<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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 27, 1996
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OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from________________________to________________________
Commission file number 1-8526
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McDonald & Company Investments, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 34-1391950
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
McDonald Investment Center, 800 Superior Avenue, Cleveland, Ohio 44114-2603
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area
code (216) 443-2300
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Not Applicable
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Former name, former address and former fiscal year, if changed since last report
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date: 8,915,914 shares of Common
Stock, par value $1.00 per share, were outstanding on November 4, 1996.
(1)
<PAGE> 2
McDONALD & COMPANY INVESTMENTS, INC.
INDEX
PART I - FINANCIAL INFORMATION Page
- ------------------------------ ----
Item 1. Financial Statements
Consolidated statements of financial condition (unaudited)-
September 27, 1996 and March 29, 1996............................ 3
Consolidated statements of income (unaudited)-
Fiscal three and six months ended September 27, 1996
and September 29, 1995........................................... 4
Consolidated statements of cash flows (unaudited)-
Fiscal six month ended September 27, 1996 and
September 29, 1996............................................... 5
Notes to consolidated financial statements (unaudited)-
September 27, 1996............................................... 6
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations............................................. 8
PART II - OTHER INFORMATION
- ---------------------------
Item 1. Legal Proceedings.............................................12
Item 4. Submission of Matters to a Vote of Security Holders...........12
Item 5. Other Information.............................................13
Item 6. Exhibits and Reports on Form 8-K..............................14
SIGNATURES....................................................................15
EXHIBIT INDEX.................................................................16
(2)
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
McDONALD & COMPANY INVESTMENTS, INC.
CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION (UNAUDITED)
<TABLE>
<CAPTION>
Sept. 27, March 29,
1996 1996
--------- ---------
<S> <C> <C>
(In thousands)
ASSETS
Cash and cash equivalents $ 4,622 $ 12,376
Receivable from customers 178,001 175,973
Receivable from brokers and dealers 53,129 59,219
Securities purchased under agreements to resell 121,877 50,052
Securities owned 147,881 102,202
Other receivables 24,120 18,368
Furniture, equipment and leasehold improvements,
at cost, less accumulated depreciation and
amortization 18,565 15,719
Other assets 40,455 37,192
-------- --------
$588,650 $471,101
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities
Short-term borrowings $ 72,811 $ 77,024
Payable to customers 59,629 71,722
Payable to brokers and dealers 8,003 15,547
Securities sold under agreements to repurchase 122,118 67,135
Securities sold but not yet purchased 106,961 29,216
Accrued compensation 28,766 28,665
Accounts payable, accrued expenses
and other liabilities 25,124 25,969
Long-term borrowings 25,000 25,000
-------- --------
$448,412 $340,278
======== ========
Stockholders' equity
Preferred Stock, without par value;
200,000 shares authorized; none issued
Common Stock, par value $1.00 per share;
15,000,000 shares authorized; (11,733,288
and 11,620,857 shares issued, respectively) 11,733 11,621
Additional paid-in capital 53,640 51,663
Retained earnings 103,942 93,808
Less treasury stock, at cost (2,817,374 and
2,691,495 shares, respectively (29,077) (26,269)
-------- --------
140,238 130,823
-------- --------
$588,650 $471,101
======== ========
</TABLE>
See Notes to consolidated financial statements (unaudited).
(3)
<PAGE> 4
McDONALD & COMPANY INVESTMENTS, INC.
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
<TABLE>
<CAPTION>
Fiscal Three Months Ended Fiscal Six Months Ended
------------------------------- -------------------------------
Sept. 27, 1996 Sept. 29, 1995 Sept. 27, 1996 Sept. 29, 1995
(13 Weeks) (13 Weeks) (26 Weeks) (26 Weeks)
-------------- -------------- ------------- --------------
<S> <C> <C> <C> <C>
(In thousands, except for share and per share amounts)
Revenues:
Underwriting and investment banking $ 15,946 $ 16,193 $ 37,192 $ 26,463
Principal transactions 13,967 12,701 29,204 27,623
Commissions 17,533 15,950 36,634 30,724
Investment management fees 6,025 4,718 11,601 9,267
Interest and dividends 4,616 3,950 9,274 7,985
Other 1,530 1,962 3,044 3,400
---------- ---------- ---------- ----------
$ 59,617 $ 55,474 $ 126,949 $ 105,462
---------- ---------- ---------- ----------
Expenses:
Employee compensation and benefits $ 33,985 $ 32,101 $ 73,945 $ 61,547
Interest 2,149 1,759 4,349 3,587
Communications 3,835 3,293 7,484 6,553
Occupancy and equipment 4,330 3,457 8,667 6,782
Promotion and development 2,256 1,961 4,696 3,855
Floor brokerage and clearance 680 632 1,273 1,278
Taxes, other than income taxes 1,806 1,731 3,642 3,472
Other operating expenses 2,303 2,424 4,562 4,308
---------- ---------- ---------- ----------
$ 51,344 $ 47,358 $ 108,618 $ 91,382
---------- ---------- ---------- ----------
Income before income taxes $ 8,273 $ 8,116 $ 18,331 $ 14,080
Provision for income taxes 3,000 3,000 6,600 5,200
---------- ---------- ---------- ----------
Net income $ 5,273 $ 5,116 $ 11,731 $ 8,880
========== ========== ========== ==========
Net income per share $ .58 $ .56 $ 1.29 $ .97
========== ========== ========== ==========
Dividends per share $ .09375 $ .08500 $ .17875 $ .16500
========== ========== ========== ==========
Average number of shares and share equivalents
outstanding 9,085,000 9,105,000 9,110,000 9,110,000
========== ========== ========== ==========
</TABLE>
See Notes to consolidated financial statements (unaudited).
(4)
<PAGE> 5
McDONALD & COMPANY INVESTMENTS, INC.
------------------------------------
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
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<TABLE>
<CAPTION>
Fiscal Six Months Ended
-------------------------------
Sept. 27, 1996 Sept. 29, 1995
-------------- --------------
<S> <C> <C>
(In thousands)
OPERATING ACTIVITIES:
Net Income $ 11,731 $ 8,880
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 3,535 2,426
Deferred compensation 328 220
Deferred income taxes (434) 71
(Increase) decrease in receivable from customers (2,028) 13,152
Decrease (increase) in receivable from brokers
and dealers 6,090 (3,808)
Increase in securities owned (45,679) (25,973)
Increase in other receivables (5,752) (4,540)
(Decrease) increase in payable to customers (12,093) 3,643
Decrease in payable to brokers and dealers (7,544) (4,346)
Increase (decrease) in securities sold but not
yet purchased 77,745 (4,993)
Increase in accrued compensation 2,296 3,937
(Decrease) increase in accounts payable, accrued
expenses and other (1,173) 2,990
-------- --------
Net cash provided by (used for) operating activities $ 27,022 $ (8,341)
======== ========
INVESTING ACTIVITIES:
Purchase of furniture, equipment and leaseholds $ (6,053) $ (1,528)
Increase in other assets (3,157) (4,662)
-------- --------
Net cash used for investing activities $ (9,210) $ (6,190)
======== ========
FINANCING ACTIVITIES:
(Increase) decrease in securities purchased under
agreement to resell $(71,825) $ 26,625
(Decrease) increase in short-term borrowings (4,213) 4,075
(Increase) decrease in securities sold under agreements
to repurchase 54,983 (7,354)
Cash dividends (1,597) (1,483)
Purchase of treasury stock (3,314) (2,368)
Proceeds from issuance of treasury stock 400 218
-------- --------
Net cash (used for) provided by financing activities $(25,566) $ 19,713
-------- --------
(Decrease) increase in cash and cash equivalents (7,754) 5,182
Cash and cash equivalents at beginning of period 12,376 2,850
-------- --------
Cash and cash equivalents at end of period $ 4,622 $ 8,032
======== ========
</TABLE>
See Notes to consolidated financial statements (unaudited).
(5)
<PAGE> 6
McDONALD & COMPANY INVESTMENTS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
September 27, 1996
NOTE A - BASIS OF PRESENTATION
- ------------------------------
The consolidated financial statements include the accounts of McDonald & Company
Investments, Inc. and its subsidiaries, collectively referred to as the
"Company". All significant intercompany accounts and transactions are eliminated
in consolidation.
The accompanying unaudited consolidated financial statements do not include all
of the information and notes required by generally accepted accounting
principles for complete financial statements. In the opinion of management, all
adjustments, consisting only of normal and recurring adjustments, considered
necessary for a fair presentation of the financial condition and results of
operations for the periods presented have been included.
NOTE B - LONG-TERM BORROWINGS
- -----------------------------
McDonald & Company Securities, Inc., ("McDonald Securities") has outstanding
$25,000,000 in aggregate principal amount of 8.24% Subordinated Notes due
January 15, 2002. McDonald Securities is required to prepay principal amounts of
$5,000,000 on January 15 in each year beginning in 1998. The notes are
subordinated in right of payment to all senior indebtedness of McDonald
Securities. The principal amount of the notes has been approved by the New York
Stock Exchange, Inc. for inclusion in the regulatory capital of McDonald
Securities.
NOTE C - NET INCOME PER SHARE
- -----------------------------
Net income per share is based on the average number of share and share
equivalents outstanding during the periods. Share equivalents represent the
effect of shares issuable under the Company's stock option plans.
NOTE D - CONTINGENCIES
- ----------------------
McDonald Securities is a defendant in STEPHANIE TUBBS JONES ET. AL. V. MCDONALD
& CO. SECURITIES, INC., ET. AL., (the "Jones Litigation") a lawsuit currently
pending in Cuyahoga County Common Pleas Court. The action arose out of losses
allegedly incurred by Cuyahoga County's Secured Assets Fund Earnings Program
("SAFE"). McDonald Securities and six other defendants have been named in the
lawsuit. The complaint alleges that, in breach of various legal duties allegedly
owed to the plaintiff, McDonald Securities and/or the other defendants enabled,
facilitated and/or assisted the County's investment staff to engage in
unsuitable and inappropriate investment and trading activities and practices.
The plaintiff seeks to hold each of the defendants liable for an unspecified
amount of compensatory and consequential damages. In addition, the complaint
contains allegations of fraud and negligent misrepresentation against McDonald
Securities and another defendant arising out of their respective roles as
underwriters of two issuances of tax and current revenue anticipation notes
("TANS/CRANS") during 1993 and 1994. The plaintiff seeks to hold McDonald
Securities and the other defendant that participated as an underwriter of the
TANS/CRANS offerings liable for an unspecified amount of compensatory,
consequential and punitive damages. In February 1996, the Ohio Supreme Court
disqualified all Cuyahoga County Common Pleas judges from hearing the Jones
litigation and appointed an out-of-county judge to hear the case. In June 1996,
the court denied motions to dismiss the plaintiff's claims filed by McDonald
Securities and various other defendants. In October 1996, the defendants moved
to disqualify the Cuyahoga County Prosecutor's Office from the case on the
grounds of prosecutorial misconduct and because certain employees of that office
are witnesses to the events underlying the plaintiff's claims. The court has not
yet acted on this motion nor has it acted on the defendants' request that the
plaintiff be required to amend its complaint to clarify specific claims against
each of the defendants. The case is
(6)
<PAGE> 7
McDONALD & COMPANY INVESTMENTS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
September 27, 1996
currently in the discovery stage and no trial date has been set. Based on the
facts known to date, the Company believes that the plaintiff's claims against
McDonald Securities are without merit, and intends to contest vigorously the
allegations in the complaint.
The Company is a defendant in various other lawsuits incidental to its
securities business. In view of the number and diversity of claims against the
Company and the inherent difficulty of predicting the outcome of litigation and
other claims, the Company cannot state with certainty what the eventual outcome
of pending litigation or other claims will be. The Company provides for costs
relating to these matters when a loss is probable and the amount can be
reasonably estimated. The effect of the outcome of these matters on the
Company's future results of operations cannot be predicted because any such
effect depends on future results of operations and the amount and timing of the
resolution of such matters. While it is not possible to predict with certainty,
management believes that the ultimate resolution of such matters, including the
Jones' Litigation, will not have a material adverse effect on the consolidated
financial position, liquidity, or results of operations of the Company.
(7)
<PAGE> 8
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
---------------------------------------------------------------
RESULTS OF OPERATIONS
---------------------
BUSINESS ENVIRONMENT
- --------------------
McDonald & Company Investments, Inc. (the "Company") operates a full-service
regional investment banking, investment advisory and brokerage business through
its principal subsidiary, McDonald & Company Securities, Inc. ("McDonald
Securities"). The Company is involved in the origination, underwriting,
distribution, trading and brokerage of fixed income and equity securities, and
provides investment advisory services.
The profitability of the Company is sensitive to many factors, including the
level of securities trading volume and the volatility and general level of
market prices. Many of its activities have high operating costs which do not
decrease with reduced levels of activity. Sustained periods of reduced volume,
or loss of clients, could have adverse effects upon profitability.
The Company faces increasing competition from commercial banks and thrift
institutions as these institutions offer certain investment banking and
corporate and individual financial services traditionally provided only by
securities firms. The Company anticipates regulation of the securities industry
to increase and that compliance with regulations may become more difficult. At
present, the Company is unable to predict the extent of changes that may be
enacted, or the effect on the Company's business.
The Company has formulated a comprehensive strategic plan which is periodically
reviewed and revised as business conditions dictate. The plan emphasizes the
Company's historical roots as a regional brokerage and investment banking firm.
The Company has focused on the Ohio, Michigan and Indiana markets by increasing
the number of sales representatives covering individual investors, as well as
increasing investment banking activities in this region. The Company's
institutional equity and fixed income sales departments cover accounts
throughout the United States and internationally.
LIQUIDITY AND CAPITAL RESOURCES
- -------------------------------
The majority of the Company's assets are highly liquid and short-term in nature.
Cash and liquid assets, principally receivables from customers, brokers and
dealers, securities purchased under agreements to resell, and securities owned
approximate 88% of the Company's assets at September 27, 1996. These assets are
financed by a number of sources, including the Company's capital and short-term
borrowings.
At September 27, 1996, McDonald Securities had outstanding $25,000,000 in
aggregate principal amount of 8.24% Subordinated Notes due January 15, 2002.
