Renewal Term within
sixty (60) days after the Tenant delivers written notice to the Landlord of
Tenant's election to exercise its option to renew, such amount shall be
determined by appraisers, appointed and who shall qualify and act as provided in
subsections (i) - (iv) hereof. Pending the determination of such appraisers
during the Renewal Term, Tenant shall pay the same Base Rent and Additional Rent
as that during the period immediately preceding the commencement of the Renewal
Term, with appropriate adjustments made between the
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parties when the Base Rent for the applicable Renewal Term has been determined
by the appraisers.
(i) Landlord and Tenant each shall appoint an appraiser within
ten (10) days after either of them shall have requested an
appraisal. If either Landlord or Tenant shall have failed to do so
within a period of five (5) days after the date of the notice from
the other party requesting same, then upon the request of either
Landlord or Tenant, as the case may be, such other appraiser shall
be appointed by a Justice of the Supreme Court of the State of New
York, Nassau County, or any successor court;
(ii) The two (2) appraisers appointed as above provided shall
select a third appraiser and if they fail to do so within ten (10)
days after their appointment, such third appraiser shall be
appointed as above provided for the appointment of an appraiser
where either party has failed to do so;
(iii) Each appraiser shall be a person with at least ten (10)
years experience in appraising real estate, or in acting as a real
estate broker in the County of Nassau, and who is a member in good
standing of the American Institute of Real Estate Appraisers or its
successors or of a like body if such institute is not in existence
and has no successor and whose appraisals are generally acceptable
to institutional lenders;
(iv) The three (3) appraisers selected as aforesaid shall
convene and commence hearings within ten (10) days after the
appointment of the third appraiser and shall proceed to conclude
such hearings within a reasonable time thereafter. The decision of
such appraisers shall be in writing and made within ten (10) days
after the final hearing unless extended by agreement between
Landlord and Tenant and the vote of the majority of them shall be
the decision of all and binding upon Landlord and Tenant. Duplicate
original counterparts of the decision shall be sent to both Landlord
and Tenant. Landlord and Tenant each shall pay for the expenses and
fees of their respective attorneys and of the appraiser appointed by
or on behalf of each of them. All other expenses of the appraisal
shall be borne by Landlord and Tenant equally.
47.03. In determining the fair market annual rental value of the Demised
Premises pursuant to this Article, the appraisers shall take into consideration
as appropriate all of the
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following: (i) the Landlord and Tenant are well informed and well advised and
each is acting in what it considers its own best interest; (ii) a reasonable
time under then existing market conditions is allowed for exposure of the
Demised Premises on the open market; (iii) the rent is affected by any and all
concessions and costs of credits in connection with the leasing transaction
typically extended in conjunction with renewals; (iv) the Demised Premises are
fit for immediate occupancy and use "as is" and require no additional work by
Landlord; (v) market rents then being charged for comparable space in other
similar office buildings in the same area; (vi) expense stops and operating
expenses and taxes. The appraisers shall consider all testimony and documentary
evidence which may be presented at the hearing. Landlord and Tenant shall have
the right to be represented by counsel and to cross-examine the witnesses. In no
event shall said determination include any amount for leasehold improvements or
free rent in excess of that which are then being allowed to existing tenants in
spaces of similar condition.
47.04. Wherever the word "Term" or "term" is used in this Lease, it shall
be deemed to include the Renewal Term if the sense of such use shall be
appropriate.
47.05. The exercise by the Tenant of the renewal option granted by this
Article shall be deemed irrevocable and not subject to withdrawal.
47.06. Notwithstanding anything to the contrary contained in this Lease,
should Tenant elect to exercise the option set forth in this Article XLVII, the
Base Tax Amount, the applicable average utility rate referred to in Section
7.04(a), and the Base Year Expenses shall remain unchanged.
COLISEUM TOWERS ASSOCIATES, Landlord
By: COLISEUM PLAZA ASSOCIATES
general partner
By: COLISEUM PLAZA, INC.
general partner
By: ___________________________
Steven D. Mezick, Assistant Secretary
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<PAGE>
By: EAB PLAZA, INC.
general partner
By:
----------------------------
Iain Aitken, Senior Vice President
DEL LABORATORIES, INC., Tenant
By: /s/ Dan K. Wassong
----------------------------
Name: Dan K. Wassong
Title: Chairman of the Board,
President and Chief Executive
Officer
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<PAGE>
THIS INSTRUMENT PREPARED BY,
AND AFTER RECORDING RETURN TO:
Lindquist & Vennum, P.L.L.P. (MSM)
4200 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
SATISFACTION: The indebtedness secured
by this Deed of Trust has been satisfied in full.
By
Name
Title
Date
Title Insurance issued in connection herewith:
Policy No.
Company
PURCHASE MONEY
DEED OF TRUST
COLLATERAL IS OR INCLUDES FIXTURES DEED OF TRUST
THIS DEED OF TRUST ("Deed of Trust"), made as of May 15, 1997, is made
and executed by Del Laboratories, Inc., a Delaware corporation, having its
principal offices at 565 Broad Hollow Road, Farmingdale, NY 11735
("Grantor"), to The Fidelity Company, c/o Dennis W. McNames, P.O. Drawer 84,
Winston-Salem, North Carolina 27102 ("Trustee"), and to Carver Boat
Corporation, having an office at 100 South Fifth Street, Suite 2400,
Minneapolis, MN 55402 ("Lender").
RECITALS
I. Lender has sold to Grantor certain property defined herein as the
"Trust Property" and as part of such sale has agreed to make a purchase money
loan to Grantor and extend other financial accommodations to Grantor in an
aggregate principal amount of $5,225,000.00 (collectively, the "Loan"). The Loan
is a purchase money loan and except for advances allowed hereunder the
outstanding principal balance at no time shall exceed $5,225,000.00. The Loan is
evidenced by a certain Purchase Money Promissory Note of even date herewith (the
"Note"),
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made by Grantor. The terms and provisions of the Note are hereby incorporated by
reference in this Deed of Trust.
II. The interest rate chargeable on the Loan prior to default and
subsequent to default shall be as set forth in the Note. The final maturity date
of the Loan is May 15, 2000, as provided for in the Note.