McDonald Securities is required to pay principal amounts of $5,000,000 on
January 15 in each year beginning in 1998. The notes are subordinated in right
of payment to all senior indebtedness and general creditors of McDonald
Securities. In addition to providing long-term financing, the notes have been
approved by the New York Stock Exchange, Inc. for inclusion in McDonald
Securities' regulatory capital.
Changes in the levels of securities owned and in customer and broker receivables
directly affect the Company's financing arrangements. The Company has available
lines of credit of $300,000,000, of which $231,330,000 was unused at September
27, 1996. Management believes that funds from operations, available lines of
credit, and long-term borrowings provide sufficient resources to meet present
and anticipated financial needs.
Certain minimum amounts of capital must be maintained by the Company's principal
broker/dealer subsidiary, McDonald Securities, to satisfy the regulatory
requirements of the Securities and Exchange Commission and the New York Stock
Exchange. The regulatory requirements represent Uniform Net Capital Rules
designed to measure the general financial integrity and liquidity of registered
broker/dealers and provide minimum acceptable net capital levels to meet
continuing commitments to customers. Net capital, as defined, changes from day
to day. At September 27, 1996, McDonald Securities was in compliance with the
Uniform Net Capital Rules and had net capital of $71,674,000, which was
$67,350,000 in excess of the minimum required.
(8)
<PAGE> 9
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
-----------------------------------------------------------------------
OF OPERATIONS (CONTINUED)
-------------------------
FISCAL THREE AND SIX MONTH PERIODS ENDED SEPTEMBER 27, 1996 AND
- ---------------------------------------------------------------
SEPTEMBER 29, 1995
- ------------------
Total revenues for the fiscal quarter ended September 27, 1996 were $59,617,000,
an increase of $4,143,000, or 7%, from revenues of $55,474,000 for the fiscal
quarter ended September 29, 1995.
For the fiscal six months ended September 27, 1996, total revenues were
$126,949,000 compared to $105,462,000 for the first six months of fiscal 1996,
an increase of $21,487,000, or 20%.
Net income for the fiscal quarter ended September 27, 1996 was $5,273,000, or
$.58 per share, compared with net income of $5,116,000, or $.56 per share, for
the fiscal quarter ended September 29, 1995, which represents an increase in net
income of 3%.
For the fiscal six months ended September 27, 1996, net income was $11,731,000
or $1.29 per share, compared to $8,880,000, or $.97 per share, for the fiscal
six months ended September 29, 1995, an increase in net income of 32%.
The average number of shares and share equivalents outstanding were 9,085,000
and 9,110,000, respectively, for the fiscal three and six month periods ended
September 27, 1996 compared to 9,105,000 and 9,110,000, respectively, for the
fiscal three and six months ended September 29, 1995.
Revenues from underwriting and investment banking decreased $247,000, or 2%, for
the quarter and increased $10,729,000, or 41%, for the six months ended
September 27, 1996 when compared to the same periods in the prior fiscal year.
Revenues from corporate underwriting and investment banking increased $304,000,
or 2%, for the second quarter and $11,853,000, or 50%, for the six month period.
The increase for the six month period is primarily due to increased revenues
from private placements of $5,944,000, or 123%, and increased revenues from
equity and debt public offerings of $3,317,000, or 37%. These increases reflect
improved market conditions for both the private and public offering of
securities. Included in private placement revenues during the first six months
of fiscal 1997 were fees of $9,336,000 from a single $500 million private
placement of debt and equity securities. Revenues from municipal finance
decreased $551,000, or 32%, for the quarter and decreased $1,124,000, or 39%,
for the six months ended September 27, 1996 when compared to the same periods in
the prior fiscal year, due to a lower level of public finance offerings.
Revenues from underwriting and investment banking activities are highly
dependent on general market conditions for such business activities. Market
conditions for underwriting and investment banking services can be affected by
political and economic events both in the United States and abroad. To the
extent future events are unpredictable, uncertainty will be a factor in the
level of McDonald Securities' business activity. Also, competitive pressure from
other investment banking firms can and will have an effect on the success of
McDonald Securities in obtaining such business and on the prices which can be
charged for investment banking and underwriting services. The management of
McDonald Securities believes it can compete effectively in this segment of its
business activities.
Revenues from principal transactions increased $1,266,000, or 10%, for the
second quarter of fiscal 1997 and $1,581,000, or 6%, for the first six months
when compared to the same periods in the prior fiscal year. Revenues from
trading taxable fixed-income securities, including corporate bonds, United
States government bonds and mortgage-backed securities, increased $762,000, or
14%, for the second quarter and decreased $174,000, or 1%, for the first six
months of fiscal 1997. Revenues from trading municipal bonds increased $651,000,
or 34%, for the second quarter and $999,000, or 24%, for the first six months
primarily due to an increased focus on secondary trading in light of the
decreased supply of originated public finance business. Revenues from principal
transactions in equity securities decreased $147,000, or 3%, for the second
quarter and increased $756,000, or 7%, for the first six months. The decrease in
revenues from principal transactions in equity securities for the second quarter
was due to an overall decline in the equity markets during the second quarter of
fiscal 1997. The increase in principal transactions in equity securities for the
six month period was primarily due to a strong NASDAQ market during the first
quarter of fiscal 1997 and the continued expansion of the Company's sales force.
(9)
<PAGE> 10
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
-----------------------------------------------------------------------
OF OPERATIONS (CONTINUED)
-------------------------
FISCAL THREE AND SIX MONTH PERIODS ENDED SEPTEMBER 27, 1996 AND
- ---------------------------------------------------------------
SEPTEMBER 29, 1995 (CONT.)
- --------------------------
Commissions revenue increased $1,583,000, or 10%, in the current quarter and
$5,910,000, or 19%, in the first six months when compared to the same periods in
fiscal 1996. Commissions revenues from agency transactions in listed and
over-the-counter stocks increased $129,000, or 1%, for the quarter and
$2,470,000, or 12%, for the six month period. Commissions revenue from
non-proprietary mutual funds increased $722,000, or 22%, for the quarter and
$2,019,000, or 33%, for the first six months. Commissions revenue from
proprietary mutual funds increased $177,000, or 11%, for the quarter and
$669,000, or 24%, for the first six months. The increases in commissions revenue
for both non-proprietary and proprietary mutual funds is due to the increased
popularity of mutual fund investments with individual investors. Commissions
revenue from annuity and life insurance products increased $555,000, or 78%, for
the quarter and $752,000, or 52%, for the first six months primarily due to
increased marketing efforts for the sale of these products.
Revenues from investment management fees include advisory fees from the
Company's mutual funds and money market funds and investment management fees
earned related to individually managed accounts. Revenues from investment
management fees increased $1,307,000, or 28%, and $2,334,000, or 25%, for the
fiscal quarter and six month periods ended September 27, 1996 when compared to
the comparable fiscal 1996 periods. Of these amounts, increased revenues from
advisory fees related to individually managed accounts represented $1,076,000,
or 82%, and $1,957,000, or 84%, respectively, of the total increase for the
fiscal three and six month periods.
Interest and dividend income increased $666,000, or 17%, and $1,289,000, or 16%,
for the fiscal three and six month periods ended September 27, 1996 when
compared to the same periods in the prior fiscal year. The increase was due
primarily to an increase in interest earned on margin accounts resulting from
the expansion of the retail sales force and strong equity markets.
Other income decreased $432,000, or 22%, for the current quarter and $356,000,
or 10%, for the six month period ended September 27, 1996. Of these amounts,
lower revenues from venture capital investments represented $647,000, or 182%,
and $672,000, or 189%, respectively, of the total decrease for the fiscal three
and six month periods. The remaining increases represent increased revenue from
service fees and other miscellaneous retail revenues related to the continued
expansion of the retail sales force.
Operating expenses (total expenses before interest) increased $3,596,000, or 8%,
for the second quarter and $16,474,000, or 19%, for the first six months of
fiscal 1997, when compared to the same periods in the prior fiscal year.
Employee compensation and benefits increased $1,884,000, or 6%, for the second
quarter and $12,398,000, or 20%, for the first six months. Commission and other
sales compensation expense increased $2,187,000, or 14%, for the quarter and
$5,074,000, or 16%, for the first six months, primarily because of increased
revenues from commissions and principal sales credits, and changes in the
business mix and product mix which affect sales compensation. Other clerical and
administrative expenses increased $1,297,000, or 14%, for the quarter and
$2,624,000, or 14%, for the six month period. The increase in other clerical and
administrative expenses represents compensation and employee benefit costs
related to an increase in the professional and support staff in the current
periods when compared to the same periods in the prior fiscal year. The
remaining decrease in employee compensation and benefits of $1,600,000, or 24%,
for the second quarter represents decreases in incentive compensation and profit
sharing accruals resulting from a decrease in pretax income before incentive
compensation expense of 10% for the quarter. The incentive compensation expense
was also impacted by the change in business and product mix. The remaining
increase in
(10)
<PAGE> 11
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
---------------------------------------------------------------
RESULTS OF OPERATIONS (CONTINUED)
---------------------------------
FISCAL THREE AND SIX MONTH PERIODS ENDED SEPTEMBER 27, 1996 AND
- ---------------------------------------------------------------
SEPTEMBER 29, 1995 (CONT.)
- --------------------------
employee compensation and benefits of $4,700,000, or 41%, for the six months
represents increases in incentive compensation and profit sharing accruals
resulting from an increase in pretax income before incentive compensation
expense of 35% for the six month period and the high relative level of
investment banking revenues with corresponding higher incentive compensation.
All other operating expenses increased $1,712,000, or 13%, for the current
quarter and $4,076,000, or 16%, for the first six months of fiscal 1997.
Communications expenses increased $542,000, or 16%, for the current quarter and
$931,000, or 14%, for the first six months. Of this increase, approximately
$210,000 for the quarter and $470,000 for the six months represents expenses
related to the renovation of the Company's headquarters office and the recent
company-wide technology renovation. The remaining increase in communications
expense reflects higher telecommunications, quotation and information services
costs due to both higher volume and higher employee headcount. Occupancy and
equipment costs increased $873,000, or 25%, for the current quarter and
$1,885,000, or 28%, for the first six months. Of this increase, approximately
$670,000 for the quarter and $1,600,000 for the six months represented expenses
related to the renovation of the Company's headquarters office and the
technology renovation. Without regard to these items, occupancy and equipment
costs increased 6% for the quarter and 4% for the first six months, reflecting
increased costs related to headcount increases. Promotional and business
development expenses increased $295,000, or 15%, for the current quarter and
$841,000, or 22%, for the first six months primarily due to increased
promotional, travel and business entertainment expenses resulting from the
continued expansion of the Company's business.
Interest expense increased $390,000, or 22%, and $762,000, or 21%, for the
fiscal three month and six month periods in the current fiscal year when
compared to the same period in fiscal 1996. The increase in interest expense is
due to higher levels of average short-term borrowings which increased as a
result of higher customer margin borrowings.
Income before income taxes for the fiscal quarter and fiscal six months ended
September 27, 1996 was $8,273,000 and $18,331,000, resulting in a pre-tax return
on revenues of 13.88% and 14.63% respectively. For the fiscal quarter and fiscal
six months ended September 29, 1995, income before income taxes was $8,116,000
and $14,080,000, resulting in a pre-tax return on revenues of 14.44% and 13.35%
respectively.
(11)
<PAGE> 12
PART II. OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS
-----------------
McDonald Securities is a defendant in STEPHANIE TUBBS JONES ET. AL V.
MCDONALD & CO. SECURITIES, INC., ET. AL., (the "Jones Litigation") a
lawsuit currently pending in Cuyahoga County Common Pleas Court. The
action arose out of losses allegedly incurred by Cuyahoga County's
Secured Assets Fund Earnings Program ("SAFE"). McDonald Securities and
six other defendants have been named in the lawsuit. The complaint
alleges that, in breach of various legal duties allegedly owed to the
plaintiff, McDonald Securities and/or the other defendants enabled,
facilitated and/or assisted the County's investment staff to engage in
unsuitable and inappropriate investment and trading activities and
practices. The plaintiff seeks to hold each of the defendants liable
for an unspecified amount of compensatory and consequential damages. In
addition, the complaint contains allegations of fraud and negligent
misrepresentation against McDonald Securities and another defendant
arising out of their respective roles as underwriters of two issuances
of tax and current revenue anticipation notes ("TANS/CRANS") during
1993 and 1994. The plaintiff seeks to hold McDonald Securities and the
other defendant that participated as an underwriter of the TANS/CRANS
offerings liable for an unspecified amount of compensatory,
consequential and punitive damages. In February 1996, the Ohio Supreme
Court disqualified all Cuyahoga County Common Pleas judges from hearing
the Jones litigation and appointed an out-of-county judge to hear the
case. In June 1996, the court denied motions to dismiss the plaintiff's
claims filed by McDonald Securities and various other defendants. In
October 1996, the defendants moved to disqualify the Cuyahoga County
Prosecutor's Office from the case on the grounds of prosecutorial
misconduct and because certain employees of that office are witnesses
to the events underlying the plaintiff's claims. The court has not yet
acted on this motion nor has it acted on the defendants' request that
the plaintiff be required to amend its complaint to clarify specific
claims against each of the defendants. The case is currently in the
discovery stage and no trial date has been set. Based on the facts
known to date, the Company believes that the plaintiff's claims against
McDonald Securities are without merit, and intends to contest
vigorously the allegations in the complaint.
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
---------------------------------------------------
The Annual Meeting of Stockholders of the Company was held on August 7,
1996. The following matters were voted on at the meeting.
1. Election of James A. Karman, Rena J. Blumberg and Robert T.
Clutterbuck as Directors of the Company. The nominees were elected as
Directors with the following votes:
JAMES A.KARMAN
--------------
For 7,490,520
Withheld 41,583
Broker non-votes 0
RENA J. BLUMBERG
----------------
For 7,489,132
Withheld 42,921
Broker non-votes 0
ROBERT T. CLUTTERBUCK
---------------------
For 7,489,087
Withheld 43,015
Broker non-votes 0
(12)
<PAGE> 13
2. Approval of the adoption of the 1995 Stock Option Plan for
Non-Officer Directors:
For 6,622,644
Against 885,438
Abstain 24,021
Broker non-votes 0
For information on how votes for the above matters have been tabulated,
see the Company's definitive Proxy Statement used in connection with
the Annual Meeting of Stockholders held on August 7, 1996.