GRANTING CLAUSES
To secure the payment of (a) the indebtedness evidenced by the Note and
the payment of all amounts due under and the performance and observance of all
covenants end conditions contained in this Deed of Trust, the Note, any and all
other mortgages, security agreements, assignments of leases and rents,
guaranties, letters of credit and any other documents and instruments now or
hereafter executed by Grantor or any party related thereto or affiliated
therewith to evidence, secure or guarantee the payment of all or any portion of
the indebtedness under the Note and any and all renewals, extensions, amendments
and replacements of this Deed of Trust, the Note and any such other documents
and instruments (the Note, this Deed of Trust, such other mortgages, security
agreements, assignments of leases and rents, guaranties, letters of credit, and
any other documents and instruments now or hereafter executed and delivered in
connection with the Loan, and any and all amendments, renewals, extensions and
replacements hereof and thereof, being sometimes referred to collectively as the
"Loan Instruments" and individually as a "Loan Instrument"), and (b) payment of
all sums advanced by Lender to protect the Trust Property (hereinafter defined),
(all indebtedness and liabilities secured hereby being hereinafter sometimes
referred to as "Borrower's Liabilities" which indebtedness and liabilities being
secured hereby shall, in no event, exceed five times the aggregate face amount
of the Note), Grantor does hereby convey, mortgage, warrant, assign, transfer,
pledge and deliver to Lender the following described property subject to the
terms and conditions herein:
(A) The land located in Pender County, North Carolina, legally described
on the attached Exhibit A ("Land");
(B) All the buildings, structures, improvements and fixtures of every kind
or nature now or hereafter situated on the Land and all machinery, appliances,
equipment, furniture and all other personal property of every kind or nature
which constitute fixtures with respect to the Land, together will all
extensions, additions, improvements, substitutions and replacements of the
foregoing but excluding any personal property, equipment or machinery installed
or affixed by Grantor which are not fixtures ("Improvements");
(C) All easements, tenements, rights-of-way, vaults, gores of land,
streets, ways, alleys, passages, sewer rights, water courses, water rights and
powers and appurtenances in any way belonging, relating or appertaining to any
of the Land or Improvements, or which hereafter shall in any way belong, relate
or be appurtenant thereto, whether now owned or hereafter acquired
("Appurtenances");
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(D) (i) All judgments, insurance proceeds, awards of damages and
settlements which may result from any damage to all or any portion of the Land,
Improvements or Appurtenances or any part thereof or to any rights appurtenant
thereto;
(ii) All compensation, awards, damages, claims, rights of action and
proceeds of or on account of (a) any damage or taking, pursuant to the power of
eminent domain, of the Land, Improvements or Appurtenances or any part thereof,
(b) damage to all or any portion of the Land, Improvements or Appurtenances by
reason of the taking, pursuant to the power of eminent domain, of all or any
portion of the Land, Improvements, Appurtenances or of other property, or (c)
the alteration of the grade of any street or highway on or about the Land,
Improvements, Appurtenances or any part thereof, and, except as otherwise
provided herein, Lender is hereby authorized to collect and receive said awards
and proceeds and to give proper receipts and acquittances therefor and, except
as otherwise provided herein, to apply the same toward the payment of the
indebtedness and other sums secured hereby; and
(iii) All proceeds, products, replacements, additions,
substitutions, renewals and accessions of and to the Land, Improvements or
Appurtenances;
(E) All rents, issues, profits, income and other benefits now or hereafter
arising from or in respect of the Land, Improvements or Appurtenances (the
"Rents") ; it being intended that this Granting Clause shall constitute an
absolute and present assignment of the Rents, subject, however, to the
conditional permission given to Grantor to collect and use the Rents as provided
in this Deed of Trust;
(F) Any and all leases, licenses and other occupancy agreements now or
hereafter affecting the Land, Improvements or Appurtenances, together with all
security therefor and guaranties thereof and all monies payable thereunder
(collectively, the "Leases"), subject, however, to the conditional permission
given in this Deed of Trust to Grantor to collect the Rents arising under the
Leases as provided in this Deed of Trust;
(G) Any and all after-acquired right, title or interest of Grantor in and
to any of the property described in the preceding Granting Clauses; and
(H) The proceeds from the sale, transfer, pledge or other disposition of
any or all of the property described in the preceding Granting Clauses;
TO HAVE AND TO HOLD, the Trust Property and all estate therein, together
with all the rights, privileges and appurtenances thereunder in any way
incident, appertaining or belonging, the same unto the Trustee and his successor
or successors forever, and Grantor hereby binds itself, its successors and
assigns to warrant and forever defend title to the Trust Property unto the
Trustee and his successor or successors, against every person whomsoever
lawfully claiming or to claim the same or any part thereof to secure the
indebtedness herein recited and upon this special trust: that should the
indebtedness secured hereby be paid according to the tenor and effect
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<PAGE>
thereof when the same shall be due and payable and should the Grantor timely and
fully discharge its obligations hereunder, the Trust Property shall be
reconveyed to the Grantor or the title thereto shall be revested according to
the provisions of law.
All of the mortgaged property described in the Granting Clauses, together
with all real and personal, tangible and intangible property pledged in, or to
which a security interest attaches pursuant to, any of the Loan Instruments is
sometimes referred to collectively as the "Trust Property." The Rents and Leases
are pledged on a parity with the Land and Improvements and not secondarily.
ARTICLE ONE
COVENANTS OF GRANTOR
Grantor covenants and agrees with Lender as follows:
1.01 Performance under Note, Deed of Trust and Other Loan Instruments.
Grantor shall perform, observe and comply with or cause to be performed,
observed and complied with in a complete and timely manner all provisions
hereof, of the Note, every other Loan Instrument and every instrument evidencing
or securing Borrower's Liabilities and will promptly pay or cause to be paid to
Lender when due the principal with interest thereon and all other sums required
to be paid by Grantor pursuant to the Note, this Deed of Trust, every other Loan
Instrument and every other instrument evidencing or securing Borrower's
Liabilities.
1.02 General Covenants and Representations. Grantor covenants, represents
and warrants that as of the date hereof and at all times thereafter during the
term hereof: (a) Grantor is seized of an indefeasible estate in fee simple in
that portion of the Trust Property which is real property, and has good and
absolute title to it and the balance of the Trust Property free and clear of all
liens, security interests, charges and encumbrances whatsoever except those
shown on Exhibit B attached hereto and made a part hereof, if any (such liens,
security interests, charges and encumbrances being hereinafter referred to as
the "Permitted Encumbrances"); (b) Grantor has good right, full power and lawful
authority to mortgage and pledge the Trust Property as provided herein; (c) upon
the occurrence of an Event of Default (hereinafter defined), Lender may, subject
to Lender's compliance with applicable statutory requirements, at all times
peaceably and quietly enter upon, hold, occupy and enjoy the Trust Property in
accordance with the terms hereof; and (d) Grantor will maintain and preserve the
lien of this Deed of Trust as a first and paramount lien on the Trust Property
subject only to the Permitted Encumbrances until Borrower's Liabilities have
been paid in full.
1.03 Compliance with Laws and other Restrictions. Grantor covenants and
represents that the Land and the Improvements and the use thereof presently
comply with, and will during the full term of this Deed of Trust continue to
comply with, all applicable restrictive
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<PAGE>
covenants, zoning and subdivision ordinances and building codes, licenses,
health and environmental laws and regulations and all other applicable laws,
ordinances, rules and regulations. If any federal, state or other governmental
body or any court issues any notice or order to the effect that the Trust
Property or any part thereof is not in compliance with any such covenant,
ordinance, code, law or regulation, Grantor will promptly provide Lender with a
copy of such notice or order and will immediately commence and diligently
perform all such actions as are necessary to comply therewith or otherwise
correct such noncompliance. Grantor shall not, without the prior written consent
of Lender, petition for or otherwise seek any change in the zoning ordinances or
other public or private restrictions; applicable to the Trust Property on the
date hereof.
1.04 Taxes and other charges.
1.04.1 Taxes and Assessments. Grantor shall pay promptly when due all
taxes, assessments, rates, dues, charges, fees, levies, fines, impositions,
liabilities, obligations, liens and encumbrances of every kind and nature
whatsoever now or hereafter imposed, levied or assessed upon or against the
Trust Property or any part thereof, or upon or against this Deed of Trust or
Borrower's Liabilities or upon or against the interest of Lender in the Trust
Property, as well as all taxes, assessments and other governmental charges
levied and imposed by the United States of America or any state, county,
municipality or other taxing authority upon or in respect of the Trust Property
or any part thereof; provided, however, that Grantor may in good faith contest
the validity, applicability or amount of any asserted tax, assessment or other
charge provided Grantor satisfies all legal requirements pertaining to such
contests.
1.04.2 Taxes Affecting Lender's Interest. If any state, federal, municipal
or other governmental law, order, rule or regulation, which becomes effective
subsequent to the date hereof, in any manner changes or modifies existing laws
governing the taxation of mortgages or debts secured by mortgages, or the manner
of collecting taxes, so as to impose on Lender a tax by reason of its ownership
of any or all of the Loan Instruments or measured by the principal amount of the
Note, requires or has the practical effect of requiring Lender to pay any
portion of the real estate taxes levied in respect of the Trust Property to pay
any tax levied in whole or in part in substitution for real estate taxes or
otherwise affects materially and adversely the rights of Lender in respect of
the Note, this Deed of Trust or the other Loan Instruments, Borrower's
Liabilities and all interest accrued thereon shall, upon thirty (30) days'
notice, become due and payable forthwith at the option of Lender, whether or not
there shall have occurred an Event of Default; provided, however, that, if
Grantor may, without violating or causing a violation of such law, order, rule
or regulation, pay such taxes or other sums as are necessary to eliminate such
adverse effect upon the rights of Lender and does pay such taxes or other sums
when due, Lender may not elect to declare due Borrower's Liabilities by reason
of the provisions of this Section 1.04.2.
1.04.3 Tax Escrow. Following the occurrence of any Event of Default
hereunder pertaining to the payment of the Note or other payment obligations,
without limitation of any other right or remedy in favor of Lender, Grantor
shall, in order to secure the performance and
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<PAGE>
discharge of Grantor's obligations under this Section 1.04, but not in lieu of
such obligations, deposit with Lender on the first day of each calendar month
throughout the term of the Loan, deposits, in amounts set by Lender from time to
time by written notice to Grantor, in order to accumulate funds sufficient to
permit Lender to pay all annual ad valorem taxes, assessments and charges of the
nature described in Section 1.04.1 at least thirty (30) days prior to the date
or dates on which they shall become delinquent. The taxes, assessments and
charges for purposes of this Section 1.04.3 shall, if Lender so elects, include,
without limitation, water and sewer rents. Grantor shall procure and deliver to
Lender when issued all statements or bills for such obligations. Upon demand by
Lender, Grantor shall deliver to Lender such additional monies as are required
to satisfy any deficiencies in the amounts necessary to enable Lender to pay
such taxes, assessments and similar charges thirty (30) days prior to the date
they become delinquent. Lender shall pay such taxes, assessments and other
charges as they become due to the extent of the funds on deposit with Lender
from time to time and provided Grantor has delivered to Lender the statements or
bills therefor. In making any such payments, Lender shall be entitled to rely on
any bill issued in respect of any such taxes, assessments or charges without
inquiry into the validity, propriety or amount thereof and whether delivered to
Lender by Grantor or otherwise obtained by Lender. Any deposits received
pursuant to this Section 1.04.3 shall be deposited in a segregated,
interest-bearing account insured by the FDIC and, provided no Event of Default
exists, the deposits shall be used to pay the tax obligations for the Trust
Property when due. If any Event of Default occurs, any part or all of the
amounts then on deposit or thereafter deposited with Lender under this Section
1.04.3 may at Lender's option be applied to payment of Borrower's Liabilities in
such order as Lender may determine.
1.04.4 No Credit Against the Indebtedness Secured Hereby. Grantor shall
not claim, demand or be entitled to receive any credit against the principal or
interest payable under the terms of the Note or on any of Borrower's Liabilities
for any of the taxes, assessments or similar impositions assessed against the
Trust Property or any part thereto or that are applicable to Borrower's
Liabilities or to Lender's interest in the Trust Property.
1.05 Mechanic's and other Liens. Grantor shall not permit or suffer any
mechanic's, laborer's, materialman's, statutory or other lien or encumbrance
(other than any lien for taxes and assessments not yet due) to be created upon
or against the Trust Property, provided, however, that Grantor may in good
faith, by appropriate proceeding, contest the validity, applicability or amount
of any asserted lien and, pending such contest, Grantor shall not be deemed to
be in default hereunder if Grantor shall first either obtain an endorsement, in
form and substance satisfactory to Lender, to the loan policy of title insurance
issued to Lender insuring the lien of this Deed of Trust, insuring over such
lien or provide a bond or other security reasonably satisfactory to Lender in an
amount not less than 125% of the amount of the disputed lien or encumbrance.
Grantor shall pay the disputed amount and all interest and penalties due in
respect thereof on or before the date any adjudication of the validity or amount
thereof becomes final and, in any event, no less than thirty (30) days prior to
any foreclosure sale of the Trust Property or the exercise of any other remedy
by such claimant against the Trust Property.
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1.06 Insurance and Condemnation.
1.06.1 Hazard Insurance. Grantor shall, at its sole expense, obtain for,
deliver to, assign to and maintain for the benefit of Lender, until Borrower's
Liabilities are paid in full, policies of hazard insurance from an insurer
having a Best's rating of at least "A" in an amount which shall be not less than
100% of the full insurable replacement cost of the Trust Property (other than
the Land) insuring, on a replacement cost basis, the Trust Property against loss
or damage on a "special cause of loss" form for all risks to include but not
limited to such insurable hazards, casualties and contingencies as are included
therein and otherwise as Lender may require, including without limitation fire,
windstorm, rainstorm, lightening, vandalism, earthquake and, if all or any part
of the Trust Property shall at any time be located within an area identified by
the government of the United States or any agency thereof as having special
flood hazards and for which flood insurance is available, flood. Grantor shall
pay promptly when due any premiums on such insurance policies and on any
renewals thereof. The form of such policies and the companies issuing them shall
be acceptable to Lender. If any such policy shall contain a coinsurance clause
it shall also contain an agreed amount or stipulated value endorsement. All such
policies and renewals thereof shall be held by Lender and shall contain a
"Lender's loss payable" clause making losses payable to Lender and Grantor as
their interests may appear. Losses shall not be payable to any other party
without Lender's prior written consent. In the event of loss, Grantor will give
immediate written notice to Lender and Lender may make proof of loss if not made
promptly by Grantor (for which purpose Grantor hereby irrevocably appoints
Lender as its attorney-in-fact). In the event of the foreclosure of this Deed of
Trust or any other transfer of title to the Trust Property in full or partial
satisfaction of Borrower's Liabilities, all right, title and interest of Grantor
in and to all insurance policies and renewals thereof then in force shall pass
to the purchaser or grantee. All such policies shall provide that they shall not
be modified, canceled or terminated without at least thirty (30) days' prior
written notice to Lender from the insurer.
1.06.2 Other Insurance. Grantor shall, at its sole expense, obtain and
maintain from an insurer having a Best's Rating of at least "A", commercial
general public liability insurance (including product liability, completed
operations, contractual liability, broad form property damage and personal
injuries, including death resulting therefrom) and with single limit coverage
for personal and bodily injury and property damage of at least $3,000,000.00 for
each occurrence, showing Lender to be an additional insured thereon.
Additionally, Grantor shall, at its sole expense, obtain for, deliver to, assign
to and maintain for the benefit of, Lender, until Borrower's Liabilities are
paid in full, such other policies of insurance as may be reasonably required by
the Lender.
1.06.3 Adjustment of Loss. Lender is hereby authorized and empowered, at
its option, to adjust or compromise any loss under any insurance policies
covering the Trust Property and to collect and receive the proceeds from any
such policy or policies (and deposit such proceeds as provided in Section
1.06.5). Each insurance company is hereby authorized and directed to make
payment of 100% of all such losses directly to Lender alone. Lender shall apply
the insurance proceeds it receives in the manner provided in Section 1.06.5.
Lender may, at its option by notice
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in writing delivered to Grantor, direct Grantor to take the required action to
adjust and settle any loss under any insurance policies and to collect the
insurance proceeds payable as a result of such loss for the benefit of the
Lender and the Trust Property. In such case, Grantor shall use its best efforts
to collect the maximum amount of insurance proceeds possible and shall keep
Lender fully apprised in writing of the status of its efforts. Lender's
direction to Grantor to undertake the collection of insurance proceeds resulting
from a loss shall not prevent or prohibit Lender from participating in such
action or effort, and provided no Event of Default exists hereunder, any
participation by Lender shall be at Lender's expense. Lender shall not be
responsible for any failure to collect any insurance proceeds due under the
terms of any policy regardless of the cause of such failure.
1.06.4 Condemnation Awards. Lender shall be entitled to all compensation,
awards, damages, claims, rights of action and proceeds of, or on account of, (i)
any damage or taking, pursuant to the power of eminent domain, of the Trust
Property or any part thereof, (ii) damage to the Trust Property by reason of the
taking, pursuant to the power of eminent domain, of other property, or (iii) the
alteration of the grade of any street or highway on or about the Trust Property.
Lender is hereby authorized, at its option, to commence, appear in and prosecute
in its own or Grantor's name any action or proceeding relating to any such
compensation, awards, damages, claims, rights of action and proceeds and to
settle or compromise any claim in connection therewith. Lender after deducting
from such compensation, awards, damages, claims, rights of action and proceeds
all, its expenses, including attorneys' fees, may apply such net proceeds
(except as otherwise provided in Section 1.06.5 of this Deed of Trust) to
payment of Borrower's Liabilities in such order and manner as Lender may elect.
Grantor agrees to execute such further assignments of any compensation awards,
damages, claims, rights of action and proceeds as Lender may require.