Item 5. OTHER INFORMATION
-----------------
On August 7, 1996, the Company announced the continuation of an open
market repurchase program originally instituted in July, 1987. The
current program allows the Company to purchase up to 1,000,000 shares
of its Common Stock at an aggregate price not to exceed $25,000,000.
Treasury shares may be used to satisfy options exercised under the
Company's stock option plans and shares awarded under the Company's
1995 Stock Bonus Plan.
During the fiscal quarter ended September 27, 1996, the Company
purchased 154,703 shares of the Company's Common Stock at an average
price of $18.67 per share. During the fiscal quarter ended September
27, 1996 the Company utilized 21,144 shares of the Company's Common
Stock held in treasury to satisfy options exercised under the Stock
Option Plan for employees.
(13)
<PAGE> 14
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
--------------------------------
(a.) The following exhibits are filed as part of this report:
<TABLE>
<CAPTION>
Sequential
Page Number
-----------
<S> <C> <C>
Exhibit 10(p) Lease Agreement dated May 21, 1996 for the Company's
Gradison Division, which became effective July 1, 1996..... 17
Exhibit 11 Statement re: Computation of Per Share Earnings............ 39
Exhibit 27 Financial Data Schedule BD ................................ 40
</TABLE>
(b.) Reports on Form 8-K:
The Company did not file a Report on Form 8-K during the fiscal quarter
ended September 27, 1996.
* Exhibit 27 is Furnished for Securities and Exchange Commission Purposes Only.
(14)
<PAGE> 15
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.
McDonald & Company Investments, Inc.
----------------------------------------
(Registrant)
Date: November 6, 1996 By: /s/ William B. Summers, Jr.
---------------- -------------------------------------
William B. Summers, Jr.
President and Chief Executive Officer
(Principal Executive Officer)
Date: November 6, 1996 By: /s/Robert T. Clutterbuck
---------------- -------------------------------------
Robert T. Clutterbuck
Treasurer
(Principal Financial Officer)
(15)
<PAGE> 16
McDonald & Company Investments, Inc.
Report on FORM 10-Q for the Fiscal Quarter ended September 27, 1996
EXHIBIT INDEX
-------------
Exhibit No. Description Sequential Page
- ----------- ----------- ---------------
10(p) Lease Agreement Dated May 21, 1996 for the Company's
Gradison Division, which became effective
July 1, 1996............................................. 17
11 Statement Re: Computation of
Per Share Earnings............................. 46
27 Financial Data Schedule BD .............................. 47
* Exhibit 27 is Furnished for Securities and Exchange Commission Purposes Only.
(16)
<PAGE> 1
EXHIBIT 10(P)
AJS
LEASE
THIS LEASE, made this 6th day of August, 1987, between THE WESTERN AND
SOUTHERN LIFE INSURANCE COMPANY, of Cincinnati, Ohio, a mutual reserve life
insurance company organized and existing under the laws of the State of Ohio
(hereinafter referred to as "Landlord"), first party, and Gradison and Company,
Incorporated, a corporation organized under the state laws of the State of
Delaware. (hereinafter referred to as "Tenant"), second party,
WITNESSETH:
ARTICLE I, PREMISES AND USE:
A. Landlord, subject to the terms and conditions hereof, leases to Tenant
the premises (hereinafter referred to as the "Demised Premises") known and
described as minimum of 38,000 S.F. with 600 to 1,000 S.F. on Plaza level and
the entire first floor and part of 2 West. See Rider for final determination of
total square feet of the building (which, together with the heating and air
conditioning equipment serving the office building, wherever such equipment be
located, are collectively hereinafter referred to as the "Building"), located at
580 Walnut Street, in the City of Cincinnati, Ohio, outlined in red on Exhibit
A, attached hereto and made a part hereof, to be used by Tenant for the purpose
of general financial services and related activities and for no other purpose.
All the outside walls of the Demised Premises, the roof, and any space in the
Demised Premises used for shafts, pipes, conduits, ducts, electric or other
utilities, sinks, or other Building facilities, and the use thereof, as well as
access thereto through the Demised Premises for the purpose of operation,
maintenance, decoration and repair, are expressly reserved to Landlord.
B. Tenant agrees to promptly prepare and submit to Landlord detailed
drawings, plans and specifications for improvements to be made within the
Demised Premises for Landlord's written approval. Landlord agrees to finish the
Demises Premises in accordance with the detailed drawings, plans and
specifications; to secure all necessary permits; comply with all building codes,
zoning ordinances and governmental laws and regulations that affect the work to
be performed; that it will perform or cause the work to be performed in a good
and workmanlike manner and deliver the Demised Premises to the Tenant on or
before the commencement date of this Lease barring unforeseen delay, acts of
God, work stoppage or inability to procure materials needed to finish the
Demised Premises not caused by or within the reasonable control of Landlord or
for any other cause beyond Landlord's reasonable control.
SEE RIDER "A"
ARTICLE II, TERM:
Tenant takes from Landlord the Demised Premises upon the terms and
conditions herein contained, to have and to hold the same for a term of TEN AND
ONE-HALF (10 1/2) years, commencing on the first day of January 1988, and ending
on the 30 day of June, 1998, unless sooner terminated as herein provided.
ARTICLE III, RENTAL
Tenant agrees to pay to Landlord for the Demised Premises in lawful money
of the United States the* sum of _____________ dollars ($_______) in
installments as follows:
$13.90 S.F. for the period January 1, 1988 to June 30, 1991
$15.90 S.F. for the period July 1, 1991 to June 30, 1996
$18.00 S.F. for the period July 1, 1996 to June 30, 1998
in advance, on the first day of each calander month during the term hereof
without any setoff or counterclaim whatsoever. All payments shall be made to
ARTHUR RUBLOFF & CO., INC., 580 Walnut Street, Cincinnati, Ohio 45202, or such
other person or firm and at such other place as may from time to time be
designated by Landlord.
*The actual monthly payments will be determined when a final determination has
been made for the total square footage to be occupied by Gradison Inc. and will
be incorporated into a commencement agreement to this lease.
ARTICLE IV, RENT ADJUSTMENT
The parties hereto, recognizing that Operating Expense (as hereinafter
defined) will vary from year to year, hereby agree that the rental set out above
shall be adjusted, computed and paid as herein set forth, to reflect increases
or decreases in Operating Expense, to the end that if there be an increase
therein, Tenant shall pay, as additional rent, a proportionate share of the
increase, and if there by a decrease therein; Tenant's rent shall be reduced by
the proportionate share of the savings, all to the extent hereinafter more
specifically provided, but in no event shall Tenant's rent be less than the
rental as hereinabove set forth.
-1-
<PAGE> 2
Beginning with the Year 1988 for Operating Expense (as hereinafter defined)
and for each Lease Year for Operating Expense thereafter, the annual base rental
hereinabove reserved shall be increased or decreased from year to year by SIX
(6)% of the increase or decrease as the case may be, in Lease Year Operating
Expense (as hereinafter defined) over or under Base Period Operating Expense (as
hereinafter defined). In the event that condemnation, fire or other casualty
may reduce the area of the Demised Premises or the Building, the percentage
figure specified in the next preceding sentence shall be equitably adjusted to
reflect any such change in area.
"Base Period for Operating Expense" is defined as the calendar year 1987.
"Base Period Operating Expense" is defined and the Operating Expense, as
hereinafter defined, incurred in respect of the Base Period for Operating
Expense.
"Lease Year for Operating Expense" is defined as each calendar year
following the end of the Base Period for Operating Expense.
"Lease Year Operating Expense" is defined as the Operating Expense, as
hereinafter defined, incurred in any Lease Year for Operating Expense
"Operating Expense" is defined as the expense incurred by a reasonable and
prudent operator of a first-class office building in downtown Cincinnati, Ohio,
and shall include all costs of operation, maintenance and repair of the Building
and Land.
"Operating Expense" shall include, but not be limited to, the following
expenses of Landlord with respect to the Building and the Land, all determined
on an accrual basis: real estate taxes and special assessments, payroll taxes,
federal and state unemployment taxes and social security taxes; insurance,
including but not limited to boiler, water damage, fire and extended coverage,
liability, workmen's compensation, health, accident and group insurance; water
and sewer charges; licenses, permit and inspection fees; union dues and
subscriptions; cost or wages and salaries of operating personnel including
welfare, retirement, vacations and other compensation and fringe benefits;
management fees; auditor's fees; materials and supplies, including charges for
telephone, telegraph, postage, stationery supplies and other materials and
expenses required for routine operation of the Building operation office;
repairs to and maintenance of the Building and the Land, including cost of
materials, supplies, tools and equipment used in connection therewith; costs
incurred in connection with the operation, inspection and servicing, including
outside maintenance contracts, of elevator, electrical, plumbing, heating, air
conditioning and mechanical equipment and the cost of materials, supplies, tools
and equipment used in connection therewith; cost of services, (including
electricity, steam, gas, water and other utilities) for the operation and
maintenance of the Building and the Land, and all such other expenses and costs
necessary or desirable to be incurred for the purpose of operating and
maintaining the Building and the Land in good and workmanlike condition, but
excluding Landlord's cost of services sold to tenants, costs incurred by
Landlord for tenants' alterations, depreciation and costs of a capital nature.
If the Commencement date is not a January 1 or if this Lease shall
terminate, by reason other than default of Tenant, on a day other than the last
day of December, then, for the Lease Year for Operating Expense during which
such Commencement Date occurs and for the Lease Year for Operating Expense
during which such termination occurs, an equitable adjustment shall be made
between Landlord and Tenant of the increase or decrease, if any, of annual base
rental payable by the party chargeable with payment thereof for such part of
said Lease Year for Operating Expense.
Annually, within ninety (90) days after the expiration of each Lease Year
for Operating Expense, Landlord shall make a determination as to any increase or
decrease in Lease Year Operating Expense and compared to Base Period Operating
Expense. Landlord shall submit to Tenant a statement of the aforesaid
determinations as well as Tenant's proportionate share of said increases or
decreases. Within thirty (30) days after delivery of such statement (inclusive
of any statement delivered after the expiration of the term of this Lease),
Tenant shall pay to Landlord or Landlord shall pay to Tenant, as the case may
be, an amount equal to the amount of the rental adjustment without any setoff or
deduction whatsoever.
All cost and expenses which Tenant assumes or agrees to pay to Landlord
pursuant to this Lease shall be deemed additional rent, and, in the event of
non-payment, Landlord shall have all the rights and remedies herein provided
for in case of non-payment of rent.
ARTICLE V, SERVICE:
Landlord agrees that it shall:
A. Furnish heating, ventilating and air conditioning to provide a
temperature and humidity condition required, in Landlord's judgment, for
comfortable occupancy of the Demised Premises under normal business operations
daily from 8:00 A.M. to 6:00 P.M., Saturdays from 8:00 A.M. to 1:30 P.M.,
Sundays and Holidays excepted. This obligation is conditioned upon readily
available local supplies of oil, gas and electricity and subject at all times
to Local, State and Federal laws, regulations, orders governing the use and
consumption of such energy.
B. Provide passenger elevator service (which may be operatorless, at
Landlord's option), in common with others daily from 8:00 A.M. to 6:00 P.M.,
Saturdays from 8:00 A.M. to 1:30 P.M., Sundays and Holidays excepted, and have
an elevator subject to call at all times when normal passenger service is not
furnished.
C. Provide a freight elevator service in common with other daily from 8:00
A.M. to 6:00 P.M., Saturdays, Sundays and Holidays excepted.
-2-
<PAGE> 3
D. Provide janitor service in and about the Demised Premises daily except
Saturday, Sunday and Holidays.
E. Make all normal repairs to the Demised Premises, excluding repairs to
any special treatment of walls, partitions, floors or ceiling made by or at the
request of Tenant and excluding repairs to any fixtures or other improvements
installed or made by or at the request of Tenant, and also excluding repairs
made necessary as a result of misuse or neglect by Tenant.
F. Provide water for drinking, lavatory and toilet purposes drawn through
fixtures installed by Landlord.
G. Furnish an adequate supply of electrical current of the operation of
standard office equipment and lights.
If Tenant requires cleaning service, electrical current, heating,
ventilating, air conditioning and/or elevator service in addition to the
services which Landlord determines are proper, Landlord shall, upon reasonable
advance notice by Tenant, furnish such additional service and Tenant agrees to
pay to Landlord, within ten (10) days after being billed therefor, as
additional rent, Landlord's charges for labor, material and utilities supplied
in providing for such additional service, it being agreed that said payment and
said costs shall be excluded from Operating Expense.
It is understood that Landlord does not warrant that any of the services
referred to above or any other service which Landlord may supply will be free
from interruption, Tenant acknowledging that any one or more such services may
be suspended by reason of accident or of repairs, alterations or improvements,
or by reason of cause beyond the reasonable control of Landlord. Any such
disturbance of Tenant's use and possession of the Demised Premises or any part
thereof shall not render Landlord liable to Tenant for damages by abatement of
rent or otherwise or relieve Tenant from performance of Tenant's obligations
under this Lease.
ARTICLE VI, BUILDING REGULATIONS:
Tenant agrees that it shall:
A: Observe the rules and regulations hereof annexed as Exhibit B and such
further rules and regulations and from time to time may be put in effect by
Landlord for the general safety, comfort and convenience of Landlord, occupants
and Tenants of the Building. Any failure by Landlord to enforce any rules and
regulations against either Tenant or any other tenant in the Building shall not
constitute a waiver thereof.
B. Give Landlord, its agents or employees, its mortgagee or any other
person or persons authorized by Landlord, access to the Demised Premises at all
reasonable times, without charge or diminution of rent, to enable Landlord
and/or the others hereinbefore mentioned to examine the same and to make such
repairs, additions and alterations as Landlord may deem advisable. Except as
expressly provided otherwise in this Lease, there shall be no allowance to
Tenant or diminution of rent and no liability on the part of Landlord by reason
of inconvenience, annoyance or injury to business arising from the making of any
repairs, alterations, additions or improvements in or to any portion of the
Building or the Demised Premises or in and to the fixtures, appurtenances and
equipment thereof.