1.06.5 Repair; Proceeds of Casualty Insurance and Eminent Domain. If all
or any part of the Trust Property shall be damaged or destroyed by fire or other
casualty or shall be damaged or taken through the exercise of the power of
eminent domain or other cause described in Section 1.06.4, the entire amount of
such proceeds, award or compensation shall be applied to Borrower's Liabilities
in such order and manner as Lender may elect. Notwithstanding the foregoing,
provided Grantor is not in default hereunder on the date of casualty or taking,
subject to Section 1.06.3 hereof, such proceeds, award or other compensation
shall be made available to Grantor on the terms and conditions set forth in this
Section 1.06.5, for the purpose of financing the cost of restoration or repair
with any excess to be applied to Borrower's Liabilities. If the amount of
proceeds to be made available to Grantor for restoration or repair of the Trust
Property pursuant to the Note is less than the cost of the restoration or repair
as estimated by Lender at any time prior to completion thereof, Grantor shall
cause to be deposited with Lender the amount of such deficiency within thirty
(30) days of Lender's written request therefor (but in no event later than the
commencement of the work) and Grantor's deposited funds shall be disbursed prior
to any such insurance proceeds. If Grantor is required to deposit funds under
this Section 1.06.5, the deposit of such funds shall be a condition precedent to
Lender's obligation to disburse any insurance proceeds held by Lender hereunder.
Without limitation of Lender's rights
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hereunder, it shall be an additional condition precedent to any disbursement of
insurance proceeds held by Lender hereunder that Lender shall have approved all
plans and specifications for any proposed repair or restoration. Lender's
approval to Grantor's plans and specifications shall not be unreasonably
withheld but in all events the improvements proposed by the Grantor's plans and
specifications (i) may not diminish the value of the Trust Property from the
value of the Trust Property immediately prior the loss or taking and (ii) may
not in any material manner change the use of the Trust Property from that
existing immediately prior to the loss or taking. The amount of proceeds, award
or compensation which is to be made available to Grantor, together with any
deposits made by Grantor hereunder, shall be held by Lender in a segregated
construction disbursement account to be disbursed from time to time to pay the
cost of repair or restoration either, at Lender's option, to Grantor or directly
to contractors, subcontractors, material suppliers and other persons entitled to
payment in accordance with and subject to such conditions to disbursement as
Lender may impose to assure that the work is fully completed in a good and
workmanlike manner and paid for and that no liens or claims arise by reason
thereof. Lender shall not be obligated to pay interest in respect of any such
funds held by it nor shall Grantor be entitled to a credit against any of
Borrower's Liabilities except and to the extent the funds are applied thereto
pursuant to this Section 1.06.5. Notwithstanding any other provision of this
Section 1.06.5, if an Event of Default exists at the time of such casualty,
taking or other event pertaining to (i) payment of the Note; (ii) other payment
obligations of Grantor hereunder or under the Loan Instruments or (iii)
obligations of Grantor hereunder which immediately threaten or impair in any
material manner the continued use of the Trust Property (collectively, a
"Primary Default"), or if a Primary Default occurs thereafter, Lender shall have
the right to immediately apply all insurance proceeds, awards or compensation to
the payment of Borrower's Liabilities in such order and manner as Lender may
determine. Lender shall have the right at all times to apply such net proceeds
to the cure of any Primary Default.
1.06.6 Renewal of Policies. At least thirty (30) days prior to the
expiration date of any policy evidencing insurance required under this Section
1.06, a renewal thereof satisfactory to Lender shall be delivered to Lender or
substitution therefor, together with receipts or other evidence of the payment
of any premiums then due on such renewal policy or substitute policy.
1.06.7 Insurance Escrow. Following the occurrence of an Event of Default
hereunder pertaining to the payment of the Note or other payment obligations,
without limitation of any other right or remedy in favor of Lender, Grantor
shall, in order to secure the performance and discharge of Grantor's obligations
under this Section 1.06, but not in lieu of such obligations, deposit with
Lender on the first day of each calendar month throughout the term of the Loan,
a sum in an amount determined by Lender from time to time by written notice to
Grantor, in order to accumulate funds sufficient to permit Lender to pay all
premiums payable in connection with the insurance required hereunder at least
thirty (30) days prior to the date or dates on which they shall become due. Upon
demand by Lender, Grantor shall deliver to Lender such additional monies as are
required to satisfy any deficiencies in the amounts necessary to enable Lender
to pay such premiums thirty (30) days prior to the date they shall become due.
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1.07 Non-Impairment of Lender's Rights. Nothing contained in this Deed of
Trust shall be deemed to limit or otherwise affect any right or remedy of Lender
under any provision of this Deed of Trust or of any statute or rule of Law to
pay and, upon Grantor's failure to pay the same, Lender may pay any amount
required to be paid by Grantor under Sections 1.04, 1.05 and 1.06. Grantor shall
pay to Lender on demand the amount so paid by Lender together with interest at
the rate payable under the Note after an "Event of Default" as such term is
defined in the Note (the "Default Rate") and the amount so paid by Lender
together with interest, shall be added to Borrower's Liabilities. The provisions
of Section 1.04.3 are solely for the added protection of Lender and entail no
responsibility on Lender's part beyond the allowing of due credit as
specifically provided therein. Upon assignment of this Deed of Trust, any funds
on hand shall be turned over to the assignee and, provided the assignee shall
assume Lender's responsibilities with respect to such funds, any responsibility
of Lender with respect to such funds shall terminate.
1.08 Care of the Trust Property.
(a) Grantor shall preserve and maintain the Trust Property in the same or
better condition and repair as exists on the date hereof. Grantor shall not,
without the prior written consent of Lender, permit, commit or suffer any waste,
impairment or deterioration of the Trust Property or of any part thereof, and
will not take any action which will increase the risk of fire or other hazard to
the Trust Property or to any part thereof.
(b) No new improvements shall be constructed on the Trust Property and no
part of the Trust Property shall be removed, demolished or altered in any
material manner without the prior written consent of Lender, which consent shall
not be unreasonably withheld and shall be granted provided Grantor's plans do
not materially or adversely affect Lender's interest in the Trust Property as
reasonably determined by Lender.
1.09 Transfer or Encumbrance of the Trust Property. Except as permitted by
the Note, Grantor shall not permit or suffer to occur any sale, assignment,
conveyance, transfer, mortgage, lease (other than leases made in accordance with
the provisions of this Deed of Trust) or encumbrance of, or any contract for any
of the foregoing on an installment basis or otherwise pertaining to, the Trust
Property, any part thereof, any interest therein, the beneficial interest in
Grantor, any interest in the beneficial interest in Grantor or in any trust
holding title to the Trust Property, or any interest in a corporation,
partnership or other entity which owns all or part of the Trust Property or such
beneficial interest, whether by operation of law or otherwise, without the prior
written consent of Lender having been obtained (i) to the sale, assignment,
conveyance, mortgage, lease, option, encumbrance or other transfer and (ii) to
the form and substance of any instrument evidencing or contracting for any such
sale, assignment, conveyance, mortgage, lease, option, encumbrance or other
transfer. Grantor shall not, without the prior written consent of Lender,
further assign or permit to be assigned the rents from the Trust Property, and
any such assignment without the prior express written consent of Lender shall be
null and void. Grantor shall not permit any interest in any lease of the Trust
Property to be subordinated to any encumbrance on the Trust Property other than
the Loan Instruments and any such subordination
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shall be null and void. Grantor agrees that in the event the ownership of the
Trust Property, any interest therein or any part thereof becomes vested in a
person other than Grantor, Lender may, without notice to Grantor, deal in any
way with such successor or successors in interest with reference to this Deed of
Trust, the Note, the Loan Instruments and Borrower's Liabilities without in any
way vitiating or discharging Grantor's liability hereunder or Borrower's
Liabilities. No sale of the Trust Property, no forbearance to any person with
respect to this Deed of Trust, and no extension to any person of the time for
payment of the Note or any other Borrower's Liabilities given by Lender shall
operate to release, discharge, modify, change or affect the original liability
of Grantor, either in whole or in part, except to the extent specifically agreed
in writing by Lender.
1.10 Further Assurances. At any time and from time to time, upon Lender's
request, Grantor shall make, execute and deliver, or cause to be made, executed
and delivered, to Lender, and where appropriate shall cause to be recorded,
registered or filed, and from time to time thereafter to be re-recorded,
reregistered and refiled at such time and in such offices and places as shall be
deemed desirable by Lender, any and all such further mortgages, security
agreements, financing statements, instruments of further assurance, certificates
and other documents as Lender may consider necessary or desirable in order to
effectuate or perfect, or to continue and preserve the obligations under, this
Deed of Trust and any instrument evidencing or securing Borrower's Liabilities,
and the lien of this Deed of Trust as lien upon all of the Trust Property,
whether now owned or hereafter acquired by Grantor, and unto all and every
person or persons deriving any estate, right, title or interest under this Deed
of Trust. Upon any failure by Grantor to do so, Lender may make, execute,
record, register, file, re-record, re-register or re-file any and all such
mortgages, instruments, certificates and documents for and in the name of
Grantor, and Grantor hereby irrevocably appoints Lender the agent and
attorney-in-fact of Grantor to do so.
1.11 Assignment of Rents.
(a) The assignment of rents, income and other benefits contained in
Section (E) of the Granting Clauses of this Deed of Trust shall be fully
operative without any further action on the part of either party, and,
specifically, Lender shall be entitled, at its option, upon the occurrence of an
Event of Default hereunder, to all rents, income and other benefits from the
Trust Property, whether or not Lender takes possession of such property. Grantor
hereby further grants to Lender the right effective upon the occurrence of a
Primary Default to do any or all of the following, at Lender's option: (i) enter
upon and take possession of the Trust Property for the purpose of collecting
the rents, income and other benefits; (ii) dispossess by the usual summary
proceedings any tenant defaulting in the payment thereof to Lender; (iii) lease
the Trust Property or any part thereof; (iv) repair, restore and improve the
Trust Property; and (v) apply the rents, income and other benefits, after
payment of certain expenses and capital expenditures relating to the Trust
Property, on account of Borrower's Liabilities in such order and manner as
Lender may elect. Such assignment and grant shall continue in effect until
Borrower's Liabilities are paid in full, the execution of this Deed of Trust
constituting and evidencing the irrevocable consent of Grantor to the entry upon
and taking possession of the Trust Property by Lender pursuant to such
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grant, whether or not foreclosure proceedings have been instituted. Neither the
exercise of any rights under this section by Lender nor the application of any
such rents, income or other benefits to payment of Borrower's Liabilities shall
cure or waive any Event of Default or notice provided for hereunder, or
invalidate any act done pursuant hereto or pursuant to any such notice, but
shall be cumulative of all other rights and remedies. Notwithstanding the
foregoing, so long as no Primary Default has occurred or is continuing, Grantor
shall have the right and authority to continue to collect the rents, income and
other benefits from the Trust Property as they become due and payable but not
more than thirty (30) days prior to the due date thereof. The existence or
exercise of such right of Grantor to collect said rents, income and other
benefits shall not operate to subordinate this assignment to any subsequent
assignment of said rents, income or other benefits, in whole or in part, by
Grantor, and any such subsequent assignment by Grantor shall be subject to the
rights of Lender hereunder.
(b) Grantor shall not permit any rent under any lease of the Trust
Property to be collected more than thirty (30) days in advance of the due date
thereof and, upon any receiver, Lender, anyone claiming by, through or under
Lender or any purchaser at a foreclosure sale coming into possession of the
Trust Property, no tenant shall be given credit for any rent paid more than
thirty (30) days in advance of the due date thereof. Grantor shall act promptly
to enforce all available remedies against any delinquent lessee so as to protect
the interest of the lessor under the leases and to preserve the value of the
Trust Property.
1.12 After-Acquired Property. To the extent permitted by, and subject to,
applicable law, the lien of this Deed of Trust shall automatically attach,
without further act, to all property hereafter attaching or added to the Trust
Property pursuant to operation of law or under the so-called "after-acquired
title doctrine". This provision shall not apply to acquisitions of additional
property (including property adjacent to or abutting the Trust Property) by
Grantor from third parties for adequate consideration.
1.13 Leases Affecting Trust Property.
(a) Grantor shall comply with and perform in a complete and timely manner
all of its obligations as landlord under all leases affecting the Trust Property
or any part thereof. Grantor shall give notice to Lender of any default by the
landlord under any lease affecting the Trust Property promptly upon the
occurrence of such default, but, in any event, in such time to afford Lender an
opportunity to cure any such default prior to the tenant having any right to
terminate the lease. Each of the leases shall contain a provision requiring the
tenant to notify Lender of any default by landlord and granting an opportunity
for a reasonable time after such notice to cure such default prior to any right
accruing to the tenant to terminate such lease. Grantor, if requested by Lender,
shall furnish promptly to Lender original or certified copies of all such leases
now existing or hereafter created, as amended. Lender shall have the right to
notify at any time and from time to time any tenant of the Trust Property of any
provision of this Deed of Trust.
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(b) The assignment contained in Section (E) of the Granting Clauses shall
not be deemed to impose upon Lender any of the obligations or duties of the
landlord or Grantor provided in any lease, including, without limitation, any
liability under the covenant of quiet enjoyment contained in any lease in the
event that any tenant shall have been joined as a party defendant in any action
to foreclose this Deed of Trust.
1.14 Management of Trust Property. Grantor shall cause the Trust Property
to be managed at all times in accordance with sound business practices.
1.15 Execution of Leases. Intentionally omitted.
1.16 Expenses. Lender shall pay all costs and expenses incurred by Lender
in preparing the Loan Instruments, securing the Borrower's Liabilities and
perfecting the lien of this Deed of Trust, including its attorney's fees,
recording costs, mortgage registration tax, title insurance and similar costs
and expenses. Without limitation of any obligation of Grantor set forth in the
Note, Grantor shall pay when due and payable, and otherwise on demand made by
Lender, all appraisal fees, recording fees, taxes, brokerage fees and
commissions, abstract fees, title insurance fees, escrow fees, attorneys' fees,
court costs, documentary and expert evidence, fees of inspecting architects and
engineers, and all other costs and expenses of every character which Lender
incurs in enforcing its rights and remedies upon an Event of Default hereunder.
If Grantor fails to pay said costs and expenses as above provided, following
notice thereof to Grantor, Lender may elect, but shall not be obligated, to pair
the costs and expenses described in this Section 1.16, and if Lender does so
elect, then Grantor will, upon demand by Lender, reimburse Lender for all such
expenses which have been or shall be paid or incurred by it. The amounts paid by
Lender shall bear interest at the Default Rate and such amounts, together with
interest, shall be added to Borrower's Liabilities, shall be immediately due and
payable and shall be secured by the lien of this Deed of Trust and the other
Loan Instruments, In the event of foreclosure hereof, Lender shall be entitled
to add to the indebtedness found to be due by the court a reasonable estimate of
such expenses to be incurred after entry of the decree of foreclosure.
To the extent permitted by law, Grantor agrees to hold harmless Lender
against and from, and reimburse it for, all claims, demands, liabilities,
losses, damages, judgments, penalties, costs and expenses, including without
limitation reasonable attorneys fees (collectively, "Claims"), which may be
imposed upon, asserted against, or incurred or paid by it by reason of or in
connection with any bodily injury or death or property damage occurring in or
upon or in the vicinity of the Trust Property through any cause whatsoever, or
asserted against it on account of any act performed or omitted to be performed
hereunder, or on account of any transaction arising out of or in any way
connected with the Trust Property, this Deed of Trust, the other Loan
Instruments, any of the indebtedness evidenced by the Note or any of Borrower's
Liabilities, except Claims to the extent they arise from or are related to
Lender's negligence or willful misconduct.
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1.17 Lender's Performance of Grantor's Obligations. If Grantor fails to
pay any tax, assessment, encumbrance or other imposition, or to furnish
insurance hereunder, or to perform any other covenant, condition or term in this
Deed of Trust, the Note or any other Loan Instrument, Lender may, but shall not
be obligated to, pay, obtain or perform the same. All payments made, whether
such payments are regular or accelerated payments, and costs and expenses
incurred or paid by Lender in connection therewith shall be due and payable
immediately. The amounts so incurred or paid by Lender shall bear interest at
the Default Rate and such amounts, together with interest, shall be added to
Borrower's Liabilities and secured by the lien of this Deed of Trust and the
other Loan Instruments. Lender is hereby empowered to enter and to authorize
others to enter upon the Trust Property or any part thereof for the purpose of
performing or observing any covenant, condition or term that Grantor has failed
to perform or observe, without thereby becoming liable to Grantor or any person
in possession holding under Grantor. Performance or payment by Lender of any
obligation of Grantor shall not relieve Grantor of such obligation or of the
consequences of having failed to perform or pay the same and shall not effect
the cure of any Event of Default.