C. Keep the Demised Premises in good order and condition, make all repairs
thereto which are not Landlord's obligation pursuant to Article V Paragraph E
hereof, and commit no waste in the Demised Premises or the Building.
D. Upon the termination of this Lease in any manner whatsoever, remove
Tenant's goods and effects and those of any other persons claiming under Tenant,
and quit and deliver up the Demised Premises to Landlord peaceably and quietly
in as good order and condition as the same are now or hereafter may be improved
by Landlord or Tenant, reasonable use and wear thereof and repairs which are
Landlord's obligation excepted. Goods and effects not removed by Tenant at the
termination of this Lease, (or within forty-eight (48) hours after a termination
by reason of Tenant's default), shall be considered abandoned and Landlord may
dispose of the same as it deems expedient, but Tenant shall promptly, upon
demand, reimburse Landlord for any expenses incurred by Landlord in connection
therewith. All alterations, installations, additions, improvements and floor
covering made and installed for Tenant by Landlord, at Landlord's expense, shall
remain Landlord's property, whether movable or not, and Tenant shall be
responsible for the maintenance thereof, normal wear and tear excepted and
Tenant shall not remove said property without the written consent of Landlord.
E. Not place signs on the outside walls, windows or roof of the Building,
or on the Demised Premises, except on doors of the Demised Premises, with
lettering and text approved by Landlord.
F. Not overload, damage or deface the Demised Premises or do any act to
bring or keep anything thereon which may make void or voidable any insurance on
the Demised Premises or the Building or which may render an increased or extra
premium payable for insurance.
G. Not make any alteration of or addition to the Demised Premises without
the written approval of Landlord.
H. At its own expense, cause to be discharged, within (10) days after the
filing thereof, any mechanic's lien filed against the Demised Premises or the
Building for work claimed to have been done for, or materials claimed to have
been furnished to Tenant.
Tenant's obligations under this Article VI to do or not to do a specified
act shall extend to and include Tenant's obligations to see to it that Tenant's
employees, invitees and agents shall do or shall not do such acts, as the case
may be.
-3-
<PAGE> 4
ARTICLE VII, CASUALTY:
In case of damage to the Demised Premises or the Building by fire or
other casualty, Tenant shall give immediate notice to Landlord, who shall
thereupon cause the damage to be repaired with reasonable speed at the expense
of Landlord subject to delays which may arise by reason of adjustment of loss
under insurance policies and for delays beyond the reasonable control of
Landlord, and to the extent that the Demised Premises are rendered untenantable,
the rent shall proportionately abate, except in the event such damage resulted
from or was contributed to by the act, fault or neglect of Tenant, Tenant's
employees, invitees or agents, in which event there shall be no abatement of
rent. In the event the damage shall be so extensive that Landlord shall decide
not to repair or rebuild, this Lease shall, at the option of Landlord, be
terminated as of the date of such damage by written notice from Landlord to
Tenant, given within ninety (90) days after the date of such damage, and the
rent shall be adjusted to the date of such damage and Tenant shall thereupon
promptly vacate the Demised Premises.
See Rider "A"
Paragraph 9
ARTICLE VIII, PERSONAL PROPERTY:
Tenant agrees that Landlord and its building manager and their officers and
employees shall not be liable to Tenant for any damage to or loss of personal
property located in the Demised Premises or for injuries to persons unless such
damage, loss, or injury is the result of the negligence of Landlord, its
building manager, or their officers or employees, and Landlord and its building
manager and their officers and employees shall not be liable to Tenant for any
such damage, loss, or injury, whether or not the result of their negligence, to
the extent Tenant is compensated therefor by Tenant's insurance.
ARTICLE IX, INSURANCE:
Landlord agrees to use its best efforts to include in its fire insurance
policies waivers by the insurers of such insurers' rights of subrogation, if
any, against Tenant, failing which, at Tenant's option, it shall have Tenant
named therein as one of the assureds, but should any additional premium be
exacted for any such waiver or naming. Tenant shall pay such additional premium.
Tenant agrees to use its best efforts to include in its fire insurance policies
waivers by the insurers of such insurers' rights of subrogation, if any, against
Landlord, failing which, at Landlord's option, it shall have Landlord named
therein as one of the assureds, but should any additional premium be exacted for
any such waiver or naming, Landlord shall pay said additional premium.
ARTICLE X, LANDLORD'S REMEDIES:
If Tenant shall default in fulfilling any of the covenants of this Lease,
other than the covenants for the payment of rent or additional rent, and Tenant
shall fail to commence to take steps to remedy the same within thirty (30) days
after written notice thereof from Landlord specifying such default, or having so
commenced, shall thereafter fail to diligently proceed to correct the same, or
if the Demised Premises shall become vacant or deserted and Tenant shall cease
paying rent, or if any execution or attachment shall be issued against Tenant or
any of its property whereupon the Demised Premises shall be taken or occupied or
attempted to be taken or occupied by some one other than Tenant and the same
shall not be bonded and/or dismissed or discharged as promptly as possible under
the circumstances, Landlord may give ten (10) days notice of intention to end
the term of this Lease and thereupon, at the expiration of said ten (10) days,
the term of this Lease shall expire as fully and completely as if that day were
the day herein definitely fixed for the expiration of said term, and Tenant
shall then quit the Demised Premises and surrender the same, but shall remain
liable as hereinafter provided.
If the notice provided for in the above paragraph shall have been given and
the term of this Lease shall expire as aforesaid, or if Tenant shall continue in
default in the payment of the rent reserved herein or any item of additional
rent herein mentioned or any part of either after ten (10) days after notice
thereof by Landlord, or in making any other payment herein provided after ten
(10) days after notice thereof by Landlord, then and in any such events,
Landlord may, without 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 proceedings or otherwise and remove
their effects and hold the Demised Premises as if this Lease had not been made;
and Tenant hereby waives the service of notice of intention to re-enter or to
institute legal proceedings to that end. If Tenant shall make default hereunder
prior to the date fixed as the commencement of any renewal or extension of this
Lease, and Tenant shall fail to cure such default within the time provided
therefor and Landlord shall thereby become entitled to and shall terminate this
Lease or re-enter and dispossess Tenant, then Landlord may cancel and terminate
such renewal or extension by written notice. Tenant further agrees that in case
of any such termination, Tenant shall indemnify Landlord against all loss of
rents and other damage which Landlord may incur by reason of such termination,
including, but not limited to, costs of restoring and repairing the Demised
Premises and putting the same in rentable condition, costs of renting the
Demised Premises to another Tenant, loss or diminution of rents and other damage
which Landlord may incur by reason of such termination and all reasonable
attorneys' fees and expenses incurred in enforcing any of the terms of this
Lease or any other rights or remedies of Landlord. Neither acceptance of rent by
Landlord, with or without knowledge of breach, nor failure of Landlord to take
action on account of any breach hereof or to enforce its rights hereunder shall
be deemed a waiver of any breach, and absent written notice or consent, said
breach shall be a continuing one. The words "re-enter" and "re-try" as used in
this Lease are not restricted to their technical legal meaning.
ARTICLE XI, NOTICES:
All bills, statements, notices or communications which Landlord may desire
or be required to give to Tenant shall be deemed sufficiently given or rendered
if in writing and either delivered to Tenant personally or sent by
-4-
<PAGE> 5
registered mail or certified mail addressed to Tenant at the Building, and the
time of rendition thereof or the giving of such notice or communication shall be
deemed to be the time when the same is delivered to Tenant or deposited in the
mail as herein provided. Any notice by Tenant to Landlord must be served by
registered mail or certified mail addressed to Landlord at the address where the
last previous rent hereunder was payable, or in the case of subsequent change
upon notice given, to the latest address furnished.
ARTICLE XII, HOLDING OVER:
Should Tenant continue to occupy the Demised Premises after the expiration
of said term or any renewal or renewals thereof, with the express or implied
consent of Landlord, such tenancy shall be from month to month and in no event
from year to year or for any longer term.
ARTICLE XIII, EMINENT DOMAIN:
If the whole or substantially the whole of the Building or of the Demised
Premises shall be lawfully condemned or taken in any manner for any public or
quasi-public use or purpose, this Lease and the term and estate hereby granted
shall forthwith cease and terminate as of the date of taking of possession for
such use or purpose. If less than the whole or substantially the whole of the
Building or of the Demised Premises shall be condemned or taken, then Landlord
(whether or not the Demised Premises be affected) may, at its option, terminate
this Lease and the term and estate hereby granted as of the date of the taking
of possession for such use or purpose by notifying Tenant in writing of such
termination. Upon any such taking or condemnation and the continuing in force of
this Lease as to any part of the Demised Premises, the base rental shall be
diminished by an amount representing the part of the said rent properly
applicable to the portion of the Demised Premises which may be so condemned or
taken and Landlord shall, at its expense, proceed with reasonable diligence to
repair, alter and restore the remaining part of the Building and the Demised
Premises to substantially their former condition to the extent that the same may
be feasible. Landlord shall be entitled to receive the entire award in any
condemnation proceeding, including any award for the value of any unexpired term
of this Lease, and Tenant shall have no claim against Landlord or against the
proceeds of the condemnation except to the extent expressly provided in the next
succeeding paragraph.
If the temporary use or occupancy of all or any part of the Demised
Premises shall be condemned or taken for any public or quasi-public use during
the term of this Lease, this Lease shall be and remain unaffected by such
condemnation or taking and Tenant shall continue to pay in full the rent,
additional rent and other sums payable hereunder by Tenant and Tenant shall have
the right to appear, claim, prove and receive so much of the award for such
taking as represents compensation for use and occupancy of the Demised Premises
up to and including the date of the expiration of the term of this Lease or the
date of termination of the temporary taking, whichever is earlier, and Landlord
shall be entitled to appear, claim, prove and receive the entire balance of the
award.
ARTICLE XIV, BANKRUPTCY:
If at or prior to the date fixed as the commencement of the term of this
Lease, or if at any time during the term hereby demised, there shall be filed by
or against Tenant, in any court, pursuant to any statute, either of the United
States or of any State, a petition in bankruptcy or insolvency, or for
liquidation, reorganization or involuntary dissolution 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; 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, shall be entitled to possession or to remain in
possession of the Demised Premises but shall forthwith quit and surrender the
same, and Landlord, in addition to the other rights and remedies Landlord has by
virtue of this Lease or any statute or rule of law, may retain as security for
its damages any rent, security, deposit or monies received by Landlord from
Tenant or others in behalf of Tenant. In the event that at any of the times
above mentioned, an involuntary bankruptcy, insolvency or reorganization
proceeding shall be instituted, Tenant shall have ninety (90) days in which to
vacate the Demised Premises before Landlord has any rights to terminate this
Lease.
It is stipulated and agreed that in the event of the termination of this
Lease pursuant to any of the terms of Article X hereof or this Article XIV,
Landlord shall forthwith, notwithstanding any other provisions of this Lease to
the contrary, be entitled to recovery from Tenant as and for liquidated damages
an amount equal to the difference between the rent reserved hereunder for the
unexpired portion of the term demised and the then fair and reasonable rental
value of the Demised Premises for the same period. In the computation of such
damages, the difference between an installment of rent becoming due hereunder
after date of termination and the fair and reasonable rental value of the
Demised Premises for the period for which such installment was payable shall be
discounted to the date of termination at the rate of four per cent (4%) per
annum. If the Demised Premises or any part thereof be re-let by Landlord for the
unexpired term of this Lease, or any part thereof, before presentation of proof
of such liquidated damages to any court, commission or tribunal, the amount of
rent reserved upon such re-letting shall be deemed prima facie to be the fair
and reasonable rental value for the part or the whole of the premises so re-let
during the term of the re-letting. Nothing herein contained shall limit or
prejudice the right of 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.
-5-
<PAGE> 6
ARTICLE XV, ASSIGNMENT & SUBLETTING:
Tenant shall not, without the written consent of Landlord first obtained in
each case, sell, assign, mortgage transfer this Lease, in whole or in part, or
sublet all or part of the Demised Premises.
Each assignee or transferor shall assume and be deemed to have assumed this
Lease and shall be and remain liable jointly and severally with Tenant for the
payment of the rent, additional rent and adjustments of rent, and for the due
performance of all the terms, covenants, conditions and agreements herein
contained on Tenant's part to be performed for the term of this Lease. No
assignment shall be binding on Landlord unless such assignee or Tenant shall
deliver to Landlord a counterpart of such assignment and an instrument in
recordable form which contains a covenant of assumption by the assignee, but the
failure or refusal of the assignee to execute such instrument of assumption
shall not release or discharge the assignee from its liability as set forth
above.
Any consent to any sale, assignment, mortgage, transfer or sublease which
may be given by Landlord shall not constitute a waiver by Landlord of the
provisions of this Article XV, or a release of Tenant from the full performance
by it of the covenants on the part of Tenant herein contained; and any consent
given by Landlord to any sale, assignment, mortgage, transfer or sublease shall
not relieve Tenant from the above requirements for obtaining the written consent
of Landlord to any subsequent sale, assignment, mortgage, transfer or sublease.
ARTICLE XVI, USE & CARE OF PREMISES:
Tenant shall not place a load upon any floor of the Demised Premises which
exceeds the load per square foot which is allowed by Law.
Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the Building or
to any space therein to such a degree as to be objectionable to Landlord or to
any tenants in the Building shall be placed and maintained by Tenant, at
Tenant's expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibration.
Tenant shall, at its own expense, comply with all laws, orders, ordinances
and regulations of Federal, State, County and Municipal authorities and with
any direction made pursuant to law of any public officer or officers which
shall, with respect to the use of the Demised Premises or to any abatement of
nuisance, impose any violation, order or duty upon Landlord or Tenant arising
from Tenant's use of the Demised Premises or from conditions which have been
created by or at the instance of Tenant or required by reason of a breach of
any of Tenant's covenants or agreements hereunder.
Tenant shall not do or permit to be done any act or thing upon the Demised
Premises which will invalidate or be in conflict with the terms of the Ohio
standard form of fire, boiler, sprinkler, water damage or other insurance
policies covering the Building and the fixtures and property therein; and Tenant
shall, at its own expense, comply with all rules, regulations and requirements
of the National Board of Fire Underwriters or any state or other similar body
having jurisdiction, and shall not knowingly do or permit anything to be done in
or upon the Demised Premises or bring or keep anything therein or use the
Demised Premises in a manner which increases the rate of fire insurance upon the
Building or on any property or equipment located therein.
Landlord, at its expense, shall furnish electric current, fixtures, lamps
and equipment for the lighting of public Building lobbies, public corridors, and
other public portions of the Building, and shall furnish electric current for
all air conditioning machinery, elevators and other Building equipment.
At the option of Landlord, Tenant agrees to purchase from Landlord all
lamps, bulbs, starters and ballasts used in the Demised Premises and to pay
Landlord for the cost of installation thereof.
Landlord shall not be liable for any loss or damage or expense which Tenant
may sustain or incur if either the quantity or character of electric service is
changed or made unavailable to Tenant or unsuitable for its requirements by
reason of the requirements of the public utility company supplying electric
current to the Building or for any reason not attributable to Landlord.
Tenant shall make no alteration or additions to the electric equipment, or
installation without the prior written consent of Landlord and work shall be
done by Landlord at Tenant's expense in accordance with plans and specifications
of Tenant to be submitted to and approved by Landlord.
ARTICLE XVII, QUIET POSSESSION:
Landlord covenants that upon Tenant's paying the rent and additional rent
and observing and performing all the terms, covenants and conditions of this
Lease 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.
ARTICLE XVIII, DEFAULT:
If Tenant shall default in the observance or performance of any term or
covenant on its part to be observed or performed under or by virtue of any of
the terms and provisions in any paragraph of this Lease, Landlord, without being
under any obligation to do so and without thereby waiving such default, may
remedy such default for the
-6-
<PAGE> 7
account and at the expense of Tenant, immediately and without notice in case of
emergency, or in any other case only provided that Tenant shall fail to remedy
such default with all reasonable dispatch after Landlord shall have notified
Tenant, in writing, of such default. If Landlord makes any expenditures or
incurs any obligations for the payment of money in connection therewith,
including but not limited to, attorneys' fees in instituting prosecuting or
defending any action or proceeding, such sums paid or obligations incurred with
interest and cost shall be paid to it by Tenant.
ARTICLE XIX, RIGHT OF TERMINATION:
In the event of any act or omission by Landlord which would give Tenant the
right to terminate this Lease or to claim a partial or total eviction, Tenant
will not exercise any such right until: (i) it has given written notice of such
act or omission to the holder of any first mortgage affecting the Building or
the Building and the Land upon which it is erected whose name and address shall
have been furnished to Tenant in writing by delivering such notice of such act
or omission addressed to such holder at the last address so furnished; and (ii)
a reasonable period remedying such act or omission shall have elapsed following
such giving of notice provided any such holder with reasonable diligence, shall,
following the giving of such notice, have failed to commence and continue to
remedy such act or to cause the same to be remedied.
ARTICLE XX, ESTOPPEL CERTIFICATE:
Tenant agrees, at any time, and from time to time, upon not less than
fifteen (15) days prior notice by Landlord, to execute, acknowledge and deliver
to Landlord, a statement, in writing, certifying that this Lease is unmodified
and in full force and effect (or if there have been modifications, that the same
is in full force and effect as modified and stating the modifications), and the
dates to which the rent, additional rent and other charges have been paid, and
stating whether or not to the best knowledge of the signer of such certificate,
Landlord is in default in performance of any covenant, agreement, term,
provision or condition contained in this Lease and, if so specifying each such
default of which the signer may have knowledge, it being intended that any such
statement delivered pursuant hereto may be relied upon by any prospective
purchaser or lessee of the Building or of the Building and the Land upon which
it is erected, any mortgagee or prospective mortgagee thereof, or any
prospective assignee of any mortgage thereof. Tenant also agrees to execute and
deliver from time to time such similar estoppel certificates as an institutional
lender may require with respect to this Lease.
ARTICLE XXI, MISCELLANEOUS:
A. The word "Tenant," wherever used in this Lease, shall be construed to
mean tenants in all cases where there is more than one tenant, and the necessary
grammatical changes required to make the provisions hereof apply to corporation,
partnerships or individuals, men or women, shall in all cases be assumed as
though in each case fully expressed. Each provision hereof shall extend to and
shall, as the case may require, bind and inure to the benefit of any assignee,
heir, legal representative, transferee or successor of Tenant except upon the
express written consent or election of Landlord.
B.
C. This Lease shall be governed by the Laws of the State of Ohio. This
Lease contains the entire agreement between the parties, and any executory
agreement hereafter made shall be ineffective to change, modify, discharge or
effect an abandonment of it in whole or in part unless such executory agreement
is in writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
D. The parties hereto mutually agree, upon the written request of either
one or the other, to execute a Memorandum of Lease in recordable form for filing
and recording in the Office of the Recorder of Hamilton County, Ohio.
-7-
<PAGE> 8
IN WITNESS WHEREOF, the respective parties hereto have executed this
Lease or caused this Lease to be executed and sealed by their duly authorized
representatives, the day, month and year first above written.
<TABLE>
<S> <C>
In the Presence of: LANDLORD:
THE WESTERN AND SOUTHERN LIFE
INSURANCE COMPANY INC.
/s/ Leslie C. Jones BY: /s/ William F. Meyer
- --------------------------------- ------------------------------------
William F. Meyer, Vice President
/s/ Ruth Bell BY: /s/ Dennis J. Seyferth
- --------------------------------- ------------------------------------
Dennis J. Seyferth, Asst. Secretary
TENANT:
/s/ Mary Ann Plunkett BY: /s/ Donald E. Weston
- --------------------------------- ------------------------------------
/s/ Naomi Reinstatler BY: /s/ Paul J. Weston
- --------------------------------- ------------------------------------
</TABLE>
-8-
<PAGE> 9
STATE OF OHIO
SS:
COUNTY OF HAMILTON
On this 6th day of August 1987, before me a Notary Public, appeared
William F. Meyer and Dennis J. Seyferth, to me personally known to be the
persons described in and who executed the foregoing instrument, who, being by
me duly sworn, did say that they are Vice President and Assistant Secretary,
respectively, of THE WESTERN AND SOUTHERN LIFE INSURANCE COMPANY, the
corporation named in said instrument, that the seal affixed to said instrument
is the corporate seal of said corporation, that said instrument was signed by
them and sealed on behalf of said corporation by authority of its Board of
Directors, and said William F. Meyer and Dennis J. Seyferth acknowledged said
instrument to be the free act and deed of said corporation.
/s/ James W. Carpenter
------------------------------------
JAMES W. CARPENTER
NOTARY PUBLIC STATE OF OHIO
LIFETIME COMMISSION
STATE OF OHIO
SS:
COUNTY OF HAMILTON
On this 31st day of July, 1987, before me a Notary Public, appeared
DONALD E. WESTON and PAUL J. WESTON, to me personally known to be the persons
described in and who executed the foregoing instrument, who, being by me duly
sworn, did say that they are CHAIRMAN OF THE BOARD AND SR. VICE PRESIDENT,
respectively, of GRADISON & COMPANY INCORPORATED, the corporation named in said
instrument, that the seal affixed to said instrument is the corporate seal of
said corporation, that said instrument was signed by them and sealed on behalf
of said corporation by authority of its Board of Directors, and said DONALD E.
WESTON AND PAUL J. WESTON acknowledged said instrument to be the free act and
deed of said corporation.
/s/ Mary Ann Plunkett
------------------------------------
MARY ANN PLUNKETT
Notary Public, State of Ohio
My Commission Expires May 30, 1989
<PAGE> 10
RIDER "A"
THIS RIDER is attached to and forms a part of the lease dated the __ day of
________, made by and between THE WESTERN AND SOUTHERN LIFE INSURANCE COMPANY,
Landlord, and GRADISON AND COMPANY, INCORPORATED, a Delaware Corporation,
Tenant.
1. PREPARATION OF DRAWINGS & DETERMINATION OF SQUARE FOOTAGE
---------------------------------------------------------
Tenant shall have 45 days after execution for approval of drawings and
space plans to determine total square footage to be occupied by tenant. In
no event shall it be less than 38,000 square feet (all square footage to be
field verified). All construction and planning are to be paid for with
funds allocated as a remodeling allowance listed below in this Rider "A".
All plans and drawings must be approved by Landlord within ten (10) days of
receipt.
Tenant shall have the right to alter, remodel and improve the interior of
the leased premises at Tenant's own cost and expense in accordance with
plans and specifications to be prepared by Tenant and approved by Landlord.
Prior to the commencement of said alterations, remodeling and improvements,
Tenant shall deliver to Landlord a contractor's affidavit from all
contractors and sub-contractors who shall be employed to furnish work,
labor and materials to the leased premises, together with Waivers of
Mechanics Liens, Certificates of Insurance and City Permits from said
contractors and sub-contractors.
2. FIRST RIGHT OF REFUSAL
----------------------
Gradison shall have a First Right of Refusal for the remainder of the
second floor. This Right does not precede any rights of current Tenant as
to renewal of his lease. Should current Tenant give notice to vacate,
Landlord will then give Gradison a proposal at then current effective
market rent that they will have 30 days to respond and agree to a new
lease. They will then have 120 days to complete drawings and construction
prior to commencement of rent or this first right of refusal shall become
null and void.
3. OCCUPANCY
---------
On or before October 1, 1987, with the Landlord's portion of construction
completed as described in the Construction Clause on page 2. The current
tenant will vacate September 1, 1987. The Landlord will halve the rent for
each day that Gradison is not given possession on all current Gradison
space if Gradison is not given occupancy on October 1, 1987. The rent on
the new space will then start ninety (90) days after occupancy is given.
Failure by Gradison to vacate by February 1, 1988, will cause a penalty of
doubling of Gradison's current rent for each day Tenant fails to vacate for
the existing space occupied as of the dating of this agreement. (This
assumes possession is given on or before October 1, 1987).
4. SPECIAL TERMS AND CONDITIONS
----------------------------
Landlord will pay as compensation for construction on the Seventh (7th)
Floor, $50,000 including drawings and construction. Gradison must
reasonably verify these charges are for the Seventh (7th) Floor only.
5. CONSTRUCTION CLAUSE
-------------------
Landlord will contribute $15.00 per square foot for construction on the
First (1st) floor, Second (2nd) Floor and the Skywalk
<PAGE> 11
plus all dollars remaining from Gradison's original term, which is
$40,556.90. In addition, Landlord will complete all demolition per tenant's
drawings by October 1, 1987, except where such construction should
reasonably be delayed to coordinate with Gradison's construction. This
includes rehanging ceiling grid, removing the carpet and/or tile from the
entire demised premises and providing ceiling tile throughout. The ceiling
grid, lights and lenses should be totally cleaned or replaced with new, to
provide a Building Standard condition throughout. Building will provide
building standard vertical blinds, clean and in good repair.
6. SEVENTH FLOOR
-------------
Tenant will remain liable for the Seventh (7th) floor until June 1, 1987.
If a satisfactory lease agreement is not executed by July 2, 1987, then
Tenant will be liable for any months such agreement remains unsigned. Said
lease must be delivered to Gradison so that Gradison shall have no less
than Two (2) weeks to execute the document. The said document shall be the
same as the existing lease except for term, size and tenant improvement
allowance.
7. COMPUTER ROOM
-------------
As an additional accommodation, Western & Southern Life Insurance Company
will pay up to $10,000 for special HVAC and construction of a temporary
computer room to be used prior to January 1, 1988.
8. PARKING
-------
Landlord shall make a good faith effort to make available for Tenant's
exclusive use, up to a total of 24 fixed location parking stalls at
Tenant's option in the 580 Building's parking garage beginning January 1,
1988, thru the term of this lease and any renewals thereof. Tenant agrees
to accept these additional parking stalls subject to the market rental rate
with normal increases in said market rate during the term of this lease and
any renewals.
9. DISTRIBUTION OF BUSINESS
------------------------
In the event Tenant is denied access to the Demised Premises in the
ordinary course of its business, to the extent its business operations are
substantially adversely affected, whether or not occasioned by fire or
other casualty, as set forth in Article VII of this Lease, which continues
for a period of one hundred twenty (120) days, then in such event, Tenant
may cancel and terminate this Lease by written notice to Landlord within
thirty (30) days following the expiration of said one hundred twenty (120)
day period.
<PAGE> 12
IN WITNESS WHEREOF
<TABLE>
<S> <C>
In the Presence of: LANDLORD:
THE WESTERN AND SOUTHERN LIFE
INSURANCE COMPANY INC.
/s/ Leslie C. Jones BY: /s/ William F. Meyer
- --------------------------------- ------------------------------------
William F. Meyer, Vice President
/s/ Ruth Bell BY: /s/ Dennis J. Seyferth
- --------------------------------- ------------------------------------
Dennis J. Seyferth, Asst. Secretary
TENANT:
/s/ Mary Ann Plunkett BY: /s/ Donald E. Weston
- --------------------------------- ------------------------------------
/s/ Naomi Reinstatler BY: /s/ Paul J. Weston
- --------------------------------- ------------------------------------
</TABLE>
<PAGE> 13
[ARCHITECTURAL DRAWING]
580 Building
Cincinnati, Ohio
not to scale FIRST OFFICE FLOOR EXHIBIT A
<PAGE> 14
[ARCHITECTURAL DRAWING]
580 Building
Cincinnati, Ohio
not to scale SECOND OFFICE FLOOR EXHIBIT A
<PAGE> 15
EXHIBIT A
[ARCHITECTURAL DRAWING]
580 Building
Cincinnati, Ohio
Partial Plan - Plaza Level
not to scale
<PAGE> 16
EXHIBIT B
RULES AND REGULATIONS
1. Landlord shall have the right to control and operate the public portions of
the Building and the public facilities, as well as facilities furnished for the
common use of the tenants, in such manner as it deems best for the benefit of
the tenants generally. No tenant shall invite to the premises, or permit the
visit of, persons in such numbers or under such conditions as to interfere with
the use and enjoyment of the entrances, corridors, elevators and facilities of
the Building by other tenants.