1.18 Payment of Superior Liens. Notwithstanding the provisions of Section
1.09 hereof, if Grantor creates any lien covering the Trust Property which is
equal or superior in priority in whole or in part to the lien of this Deed of
Trust, then Lender may, at its option and in addition to any other rights and
remedies of Lender hereunder, pay in whole or in part the obligation secured or
evidenced by such lien. To the extent that Lender, after the date hereof, pays
any obligation evidenced or secured by a lien created by Grantor which is
superior or equal in priority, in whole or in part to the lien of this Deed of
Trust, such sum advanced by Lender shall be immediately due and payable, with
interest at the Default Rate and shall be deemed to be a part of Grantor's
Liabilities, and Lender shall have and be entitled to a lien on the Trust
Property equal in parity with that discharged, and Lender shall be subrogated to
and receive and enjoy all rights and liens possessed, held or enjoyed by, the
holder of such lien, which shall remain in existence and benefit Lender to
secure the Note and all obligations and liabilities secured hereby. Lender shall
be subrogated, notwithstanding their release of record, to mortgages, trust
deeds, superior titles, vendors' liens, mechanics' and materialmen's liens,
charges, encumbrances, rights and equities on the Trust Property to the extent
that any obligation under any thereof is paid or discharged with proceeds of
disbursements or advances under the Note or other indebtedness secured hereby.
1.19 Use of the Trust Property. Grantor shall not suffer or permit the
Trust Property, or any portion thereof, to be used by the public, as such,
without restriction or in such manner as might tend to impair Grantor's title to
the Trust Property or any portion thereof, or in such manner as might make
possible a claim or claims of easement by prescription or adverse possession by
the public, as such, or of implied dedication of the Trust Property or any
portion thereof. Grantor shall not use or permit the use of the Trust Property
or any portion thereof for any unlawful purpose.
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1.20 Litigation involving Trust Property. As soon as reasonably possible
after receiving notice thereof, Grantor shall promptly notify Lender of any
litigation, administrative procedure or proposed legislative action initiated or
threatened against Grantor or the Trust Property in which the Trust Property is
directly or indirectly affected including any proceedings which seek to (i)
enforce any lien against the Trust Property, (ii) correct, change or prohibit
any existing condition, feature or use of the Trust Property, (iii) condemn or
demolish the Trust Property, (iv) take, by the power of eminent domain, any
portion of the Trust Property or any property which would damage the Trust
Property, (v) modify the zoning applicable to the Trust Property, or (vi)
otherwise adversely affect the Trust Property. Grantor shall initiate or appear
in any legal action or other appropriate proceedings when necessary to protect
the Trust Property from damage. Grantor shall, upon written request of Lender,
represent and defend the interests of Lender in any proceedings described in
this Section 1.20.
1.21 Environmental Conditions.
(a) Grantor covenants, warrants and represents that for so long as any
of Borrower's Liabilities remain outstanding Grantor shall not cause any
Hazardous Materials (as hereinafter defined) to be generated, released, stored,
buried or deposited over, beneath, in or upon the Trust Property except as such
Hazardous Materials may be required to be used, stored or transported in
connection with the permitted uses of the Trust Property and then only to the
extent permitted by law after obtaining all necessary permits and licenses
therefor. For purposes of this Deed of Trust, "Hazardous Materials" shall mean
and include any pollutants, flammables, explosives, petroleum (including crude
oil) or any fraction thereof, radioactive materials, hazardous wastes, toxic
substances or related materials, including, without limitation, any substances
defined as or included in the definition of toxic or hazardous substances,
wastes, or materials under any federal, state or local laws, ordinances,
regulations or guidances which regulate, govern, prohibit or pertain to the
generation, manufacture, use, transportation, disposal, release, storage,
treatment of, or response or exposure to, toxic or hazardous substances, wastes
or materials. Such laws, ordinances and regulations are hereinafter collectively
referred to as the "Hazardous Materials Laws."
(b) Grantor shall, and Grantor shall cause all employees, agents,
contractors and subcontractors of Grantor and any other persons from time to
time present on or occupying the Trust Property to, keep and maintain the Trust
Property in compliance with, and not cause or knowingly permit the Trust
Property to be in violation of, any applicable Hazardous Materials Laws. Neither
Grantor nor any employees, agents, contractors or subcontractors of Grantor or
any other persons occupying or present on the Trust Property shall use,
generate, manufacture, store or dispose of on, under or about the Trust Property
or transport to or from the Trust Property any Hazardous Materials, except as
such Hazardous Materials may be required to be used, stored or transported in
connection with the permitted uses of the Trust Property and then only to the
extent permitted by law after obtaining all necessary permits and licenses
therefor.
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(c) Grantor shall immediately advise Lender in writing of: (i) any notices
received by Grantor (whether such notices are from the Environmental Protection
Agency, or any other federal, state or local governmental agency or regional
office thereof) of the violation or potential violation occurring on or about
the Trust Property of any applicable Hazardous Materials Laws; (ii) any and all
enforcement, cleanup, removal or other governmental or regulatory actions
instituted, completed or threatened pursuant to any Hazardous Materials Laws;
(iii) all claims made or threatened by any third party against Grantor or the
Trust Property relating to damage, contribution, cost recovery compensation,
loss or injury resulting from any Hazardous Materials (the matters set forth in
clauses (i), (ii) and (iii) above are hereinafter referred to as "Hazardous
Materials Claims"); and (iv) Grantor's discovery of any occurrence or condition
on any real property adjoining or in the vicinity of the Trust Property that
could cause the Trust Property or any part thereof to be subject to any
Hazardous Materials Claims. Lender shall have the right but not the obligation
to join and participate in, as a party if it so elects, any legal proceedings or
actions initiated in connection with any Hazardous Materials Claims and Grantor
shall pay to Lender, upon demand, all attorneys' and consultants' fees incurred
by Lender in connection therewith.
(d) Except as to events occurring and environmental conditions existing
at, on, or under or otherwise adversely affecting the Property on or before the
date hereof (the "Excluded Environmental Matters"), Grantor shall be solely
responsible for, and shall indemnify and hold harmless Lender, its directors,
officers, employees, agents, successors and assigns from and against, any loss,
damage, cost, expense or liability directly or indirectly arising out of or
attributable to the use, generation, storage, release, threatened release,
discharge, disposal or presence whether caused by Grantor or any owner of land
adjacent to the Trust Property or any other third party, or any employee, agent,
contractor or subcontractor of Grantor or any such adjacent land owner or any
third person) of Hazardous Materials on, under or about the Trust Property;
including, without limitation: (i) claims of third parties (including
governmental agencies) for damages, penalties, losses, costs, fees, expenses,
damages, injunctive or other relief; (ii) response costs, clean-up costs, costs
and expenses of removal and restoration, including fees of attorneys and
experts, and costs of determining the existence of Hazardous Materials and
reporting same to any governmental agency; and (iii) any and all expenses or
obligations, including attorneys' fees, incurred at, before and after any trial
or appeal therefrom whether or not taxable as costs, including, without
limitation, attorneys' fees, witness fees, deposition costs, copying and
telephone charges and other expenses.
(e) Any loss, damage, cost, expense or liability incurred by Lender as a
result of a breach or misrepresentation by Grantor or for which Grantor is
responsible or for which Grantor has indemnified Lender shall be paid to Lender
on demand, and, failing prompt reimbursement, such amounts shall, together with
interest thereon at the Default Rate from the date incurred by Lender until paid
by Grantor, be added to Borrower's Liabilities, be immediately due and payable
and be secured by the lien of this Deed of Trust and the other Loan Instruments.
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(f) Lender may, if Lender has reasonable basis to believe that an adverse
environmental condition exists on (or affects) the Trust Property, require
Grantor, at its sole cost and expense, unless the condition pertains to an
Excluded Environmental Matter, from time to time to perform or cause to be
performed, such studies or assessments of the Trust Property, as Lender may deem
necessary or appropriate or desirable, to determine the status of environmental
conditions on and about the Trust Property, which such studies and assessments
shall be for the benefit of, and be prepared in accordance with the
specifications established by, Lender.
(g) Grantor hereby grants to Lender, its agents, employees and
contractors, access to the Trust Property, at reasonable times upon prior
written notice, for the purpose of either (i) taking such action as Lender shall
determine to be appropriate to respond to a release, threatened release, or the
presence of Hazardous Materials, or any related condition, on or about the Trust
Property; or (ii) conducting such studies or assessments of the Trust Property,
as Lender may deem necessary or appropriate or desirable.
1.22 Grantor's Financial Reports. Within ninety (90) days after the close
of each fiscal year, Grantor shall deliver to Lender a true and correct copy of
Grantor's audited financial statements for said fiscal year, prepared in
accordance with generally accepted accounting principles. In addition, promptly
upon the transmission or receipt thereof, Grantor shall deliver to Lender (i)
true and correct copies of Grantor's annual filings with the Securities and
Exchange Commission, if any, and (ii) any market analysts' research reports
pertaining to the financial performance of Grantor.
ARTICLE TWO
DEFAULTS
2.01 Event of Default. The term "Event of Default," wherever used in this
Deed of Trust, shall mean any one or more of the following events:
(a) The failure by Grantor: (i) to pay or deposit when due any
deposit for taxes and assessments due hereunder or any other sums to be
paid by Grantor hereunder; or (ii) to keep, perform, or observe any
covenant, condition or agreement contained in Sections 1.04.1, 1.06.1,
1.06.2, 1.09 or 1.21 hereof; or (iii) to keep, perform or observe any
other covenant, condition or agreement on the part of Grantor in this Deed
of Trust and such failure continues for a period of more than thirty (30)
days following written notice thereof to Grantor.
(b) The occurrence of an "Event of Default" under and as defined in
the Note or any of the other Loan Instruments.
(c) The untruth of any warranty or representation made herein.
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(d) An uninsured loss, damage, destruction or taking by eminent
domain or other condemnation proceedings of any part of the Trust
Property.
ARTICLE THREE
REMEDIES
3.01 Foreclosure and Power of Sale. If an Event of Default shall have
occurred then the whole of the indebtedness secured hereby shall, at the option
of Lender, without notice or demand, become immediately due and payable for all
purposes, time being of the essence of this Deed of Trust; and on application of
Lender, it shall be lawful for and the duty of Trustee immediately to enforce
the lien of this Deed of Trust either (i) by instituting an action to foreclose
this Deed of Trust pursuant to the North Carolina General Statutes and other
applicable law or (ii) by selling the Mortgaged Property under the power of sale
herein vested in Trustee in the manner hereinafter provided. The Trustee is
hereby granted a power of sale, and if Trustee shall sell the Mortgaged Property
under the power of sale herein contained, the Trustee shall have all power and
authority to do so and such sale shall be conducted under and in compliance with
Article 2A of Chapter 45 of the General Statutes of North Carolina, in effect as
of the date hereof, subject to the following provisions:
(a) Such sale shall be conducted pursuant to any subsequently
enacted amendments or revisions of said chapter (or other chapter
governing real estate foreclosure sales under power of sale which
establish obligatory requirements for such sales).
(b) The sale shall be conducted at such place in Pender County,
North Carolina, as Trustee shall designate in the notice of sale.
(c) At any such sale, Trustee may require the successful bidder to
deposit with Trustee cash or certified check in an amount not exceeding
ten percent (10%) of its bid, provided notice of such requirement is
contained in any notice or advertisement required by law. The bid may be
rejected if the deposit is not immediately made. Said deposit shall be
refunded in case a resale is ordered on account of an increased bid. If
the purchaser fails to comply with its bid, the deposit shall be applied
toward the expenses of the sale, and the residue, if any, as a credit to
the indebtedness. In all other cases, the deposit shall be applied against
the purchase price.
(d) Grantor shall pay all expenses of the proceeding under the power
of sale contained herein, including but not limited to the trustee's fee
regardless of whether or not the proceeding is terminated prior to the
actual sale. The Trustee's commission shall be five percent (5%) of the
gross proceeds of the sale for a completed foreclosure. In the event
foreclosure is commenced, but not completed, the Grantor shall pay all
expenses incurred by the Trustee, including reasonable attorneys' fees,
and a partial commission
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computed on five percent (5%) of the outstanding indebtedness in
accordance with the following schedule: one-fourth (1/4th) thereof before
the Trustee issues a notice of hearing on the right to foreclose; one-half
(1/2) thereof after issuance of said notice; three-fourths (3/4ths)
thereof after such hearing; and the full commission after the initial
sale.
(e) Trustee may sell the Mortgaged Property at such sale in whole or
in part in Trustee's sole discretion and without regard to principles of
marshaling.
Upon such sale, Trustee shall collect the purchase money and convey said
property to the purchaser. Lender may bid and purchase at such sale. It is
stipulated and agreed, that if Grantor shall pay the indebtedness and discharge
fully the trust herein declared, then this Deed of Trust shall be discharged or
released of record or the satisfaction thereof otherwise acknowledged according
to the provisions of law.
In the event of a sale of the Trust Property or any part thereof, the
proceeds of sale shall be applied in the following order of priority: (i) to the
payment of all costs and expenses for and in connection with the effecting of
such sale and all proceedings for such sale, including a commission for the
Trustee's services as hereinafter provided and including reasonable attorney's
fees incurred by the Trustee for legal services actually performed; (ii) to the
reimbursement of Lender for all sums expended or incurred by the Lender under
the terms of this Deed of Trust or to enforce this Deed of Trust or to collect
the indebtedness secured hereby (including, without limitation, reasonable
attorneys' fees as provided herein or in the Note secured hereby; (iii) to the
payment of the Note secured hereby and interest thereon and all other
indebtedness hereby secured; and (iv) the balance, if any, shall be paid to the
parties lawfully entitled thereto.
Lender shall further have the right to protect and enforce its rights
under this Deed of Trust, either by suit or suits in equity or at law, in any
court or courts of competent jurisdiction, whether for specific performance of
any covenant or agreement contained herein, or in aid of the execution of any
powers herein granted, or for any foreclosure under this Deed of Trust, or for
the enforcement of such other or additional appropriate legal or equitable
remedies as Lender may deem most effective to protect and enforce such rights.
3.02 Receiver. If an Event of a Default shall have occurred, a receiver
may be appointed by the court without notice, without regard to the solvency or
insolvency of Grantor or the then value of the Mortgaged Property. The receiver
shall have the power to collect any rents and income from the Mortgaged
Property. The receiver shall have the other powers for the protection,
possession, management and operation of the Mortgaged Property which an absolute
owner would have, but the net rents, if any, in the hands of the receiver shall
be applied to the debt hereby secured or to such expenses of the receivership or
foreclosure suit as the court may direct.
3.03 Waiver of Marshaling. Grantor, for itself and all who may at any time
claim through or under it, hereby waives, to the full extent that it may
lawfully so do, the benefit of all
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such laws, and any and all right to have the assets comprising the Trust
Property marshaled upon any foreclosure of the lien hereof and agrees that
Lender or any court having jurisdiction to foreclose such lien may sell the
Trust Property in part or as an entirety.
3.04 Lender in Possession. If an Event of Default shall have occurred,
Lender, to the extent permitted by law and without regard to the value of the
Trust Property or the adequacy of the security for the indebtedness and other
sums secured hereby, shall be entitled as a matter of right and without any
additional showing or proof, at Lender's election, to be placed by the court
into possession of the Trust Property as mortgagee in possession with the same
power herein granted to a receiver and with all other rights and privileges of a
mortgagee in possession under law. The right to enter and take possession of and
to manage and operate the Trust Property, and to collect all rents, income and
other benefits thereof, whether by a receiver or otherwise, shall be cumulative
to any other right or remedy hereunder or afforded by law and may be exercised
concurrently therewith or independently thereof Lender shall be liable to
account only for such rents, income and other benefits actually received by
Lender, whether received pursuant to this Section 3.04 or Section 3.02.
Notwithstanding the appointment of any receiver or other custodian, Lender shall
be entitled as pledgee to the possession and control of any cash, deposits or
instruments at the time held by, or payable or deliverable under the terms of
this Deed of Trust to Lender.