2. Landlord may refuse admission to the Building outside of ordinary business
hours to any person not known to the watchman in charge or not having a pass
issued by Tenant or not properly identified, and may require all persons
admitted to or leaving the Building outside of ordinary business hours to
register.
3. No tenant shall obtain or accept for use in the premises, ice, coffee
service, catering, drinking water, barbering or bootblacking from any person not
authorized by Landlord in writing to furnish such services, provided always,
that the charges for such services by persons authorized by Landlord are not
excessive.
4. No awnings or other projections over or around the windows or around the
windows or entrances of the premises shall be installed by any tenant.
5. Freight, furniture, business equipment, merchandise and bulky matter of any
description ordinarily shall be delivered to and removed from the premises only
in the elevator specified by the Building Manager for such matter, and through
the service entrances and corridors, but special arrangements will be made for
moving large quantities of furniture and equipment into or out of the Building.
6. All entrance doors in the premises shall be left locked when the premises are
not in use.
7. Canvassing, soliciting or peddling in the Building is prohibited and each
tenant shall cooperate to prevent the same.
8. Tenant shall not advertise the business, profession or activities of Tenant
in any manner which violates the letter or spirit of any code of ethics adopted
by any recognized association or organization pertaining thereto, or, use the
name of the Building for any purpose other than that of the business address of
Tenant.
9. Tenant shall not attach or permit to be attached additional locks or similar
devices to any door, transom or window of the premises; change existing locks or
the mechanism thereof; or make or permit to be made any keys for any door
thereof other than those provided by Landlord. (If more than two keys for one
lock are desired, Landlord will provide them upon payment therefor by Tenant).
10. Tenant agrees that it shall not discriminate upon the basis of race, color,
religion, sex or national origin in the use and occupancy or in any sublease or
subletting of the demised premises.
11. Landlord reserves the right by written notice to Tenant to rescind, alter or
waive any rule or regulation at any time prescribed for the Building when, in
Landlord's judgment, it is necessary, desirable or proper for the best interest
of the Building and its tenants.
<PAGE> 17
SECOND AMENDMENT TO LEASE
-------------------------
This Second Amendment to Lease (the "Amendment") made this 21st day of
May, 1996 by 580 WALNUT PARTNERS, an Illinois general partnership ("Landlord")
and MCDONALD & COMPANY SECURITIES, INC., a Delaware corporation ("Tenant").
WITNESSETH
----------
A. Landlord and Tenant hereby confirm and ratify, except as modified below,
all the terms, conditions, and covenants of that certain written Lease dated
August 6, 1987, and the Lease Amendment dated March 22, 1989 by Landlord and
Tenant's predecessor in interest, Gradison & Company, a Delaware corporation
(collectively referred to as the "Lease"), for the lease of office space in the
building commonly known as the 580 Building, 580 Walnut Street, Cincinnati,
Ohio. The premises currently leased by Tenant are more particularly described on
Exhibit "A" attached hereto and made a part hereof (the "Leased Premises").
B. Landlord and Tenant desire to amend the Lease as herein provided.
NOW THEREFORE, in consideration of the agreements of the parties contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Landlord and Tenant agree as follows:
1. POSSESSION. Tenant warrants that Tenant has accepted and is now in the
possession of the Leased Premises and the Lease is valid and presently in full
force and effect.
2. USE. Tenant confirms that the Leased Premises are used for general
office purposes and that no toxic or hazardous materials will be stored or used
on the Leased Premises other than normal cleaning and related products typically
used in general office setting that are not in violation of applicable
governmental rules or regulations.
3. TERM. The current term of the Lease expires July 1, 1998. The parties
agree however that the extension term shall become effective on July 1, 1996
(the "Extension Term Commencement Date") and terminate on June 30, 2008, unless
sooner terminated as provided in the Lease (the "Extension Term").
4. DEMISED PREMISES. The Leased Premises for purposes of this Lease shall
be the area shown on Exhibit "A" which shall be deemed to consist of the
following leasable square footage:
First Floor - 29,568 rentable square feet;
Second Floor - 14,126 rentable square feet; and
Sky Walk - 761 rentable square feet.
<PAGE> 18
Effective July 1, 1998, Tenant shall also lease from Landlord the
"Expansion Space" consisting of 5,081 rentable square feet located on the Second
Floor, East Tower of the Building. After addition of the Expansion Space, the
term "Leased Premises" as used herein shall be deemed to include the Expansion
Space, and the rentable area of the Premises shall be increased by the rentable
area of the Expansion Space and Tenant's proportionate share shall be increased
to account for the increase in the rentable area of the Leased Premises.
Landlord shall provide Tenant with written notice of the exact location of the
Expansion Space on or before March 31, 1998. Landlord will provide Tenant a
finish allowance for the Expansion Space of the lesser of (1) $20.00 per
rentable square foot, or (2) the actual cost of construction of such leasehold
improvement work as Tenant may elect to perform, including the cost of
architectural and mechanical drawings for such work. Such work shall be
performed pursuant to the Work Letter attached as Exhibit "B".
Notwithstanding the foregoing, Tenant hereby acknowledges that Landlord is
currently leasing the Expansion Space to another tenant in the building (the
"Existing Tenant") and the Existing Tenant's lease does not expire until
December 31, 2002. Landlord agrees to use good faith efforts to negotiate an
early termination of the Existing Tenant's lease as it relates to the Expansion
Space; provided, however, that if Landlord should be unable for any reason to
deliver possession of the Expansion Space on or prior to the proposed Expansion
Space commencement date, Landlord shall not be subject to any liability (except
as provided herein) for failure to so deliver possession and Landlord shall use
commercially reasonable efforts to deliver possession of the Expansion Space as
soon as reasonably practicable thereafter. Such failure to deliver possession
shall not affect the validity of the Lease or (except as provided herein) the
obligations of either Landlord or Tenant hereunder, or be construed to extend
the expiration of the term of the Lease (as extended hereby) either as to the
Expansion Space or the balance of the Premises; provided, however, that under
such circumstances, Rent shall not commence as to the Expansion Space until
Landlord does deliver possession of the Expansion Space. If Landlord is unable
to negotiate an early termination of Existing Tenant's Lease with respect to the
Expansion Space effective on or prior to the proposed Expansion Space
commencement date and Tenant is unable to negotiate an extension of the term of
its sublease [from the Existing Tenant] for space on the fourth floor of the
Building containing approximately 5,081 rentable square feet, then Landlord
shall deliver to Tenant, after reasonable notice by Tenant to Landlord,
temporary alternative office space in the building (the "Alternative Expansion
Space"), which Alternative Expansion Space shall be similar in size to the
Expansion Space, shall be at a location reasonably acceptable to Tenant or
accessible by the low-rise elevators, and shall be reasonably similar with
respect to condition and layout as the existing sublease space from the Existing
Tenant, until such time as Landlord is able to deliver possession of the
Expansion Space; provided, however, that under such circumstances, base rent
applicable to the Expansion Space shall not commence until Landlord delivers to
Tenant possession of the Expansion Space. Landlord agrees that no base rent
shall be due from Tenant to Landlord for such Alternative Expansion Space.
Provided that Tenant in fact moves into the Alternative Expansion Space, then,
upon delivery of the Expansion Space to Tenant, Tenant shall surrender to
Landlord the Alternative Expansion Space pursuant to the terms and provisions of
the Lease. Any retention of possession by Tenant of all or any part of the
Alternative Expansion Premises beyond a sixty (60) day period after Landlord's
delivery to Tenant of the Expansion Space shall be deemed a holding over under
Article XII of the Lease
<PAGE> 19
without the consent of Landlord thereby entitling Landlord to all of its rights
and remedies set forth in the Lease including base rent equal to the amount then
being paid by Tenant for the Leased Premises (i.e., 44,455 square feet). A
demise of the Alternative Expansion Space to Tenant shall be subject to all
terms and provisions of the Lease except as otherwise expressly set forth
herein. Provided that Tenant has in fact moved into the Alternative Expansion
Space, Landlord shall reimburse or credit Tenant for the amount that Tenant
reasonably expends to make the move to the Alternative Expansion Space. Such
reimbursement or rental credit shall be made no later than thirty (30) days
following the later of (i) Tenant's taking occupancy of the Alternative
Expansion Space and (ii) Landlord's receipt of invoices, bills, receipts and
such other documentation as is necessary to evidence the costs incurred by
Tenant in connection with such move. If Landlord is unable to deliver the
Expansion Space on or prior to the proposed Expansion Space commencement date
and Tenant is able to extend the term of the existing sublease with the Existing
Tenant, Tenant shall be entitled to a rent credit (the "Credit") equal to five
thousand, six hundred, ten and 27/100 dollars ($5,610.27) per month up until
such time as Landlord delivers the Expansion Space to Tenant.
5. Renewal Option.
---------------
a. Tenant shall have two options (each, a "Renewal Option") to renew
the Term as extended hereunder with respect to all (but not less than all) of
the Leased Premises, including all Expansion Space, of the Term for two
additional terms, (each, a "Renewal Term") of five (5) years each, commencing in
the case of the first Renewal Term on the day immediately following the
expiration date of the Extension Term and commencing in the case of the second
Renewal Term on the day immediately following the expiration date of the first
Renewal Term, under the following terms and conditions:
i) Tenant must give Landlord written notice of its election to
exercise the first Renewal Option no earlier than the date which is fifteen (15)
months prior to the expiration date of the Extension Term and no later than the
date which is twelve (12) months prior to the expiration date of the Extension
Term;
ii) Tenant must have exercised the first Renewal Option and
Tenant must give Landlord written notice of its election to exercise its second
Renewal Option no earlier than the date which is fifteen (15) months prior to
the expiration date of the first Renewal Term and no later than the date which
is twelve (12) months prior to the expiration date of the first Renewal Term;
iii) Tenant is not in default beyond the expiration of any
cure periods provided for in the Lease either on the date Tenant exercises the
Renewal Option or at any time through and including the proposed commencement
date of the Renewal Term.
b. If Tenant timely and properly exercises a Renewal Option in
accordance with the provisions of this Section:
<PAGE> 20
i) The Rent payable for the Renewal Term shall be based on the
then prevailing rental rate for similar space in similar Class A buildings in
Downtown Cincinnati. For the purposes of the preceding sentence, "prevailing
rental rate" shall take into account any free rent, tenant improvement allowance
and other concessions or expenses paid by the owner on Tenant's behalf as are
being given in the market to tenants comparable to Tenant for renewal leases of
comparable office space in Downtown Cincinnati, but shall assume that such space
is being taken on an "as-Is" basis without any tenant improvements being
provided or paid for by Landlord.
The prevailing rental rate shall assume that the Base Year shall change
to the year of the commencement of each Renewal Term. If Tenant timely and
properly exercises a Renewal Option, Landlord agrees to give Tenant written
notice setting forth the prevailing rental rate ("Landlord's Renewal Proposal"),
which notice shall be given within 30 days after receipt of notice from Tenant
exercising a Renewal Option.
Tenant shall have 30 days after receiving Landlord's Renewal Proposal
to accept said offer. If Tenant does not accept Landlord's Renewal Proposal, the
parties shall negotiate in good faith for 30 days to reach an agreement. If
after 30 days an agreement has not been reached (the "Rejection Date"), the
prevailing rental rate shall be determined in accordance with Exhibit "D".
ii) Tenant shall have no further options to renew the current
Term of this Lease beyond the expiration date of the Renewal Terms.
iii) Landlord shall not be obligated to perform any leasehold
improvement work in the Leased Premises or give Tenant an allowance for any such
work.
iv) If Tenant exercises a Renewal Option, Landlord and Tenant
shall execute and deliver an amendment to this Lease reflecting the lease of the
Premises by Landlord to Tenant for such Renewal Term on the terms provided
above, which shall be executed and delivered prior to the commencement date of
such Renewal Term.
v) The Renewal Options shall automatically terminate and
become null and void and of no further force or effect upon the earlier to occur
of: (1) the expiration or termination of this Lease; (2) the termination of the
Tenant's right to possession of the Premises; (3) the assignment of this Lease
by Tenant (to a party other than an affiliate of Tenant, unless Landlord has
expressly consented to such assignment in accordance with the Lease and provided
such assignment or sublease is 5,000 square feet or less); (4) the sublease by
Tenant of any or all of the Premises (to a party other than an affiliate of
Tenant, unless Landlord has expressly consented to such sublease in accordance
with the Lease and provided such assignment or sublease is 5,000 square feet or
less); or (5) the failure of Tenant to timely or properly exercise a Renewal
Option; or (6) the default by Tenant which remains uncured beyond the expiration
of any cure periods provided for in the Lease.
<PAGE> 21
vi) Except as otherwise provided herein, all of the terms and
provisions of this Lease shall remain the same and in full force and effect
during the Renewal Terms.
6. BASE RENT. First paragraph of Article 3 of the original Lease
entitled "Rental" shall be modified as follows:
<TABLE>
<CAPTION>
Base Rent Monthly
Months Per Square Foot Base Rent
------ --------------- ---------
<S> <C> <C>
July 1, 1996 - $17.00 per rentable sq. ft. $62,977.92
June 30, 2001
July 1, 2001 - $18.50 per rentable sq. ft. $68,534.79
June 30, 2006
July 1, 2006 - $20.00 per rentable sq. ft. $74,091.67
June 30, 2008
</TABLE>
Effective July 1, 1998, or upon occupancy of Expansion Space pursuant to
paragraph 5 of this Amendment, the Monthly Base Rent shall be increased by the
amount of the square footage of the Expansion Space (which shall be determined
in accordance with BOMA guidelines and agreed upon by Landlord and Tenant)
multiplied by the Base Rent Per Square Foot.
Rent shall be paid in advance on the first day of each calendar month
during the term hereof without any setoff or counterclaim whatsoever. All
payments shall be made to 580 Walnut Partners, c/o Heitman Ohio Management Inc.,
580 Building, 580 Walnut Street, Cincinnati, Ohio 45202 or such other person or
firm or other place as may from time to time be designated by Landlord.