3.05 Suits to Protect the Trust Property. Lender shall have the power and
authority (but not the duty) to institute and maintain any suits and proceedings
as Lender may deem advisable (a) to prevent any impairment of the Trust Property
by any acts which may be unlawful or which violate the terms of this Deed of
Trust, (b) to preserve or protect its interest in the Trust Property, or (c) to
restrain the enforcement of or compliance with any legislation or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule or order
might impair the security hereunder or be prejudicial to Lender's interest.
3.06 Proofs of Claim. In the case of any, receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings affecting Grantor, Lender, to the extent permitted by law,
shall be entitled to file such proofs of claim and other documents as may be
necessary or advisable in order to have its claims allowed in such proceedings
for the entire amounts due and payable under the Note, this Deed of Trust and
any other Loan Instrument, at the date of the institution of such proceedings,
and for any additional amounts which may become due and payable after such date.
3.07 Grantor to Pay Borrower's Liabilities in Event of Default;
Application of Monies by Lender.
(a) In case of a foreclosure sale of all or any part of the Trust Property
and of the application of the proceeds of sale to the payment of Borrower's
Liabilities, Lender shall be entitled to enforce all other rights and remedies
under the Loan Instruments.
20
<PAGE>
(b) Grantor hereby agrees, to the extent permitted by law, that no
recovery of any judgment by Lender under any of the Loan Instruments, and no
attachment or levy of execution upon any of the Trust Property or any other
property of, Grantor, shall (except as otherwise provided by law) in any way
affect the lien of this Deed of Trust upon the Trust Property or any part
thereof or any lien, rights, powers or remedies of Lender hereunder, but such
lien, rights, powers and remedies shall continue unimpaired as before until
Borrower's Liabilities are paid in full.
(c) Any monies collected or received by Lender under this Section 3 shall
be applied to the payment of compensation, expenses and disbursements of the
agents, attorneys and other representatives of Lender, and the balance remaining
shall be applied to the payment of Borrower's Liabilities, in such order and
manner as Lender may elect, and any surplus, after payment of all Borrower's
Liabilities, shall be paid to Grantor.
3.08 Discontinuance of Proceedings; Position of Parties Restored. If
Lender shall have proceeded to enforce any right or remedy under this Deed of
Trust by foreclosure, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason, then and in every such case Grantor
and Lender shall be restored to their former positions and rights hereunder, and
all rights, powers and remedies of Lender shall continue as if no such
proceedings had occurred or had been taken.
3.09 Remedies Cumulative. No right, power or remedy conferred upon or
reserved to Lender by the Note, this Deed of Trust or any other Loan Instrument
or any instrument evidencing or securing Borrower's Liabilities is exclusive of
any other right, power or remedy, but each and every such right, power and
remedy shall be cumulative and concurrent and shall be in addition to any other
right, power arid remedy given hereunder or under the Note or any other Loan
Instrument or any instrument evidencing or securing Borrower's Liabilities, or
now or hereafter existing at law, in equity or by statute.
3.10 Interest After Event of Default. If an Event of Default shall have
occurred, all sums outstanding and unpaid under the Note and all other
Borrower's Liabilities shall, to the extent permitted by law, bear interest
thereafter at the Default Rate.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
4.01 Heirs, Successors and Assigns Included in Parties. Whenever Grantor
or Lender is named or referred to herein, heirs and successors and assigns of
such person or entity shall be included, and all covenants and agreements
contained in this Deed of Trust shall bind the successors and assigns of
Grantor, including any subsequent owner of all or any part of the Trust Property
and inure to the benefit of the successors and assigns of Lender. This Section
4.01 shall
21
<PAGE>
not be construed to permit an assignment, transfer, conveyance, encumbrance or
other disposition otherwise prohibited by this Deed of Trust.
4.02 Notices. All notices, requests, reports demands or other instruments
required or contemplated to be given or furnished under this Deed of Trust to
Grantor or Lender shall be directed to Grantor or Lender, as the case may be, in
the manner set forth in the Note at the following addresses:
If to Lender: Carver Boat Corporation
c/o Genmar Holdings, Inc.
100 South Fifth Street, Suite 2400
Minneapolis, MN 55402
Attn: Mary P. McConnell
If to Grantor: Del Laboratories, Inc.
565 Broad Hollow Road
Farmingdale, NY 11735
Attn: Jim Lawrence
With a Copy to: Del Laboratories, Inc.
565 Broad Hollow Road
Farmingdale, NY 11735
Attn: Shawn A. Smith
If to Trustee: The Fidelity Company
c/o Dennis McNames
P.O. Drawer 84
Winston-Salem, NC 27102
4.03 Headings. The headings of the articles, sections, paragraphs and
subdivisions of this Deed of Trust are for convenience only, are not to be
considered a part hereof, and shall not limit, expand or otherwise affect any of
the terms hereof.
4.04 Invalid Provisions. In the event any of the covenants, agreements
terms, or provisions contained in this Deed of Trust shall be invalid, illegal
or unenforceable in any respect, the validity of the remaining covenants,
agreements, terms or provisions contained herein (or the application of the
covenant, agreement, term held to be invalid, illegal or unenforceable, to
persons or circumstances other than those in respect of which it is invalid,
illegal or unenforceable) shall be in no way affected, prejudiced or disturbed
thereby.
4.05 Changes. Neither this Deed of Trust nor any term hereof may be
released, changed, waived, discharged or terminated orally, or by any action or
inaction, but only by an
22
<PAGE>
instrument in writing signed by the party against which enforcement of the
release, change, waiver, discharge or termination is sought. To the extent
permitted by law, any agreement hereafter made by Grantor and Lender relating to
this Deed of Trust shall be superior to the rights of the holder of any
intervening lien or encumbrance. Any holder of a lien or encumbrance junior to
the lien of this Deed of Trust shall take its lien subject to the right of
Lender to amend, modify or supplement this Deed of Trust, the Note or any of the
other Loan Instruments, to extend the maturity of Borrower's Liabilities or any
portion thereof, to vary the rate of interest chargeable under the Note and to
increase the amount of the indebtedness secured hereby, in each and every case
without obtaining the consent of the holder of such junior lien and without the
lien of this Deed of Trust losing its priority over the rights of any such
junior lien.
4.06 Governing Law. This Deed of Trust shall be construed, interpreted,
enforced and governed by and in accordance with the laws of the State of North
Carolina.
4.07 Required Notices. Grantor shall notify Lender promptly of the
occurrence of any of the following: (i) receipt of notice from any governmental
authority relating to the violation of any rule, regulation, law or ordinance,
the enforcement of which would materially and adversely affect the Trust
Property; (ii) material default by any tenant in the performance of its
obligations under any lease of all or any portion of the Trust Property or
receipt of any notice from any such tenant claiming that a default by landlord
in the performance of its obligations under any such lease has occurred; or
(iii) commencement of any judicial or administrative proceedings by or against
or otherwise adversely affecting Grantor or the Trust Property.
4.08 Release. Upon full payment and satisfaction of Borrower's
Liabilities, Lender shall cause this Deed of Trust to be canceled of record and
the original delivered to Grantor marked "Paid in Full and Satisfied".
4.09 Attorneys, Fees. Whenever reference is made herein to the payment or
reimbursement of attorneys' fees, such fees shall be deemed to include
compensation to staff counsel, if any, of Lender in addition to the fees of any
other attorneys engaged by Lender.
4.10 Compliance with North Carolina Deed of Trust Foreclosure Law. In
the event that any provision in this Deed of Trust shall be inconsistent with
any provision of North Carolina Gen. Stat. ss.45-21 16 et seq. (1985) (the
"Act"), the provisions of the Act shall take precedence over the provisions
of this Deed of Trust, but shall not invalidate or render unenforceable any
other provision of this Deed of Trust that can be construed in a manner
consistent with the Act. If any provision of this Deed of Trust shall grant
to Lender any rights or remedies upon default of Grantor which are more
limited than the rights that would otherwise be vested in Lender under the
Act in the absence of said provision, Lender shall be vested with the rights
granted in the Act to the full extent permitted by law.
23
<PAGE>
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed by
its duly authorized officers as of the day and year first above written.
ATTEST: Del Laboratories, Inc.,
a Delaware corporation
By: By:
-------------------------- --------------------------
Its: Its:
-------------------------- --------------------------
[AFFIX CORPORATE SEAL]
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<PERIOD-START> JUL-01-1997
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0
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