7. BASE RENT ABATEMENT. Notwithstanding the foregoing, (a) Monthly Base
Rent shall abate for the first month of the Extension Term (or July, 1996) and
(b) $68,534.79 of Monthly Base Rent shall abate for the sixty-first (61st) month
(or July, 2001); provided, however, that if at any time during the Term of this
Lease Tenant fails to cure a default within the applicable cure period under
this Lease, then within ten (10) days after request by Landlord, Tenant shall
pay to Landlord an amount equal to the product of: (1) any and all Monthly Base
Rent previously abated; times (2) a fraction, the numerator of which shall be
the remaining number of months in the Term at such time and the denominator of
which shall be 120. The abatement of Monthly Base Rent provided herein shall not
relieve Tenant from the performance of Tenant's other obligations under this
Lease, including the obligation to pay on a timely basis all Rent Adjustments
and all other additional rent and other obligations under the Lease, which shall
become due and payable during the Term.
8. OPERATING EXPENSES. Effective July 1, 1996 (i.e. the Extension Term
Commencement Date), for purposes of Article 4 of the Lease, the Base Period for
"Operating Expenses" shall be modified to be defined as the calendar year 1996.
Tenant's proportionate
<PAGE> 22
share of the increase in Operating Expenses shall be adjusted in 1998 when
Tenant leases the Expansion Space.
9. TENANT IMPROVEMENT ALLOWANCE. In addition to the Expansion Space
Finish Allowances provided for in Paragraph 4 hereof the Landlord will provide a
Tenant Improvement Allowance of ($593,752.00) to be used for work or other
expenditures related to the Leased Premises at Tenant's full discretion. The
Tenant Improvement Allowance will be paid in three (3) installments. The first
installment of $119,056.00 will be paid within thirty (30) days of full
execution of this Second Amendment to Lease. The second installment of
$355,640.00 will be paid on or before December 31, 1996. The third installment
of $119,056.00 will be paid on or before July 1, 1998. Notwithstanding the
foregoing, if Tenant is in default beyond any applicable cure period as provided
for in the Lease at the time the installments are due and owing, Tenant shall
not be entitled to the same.
10. REFURBISHMENT ALLOWANCE. Pursuant to the Work Letter Agreement
attached hereto as Exhibit B and subject to the terms and conditions thereof,
Landlord agrees to provide a Refurbishment Allowance equal to the lesser of: (1)
$8,663.00, or (2) the actual cost of construction, to refurbish the first floor
common areas.
Pursuant to the Work Letter Agreement attached hereto as Exhibit B and
subject to the terms and conditions thereof, Landlord agrees to provide a
Refurbishment Allowance to Tenant to reimburse prior work performed by Tenant
during the calendar year 2002 equal to the lesser of: (1) $5.00 per square foot
($222,275.00) of the original 44,455 square feet of the Leased Premises; or (2)
the actual cost of Tenant's construction refurbishment.
11. LANDLORD WORK. The following construction work shall be completed by
Landlord:
a. Landlord agrees to spend up to $20,000.00 to redecorate the common
area on the second floor prior to Tenant taking possession of the Expansion
Space on July 1, 1998. Tenant reserves the right to add additional dollars to
the above amount to upgrade the finishes consistent with and to complement
Tenant's existing finishes on the second floor. The scope of Landlord's work
shall include flooring, wall covering, paint and sconce lighting in the elevator
lobby and corridor leading past the freight elevator. All plans shall be subject
to Landlord's final approval.
b. Landlord agrees to remodel at Landlord's expense the restrooms on the
first and second floors within Tenant's space incorporating the standards and
finishes consistent with other recently remodeled restrooms within the building
and as more specifically stated in Exhibit C. The restrooms shall be
substantially completed by the end of 1996 subject to Force Majeure.
Specifically, the following restrooms shall be remodeled:
Floor Tower Restrooms
----- ----- ---------
1 East 1 Mens, 1 Womens
1 West 1 Mens, 1 Womens
2 West 1 Mens, 1 Womens
<PAGE> 23
12. SIGNAGE. Landlord and Tenant agree at this time that Landlord is not
able to provide exterior signs for the Tenant's business. However, if during the
term of this Lease, or any extension or renewal thereof, Landlord shall add
additional exterior signage for the office tenants of the Building, or for the
retail tenants located on the skywalk level of the Building (other than for the
Building's anchor tenant), Tenant shall have the right to add Tenant's name to
such signage subject to the reasonable rules and restrictions of Landlord and
plan approval.
13. PARKING. Tenant shall have the right to use an additional ten (10)
parking spaces in the 580 Garage. The total number of Tenant parking spaces
shall be thirty-four (34). In addition, the right to an additional four (4)
spaces shall be available upon Tenant taking possession of the Expansion Space.
All such parking shall be made available to Tenant at market rates and subject
to rules and regulations of the garage from time to time.
14. SKYWALK SPACE. Tenant shall have a one time option to terminate the
761 rentable square foot skywalk space effective July 1, 2003 provided Tenant
gives Landlord written notice twelve (12) months prior to such termination date,
time being of the essence.
15. RIGHT OF FIRST REFUSAL TO LEASE ADDITIONAL SPACE. Tenant shall have
the right of first refusal to lease any additional space on the second and third
floor of the Building ("Additional Space") that may become available for lease
at any time during the Term of this Lease, as follows: If Landlord has
Additional Space available and receives a bona fide offer to lease the
Additional Space from a third party (an "Offer"), it shall send written notice
to Tenant. The notice shall (i) identify the Additional Space and (li) set forth
the terms of the Offer. Within 10 days after receipt of Landlord's notice,
Tenant shall reply by written notice either accepting the Additional Space on
the terms set forth in the Offer or rejecting the same. Failure to respond
within the 10-day period shall constitute a rejection of the Additional Space.
If Tenant accepts the Additional Space on the terms set forth in the initial
offer, in the manner set forth above, the Additional Space shall be added to the
Premises by an amendment to this Lease which shall include an adjustment of
Tenant's proportionate share of Operating Expenses and such other changes as may
be appropriate. If Tenant does not accept the Additional Space, Landlord may
lease that particular Additional Space to any other party, for a period of 360
days after delivery of the offer to Tenant, on terms not substantially more
favorable than those contained in the Offer, without being required to offer the
same to Tenant pursuant to this Section.
16. LIMITATION OF LIABILITY. Notwithstanding anything to the contrary
contained in the Lease, or this Amendment to Lease or in any Riders or Addenda
thereto attached (collectively the "Lease Documents"), it is expressly
understood and agreed by and between the parties hereto that:
a. The recourse of Tenant or its successors or assigns against Landlord
with respect to the alleged breach by or on the part of Landlord of any
representation, warranty, covenant, undertaking or agreement contained in any of
the Lease Documents (collectively, "Landlord's Lease Undertakings") shall extend
only to Landlord's interest in the real estate of which the Premises demised
under the Lease Documents are a part ("Landlord's Real Estate") and not to any
other assets of Landlord or of its constituent partners;
<PAGE> 24
b. Neither Heitman/JMB Advisory Corporation nor Heitman Properties Ltd.
nor Heitman Ohio Management Inc. nor any of their respective directors,
officers, employees or agents shall have any personal liability whatsoever with
respect to any breach by Landlord of any of Landlord's Lease Undertakings; and
c. Except to the extent of Landlord's interest in Landlord's Real
Estate, no personal liability or personal responsibility of any sort with
respect to any of Landlord's Lease Undertakings is assumed by, or shall at any
time be asserted or enforceable against, Landlord, its constituent partners,
Heitman/JMB Advisory Corporation, Heitman Properties Ltd. or Heitman Ohio
Management Inc. or against any of their respective directors, officers,
employees, agents, constituent partners, beneficiaries, trustees or
representatives.
17. TENANT'S OFFSET RIGHT. Landlord and Tenant hereby agree that,
notwithstanding anything to the contrary contained in the Lease or this
Amendment and provided Tenant is not then in default under the terms of the
Lease, in the event Landlord shall fail to make any payment of the Expansion
Space Finish Allowance described in Section 4 hereof, the Tenant Improvement
Allowance described in Section 9 hereof, or the Refurbishment Allowance
described in Section 10 hereof, Tenant shall have the right, after thirty (30)
days prior notice to Landlord and Landlord's continued failure to make payment
of such amount, to set off against any rent payment due hereunder or under the
Lease the amount which Landlord has failed to pay.
18. LEASING BROKER. Tenant warrants that it has had no dealings with any
broker or agent in connection with this Amendment to lease other than Heitman
Ohio Management Inc. and Weber, Wood & Medinger, Inc. Landlord agrees to pay any
commissions owing to Heitman Ohio Management Inc. Tenant Agrees to pay any
commissions owing to Weber, Wood & Medinger, Inc. Tenant covenants to pay, hold
harmless and indemnify Landlord from and against any and all costs, expenses,
or liability for any compensation, commission, and charges claimed by Weber,
Wood & Medinger, Inc. or any other broker or agent (other than Heitman Ohio
Management Inc.) with respect to this Lease or the negotiation thereof with whom
Tenant had dealings.
19. DEFINED TERMS. Except as defined herein, all words and phrases which
are defined in the Lease shall have the same meaning in this Amendment to Lease
as are ascribed to such words and phrases in the Lease.
20. ENTIRE AGREEMENT. Except as set forth in this Amendment to Lease,
all other terms and conditions contained in the Lease are hereby affirmed and or
reaffirmed, and shall remain in full force and effect.
<PAGE> 25
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Lease as of the day and year first above written.
TENANT:
Acknowledged and signed McDonald & Company Securities, Inc.,
in the presence of: a Delaware Corporation
/s/ Sean C. Beckstrom BY: /s/ Robert W. Green
- ---------------------------- ---------------------
Printed: Sean C. Beckstrom
/s/ Jeff Hopkins ITS: Senior V.P.
- --------------------------- --------------------
Printed: Jeff Hopkins
LANDLORD:
580 Walnut Partners, an Illinois
general partnership
BY: HEITMAN/JMB ADVISORY
CORPORATION, an Illinois
Acknowledged and signed corporation, its duly authorized agent
in the presence of: and attorney-in-fact.
/s/ Eva Kovacs BY: ??
- --------------------------- ----------------------
Printed: Eva Kovacs
/s/ Pat Grise ITS: VICE PRESIDENT
- --------------------------- ---------------------
Printed: Pat Grise
<PAGE> 26
STATE OF Illinois )
---------------
)ss.
COUNTY OF Cuyahoga )
---------------
The foregoing instrument was acknowledged before me this 7th day of
June, 1996 by Herbert W. Kuchak of Heitman/JMB Advisory Corporation, an Illinois
corporation, the duly authorized agent and attorney-in-fact of 580 Walnut
Partners, an Illinois general partnership, on behalf of the partnership.
/s/ Mayra I. Rodriguez "OFFICIAL SEAL"
-------------------------- MAYRA I. RODRIGUEZ
Notary Public Notary Public, State of Illinois
My Commission Expires 8/5/97
STATE OF Ohio )
------------
)ss.
COUNTY OF Cuyahoga )
-----------
The foregoing instrument was acknowledged before me this 21st day of
May, 1996 by Robert W. Green of McDonald & Company Securities, Inc, a Delaware
corporation, on behalf of the corporation.
/s/ Laura Basinger
--------------------
Notary Public
LAURA A. BASINGER
Notary Public - State of Ohio
Mv Commission Expires April 11, 1999
<PAGE> 27
EXHIBIT "A"
-----------
[GRAPHIC]
580 Walnut Street
Cincinnati, Ohio
1st Floor
[Logo]
HEITMAN PROPERTIES
Square footage, as a designated herein, is only used for
purpose of rent and expense allocation. The
rentable square footage is determined in accordance
with market and industry standards at the time of the
Lease
Landlord does not represent that the information
provided reflects all existing conditions and dimensions
Exhibit "A"
-----------
-1-
<PAGE> 28
EXHIBIT "A"
-----------
[GRAPHIC]
580 Walnut Street
Cincinnati, Ohio
2nd Floor
[logo]
HEITMAN PROPERTIES
Square footage, as a designated herein, is only used for
purpose of rent and expense allocation. The
rentable square footage is determined in accordance
with market and industry standards at the time of the
Lease
Landlord does not represent that the information
provided reflects all existing conditions and dimensions
Exhibit "A"
-----------
-2-
<PAGE> 29
EXHIBIT "A"
-----------
[GRAPHIC]
580 Walnut Street
Cincinnati, Ohio
Walkway Level
[Logo]
HEITMAN PROPERTIES
Square footage, as a designated herein, is only used for
purpose of rent and expense allocation. The
rentable square footage is determined in accordance
with market and industry standards at the time of the
Lease
Landlord does not represent that the information
provided reflects all existing conditions and dimensions
Exhibit "A"
-----------
-3-
<PAGE> 30
EXHIBIT B
WORK LETTER AGREEMENT
---------------------
[Tenant Performs Work]
This Work Letter Agreement ("Work Letter") is execute
simultaneously with that certain Office Lease (the "Lease") between MCDONALD &
COMPANY SECURITIES, INC., A DELAWARE corporation as "Tenant" and 580 WALNUT
PARTNERS, an Illinois general partnership, as "Landlord", relating to demised
premises ("Premises") at the building commonly known as 580 WALNUT BUILDING,
Cincinnati, Ohio (the "Building"), which Premises are more fully identified in
the Lease. Capitalized terms used herein, unless otherwise defined in this Work
Letter Agreement, shall have the respective meanings ascribed to them in the
Lease.
For and in consideration of the agreement to lease the Premises
and the mutual covenants contained herein and in the Lease, Landlord and Tenant
hereby agree as follows:
1. WORK. Tenant, at its sole cost and expense, shall perform, or cause
to be performed. the work (the "Work") in the Premises provided for in the
Approved Plans (as defined in Paragraph 2 hereof). Subject to Tenant's
satisfaction of the conditions specified in this work letter Agreement, Tenant
shall be entitled to Landlord's Contribution (as defined in Paragraph 8[b]
below.
2. PRE-CONSTRUCTION ACTIVITIES.
(a) On or before thirty (30) days prior to Work, Tenant shall submit
the following information and items to Landlord for Landlord's review and
approval:
(i) A detailed critical path construction schedule containing
the major components of the Work and the time required for each, including the
scheduled commencement date of construction of the Work, milestone dates and the
estimated date of completion of construction.
(ii) An itemized statement of estimated construction cost,
including fees for permits and architectural and engineering fees.
(iii) Evidence satisfactory to Landlord in all respects of
Tenant's ability to pay the cost of the Work as and when payments become due.
(iv) The names and addresses of Tenant's contractors (and said
contractor's subcontractors) and materialmen to be engaged by Tenant for the
Work (individually, a "Tenant Contractor," and collectively, "Tenant's
Contractors"). Landlord has the right to approve or disapprove all or any one or
more of Tenant's Contractors. Landlord may, at its election, designate a list of
approved contractors for performance of those portions of work involving
electrical, mechanical, plumbing, heating, air conditioning or life safety
systems, from which Tenant must select its contractors for such designated
portions of work.
(v) Certified copies of insurance policies or certificates of
insurance as hereinafter described. Tenant shall not permit Tenant's Contractors
to commence work until the required insurance has been obtained and certified
copies of policies or certificates have been delivered to Landlord.
(vi) Payment and performance bonds for all of Tenant's Contractors
naming Landlord (or an agent, designee or representative appointed by Landlord's
written notice to Tenant given prior to Tenant's procurement of paid bonds) as a
dual obligee.
(vii) The Plans (as hereinafter defined) for the Work, which
Plans shall be subject to Landlord's approval in accordance with Paragraph 2(b)
below.
Tenant will update such information and items by notice to
Landlord of any changes.
EXHIBIT B
---------
-1-
11 22 93
<PAGE> 31
(b) As used herein the term "Approved Plans" shall mean the Plans (as
hereinafter defined), as and when approved in writing by Landlord. As used
herein, the term "Plans" shall mean the full and detailed architectural and
engineering plans and specifications covering the Work (including, without
limitation, architectural, mechanical and electrical working drawings for the
Work). The Plans shall be subject to Landlord's approval and the approval of all
local governmental authorities requiring approval of the work and/or the
Approved Plan. Landlord shall give its approval or disapproval (giving general
reasons in case of disapproval) of the Plans within fifteen ( 15 ) days after
their delivery to Landlord. Landlord agrees not to unreasonably withhold its
approval of said Plans; provided, however, that Landlord shall not be deemed to
have acted unreasonably if it withholds its approval of the Plans because, in
Landlord's reasonable opinion: the Work as shown in the Plans is likely to
adversely affect Building systems, the structure of the Building or the safety
of the Building and/or its occupants; the Work as shown on the Plans might
impair Landlord's ability to furnish services to Tenant or other tenants; the
Work would increase the cost of operating the Building; the Work would violate
any governmental laws, rules or ordinances (or interpretations thereof); the
Work contains or uses hazardous or toxic materials or substances; the Work would
adversely affect the appearance of the Building; the Work might adversely affect
another tenant's premises; or the Work is prohibited by any mortgage or trust
deed encumbering the Building. The foregoing reasons, however, shall not be
exclusive of the reasons for which Landlord may withhold consent, whether or not
such other reasons are similar or dissimilar to the foregoing. If Landlord
notifies Tenant that changes are required to the final Plans submitted by
Tenant, Tenant shall, within three (3) business days thereafter, submit to
Landlord, for its approval, the Plans amended in accordance with the changes so
required. The Plans shall also be revised, and the Work shall be changed, all at
Tenant's cost and expense, to incorporate any work required in the Premises by
any local governmental field inspector. Landlord's approval of the Plans shall
in no way be deemed to be (i) an acceptance or approval of any element therein
contained which is in violation of any applicable laws, ordinances, regulations
or other governmental requirements, or (ii) an assurance that work done pursuant
to the Approved Plans will comply with all applicable laws (or with the
interpretations thereof) or satisfy Tenant's objectives and needs.
(c) No Work shall be undertaken or commenced by Tenant in the Premises
until (i) Tenant has delivered, and Landlord has approved, all items set forth
in Paragraph 2(a) above, (ii) all necessary building permits have been applied
for and obtained by Tenant, and (iii) proper provision has been made by Tenant
for payment in full of the cost of the Work, which is satisfactory to Landlord
and which, if applicable, shall be in the form of the construction escrow
referred to in Paragraph 9 hereof or an irrevocable and unconditional letter of
credit issued by a bank acceptable to Landlord, which letter of credit shall be
satisfactory in all respects by Landlord.
(d) Tenant agrees to use its best efforts to obtain or cause to be
obtained a "no-lien" contract from each of Tenant's Contractors. Each such
no-lien Tenant's Contract shall be recorded in the Office of the Recorder of
Deeds of the county in which the Premises is located within 10 days after the
execution of such contract, and all subcontractors under each of such contracts
shall be given a notice of such no-lien contract before any labor or materials
is furnished by such subcontractor. If Tenant is unable to obtain or cause to be
obtained a no-lien contract from any proposed Tenant Contractor, Tenant shall
give written notice of such fact to Landlord and Landlord shall have the right
to disapprove the Tenant Contract with such Tenant Contractor, which disapproval
shall be deemed to be reasonable in all respects.
3. DELAYS. In the event Tenant fails to deliver or deliver in sufficient
and accurate detail the information required under Paragraph 2 above on or
before the respective dates specified in said Paragraph 2, or in the event
Tenant, for any reason, fails to complete the Work on or before the Commencement
Date, Tenant shall be responsible for Rent and all other obligations set forth
in the Lease from the Commencement Date regardless of the degree of completion
of the Work on such date, and no such delay in completion of the Work shall
relieve Tenant of any of its obligations under the Lease.
4. CHARGES AND FEES.
EXHIBIT B
---------
-2- 11 22 93
<PAGE> 32
5. CHANGE ORDERS. All changes to the Approved Plans requested by Tenant
must be approved by Landlord in advance of the implementation of such changes as
part of the Work. All delays caused by Tenant-initiated change orders,
including, without limitation, any stoppage of work during the change order
review process, are solely the responsibility of Tenant and shall cause no delay
in the commencement of the Lease or the Rent and other obligations therein set
forth. All increases in the cost of the Work resulting from such change orders
shall be borne by Tenant.
6. STANDARDS OF DESIGN AND CONSTRUCTION AND CONDITIONS OF TENANT'S
PERFORMANCE. All work done in or upon the Premises by Tenant shall be done
according to the standards set forth in this Paragraph 6, except as the same may
be modified in the Approved Plans approved by or on behalf of Landlord and
Tenant.
(a) Tenant's Approved Plans and all design and construction of the Work
shall comply with all applicable statutes, ordinances, regulations, laws, codes
and industry standards, including, but not limited to, requirements of
Landlord's fire insurance underwriters.
(b) Tenant shall, at its own cost and expense, obtain all required
building permits and occupancy permits. Tenant's failure to obtain such permits
shall not cause a delay in the commencement of the Term or the obligation to pay
Rent or any other obligations set forth in the Lease.
(c) Tenant's Contractors shall be licensed contractors, possessing good
labor relations, capable of performing quality workmanship and working in
harmony with Landlord's contractors and subcontractors and with other
contractors and subcontractors in the Building. All work shall be coordinated
with any other construction or other work in the Building in order not to
adversely affect construction work being performed by or for Landlord or its
tenants.
(d) Landlord shall have the right, but not the obligation, to perform,
on behalf of and for the account of Tenant, subject to reimbursement by Tenant,
any work which pertains to patching of the Work and other work in the Building.
(e) Tenant shall use only new, first-class materials in the Work, except
where explicitly shown in the Approved Plans. All Work shall be done in a good
and workmanlike manner. Tenant shall obtain contractors' warranties of at least
one (1) year duration from the completion of the Work against defects in
workmanship and materials on all work performed and equipment installed in the
Premises as part of the Work.
(f) Tenant and Tenant's Contractors shall make all efforts and take all
steps appropriate to assure that all construction activities undertaken comport
with the reasonable expectations of all tenants and other occupants of a
fully-occupied (or substantially fully occupied) first-class office building and
do not unreasonably interfere with the operation of the Building or with other
tenants and occupants of the Building. In any event, Tenant shall comply with
all reasonable rules and regulations existing from time to time at the Building.
Tenant and Tenant's Contractors shall take all precautionary steps to minimize
dust, noise and construction traffic, and to protect their facilities and the
facilities of others affected by the Work and to properly police same.
Construction equipment and materials are to be kept within the Premises and
delivery and loading of equipment and materials shall be done at such locations
and at such time as Landlord shall direct so as not to burden the construction
or operation of the Building. If and as required by Landlord, the Premises shall
be sealed off from the balance of the office space on the floor(s) containing
the Premises so as to minimize the dispersement of dirt, debris and noise.
(g) Landlord shall have the right to order Tenant or any of Tenant's
Contractors who violate the requirements imposed on Tenant or Tenant's
Contractors in performing work to cease work and remove its equipment and
employees from the Building. No such action by
EXHIBIT B
---------
-3-
11 22 93
<PAGE> 33
Landlord shall delay the commencement of the Lease or the obligation to pay Rent
or any other obligations therein set forth.
(h) Utility costs or charges for any service (including HVAC, hoisting
or freight elevator and the like) to the Premises shall be the responsibility of
Tenant from the date Tenant is obligated to commence or commences the Work and
shall be paid for by Tenant at Landlord's standard rates then in effect. Tenant
shall apply and pay for all utility meters required. Tenant shall pay for all
support services provided by Landlord's contractors at Tenant's request or at
Landlord's discretion resulting from breaches or defaults by Tenant under this
Work Letter Agreement. All use of freight elevators is subject to scheduling by
Landlord and the rules and regulations of the Building. Tenant shall arrange and
pay for removal of construction debris and shall not place debris in the
Building's waste containers. If required by Landlord, Tenant shall sort and
separate its waste and debris for recycling and/or environmental law compliance
purposes.
(i) Tenant shall permit access to the Premises, and the Work shall be
subject to inspection, by Landlord and Landlord's architects, engineers,
contractors and other representatives, at all times during the period in which
the Work is being constructed and installed and following completion of the
Work.
(j) Tenant shall proceed with its work expeditiously, continuously and
efficiently, and shall use its best efforts to complete the same on or before
sixty (60) days after the date Landlord tenders possession of the Premises to
Tenant for the construction of the Work. Tenant shall notify Landlord upon
completion of the Work and shall furnish Landlord and Landlord's title insurance
company with such further documentation as may be necessary under Paragraphs 8
and 9 below.
(k) Tenant shall have no authority to deviate from the Approved Plans in
performance of the Work, except as authorized by Landlord and its designated
representative in writing. Tenant shall furnish to Landlord "as-built" drawings
of the Work within thirty (30) days after completion of the Work.
(l) Landlord shall have the right to run utility lines, pipes, conduits,
duct work and component parts of all mechanical and electrical systems where
necessary or desirable through the Premises, to repair, alter, replace or remove
the same, and to require Tenant to install and maintain proper access panels
thereto.
(m) Tenant shall impose on and enforce all applicable terms of this Work
Letter Agreement against Tenant's architect and Tenant's Contractors.
7. INSURANCE AND INDEMNIFICATION.
(a) In addition to any insurance which may be required under the Lease,
Tenant shall secure, pay for and maintain or cause Tenant's Contractors to
secure, pay for and maintain during the continuance of construction and
fixturing work within the Building or Premises. insurance in the following
minimum coverages and the following minimum limits of liability:
(i) Worker's Compensation and Employer's Liability Insurance with limits
of not less than $500,000.00, or such higher amounts as may be required from
time to time by any Employee Benefit Acts or other statutes applicable where the
work is to be performed, and in any event sufficient to protect Tenant's
Contractors from liability under the aforementioned acts.
(ii) Comprehensive General Liability Insurance (including Contractors'
Protective Liability) in an amount not less than $1,000,000.00 per occurrence,
whether involving bodily injury liability (or death resulting therefrom) or
property damage liability or a combination thereof with a minimum aggregate
limit of $2,000,000.00, and with umbrella coverage with limits not less than
$5,000,000.00. Such insurance shall provide for explosion and collapse,
completed operations coverage and broad form blanket contractual liability
coverage and shall insure Tenant's Contractors against any and all claims for
bodily injury, including death resulting therefrom, and damage to the property
of others and arising from
EXHIBIT B
---------
-4 - 11 22 93
<PAGE> 34
its operations under the contracts whether such operations are performed by
Tenant's Contractors or by anyone directly or indirectly employed by any of
them.
(iii) Comprehensive Automobile Liability Insurance, including the
ownership, maintenance and operation of any automotive equipment, owned, hired,
or non-owned in an amount not less than $500,000.00 for each person in one
accident, and $1,000,000.00 for injuries sustained by two or more persons in any
one accident and property damage liability in an amount not less than
$1,000,000.00 for each accident. Such insurance shall insure Tenant's
Contractors against any and all claims for bodily injury, including death
resulting therefrom, and damage to the property of others arising from its
operations under the contracts, whether such operations are performed by
Tenant's Contractors, or by anyone directly or indirectly employed by any of
them.
(iv) "All-risk" builder's risk insurance upon the entire Work to the
full insurable value thereof. This insurance shall include the interests of
Landlord and Tenant (and their respective contractors and subcontractors of any
tier to the extent of any insurable interest therein) in the Work and shall
insure against the perils of fire and extended coverage and shall include
"all-risk" builder's risk insurance for physical loss or damage including,
without duplication of coverage, theft vandalism and malicious mischief. If
portions of the Work are stored off the site of the Building or in transit to
said site are not covered under said "all-risk" builder's risk insurance, then
Tenant shall effect and maintain similar property insurance on such portions of
the Work. Any loss insured under said "all-risk" builder's risk insurance is to
be adjusted with Landlord and Tenant and made payable to Landlord, as trustee
for the insureds, as their interests may appear.
All policies (except the worker's compensation policy) shall be endorsed to
include as additional insured parties the parties listed on, or required by, the
Lease, Landlord's contractors, Landlord's architects, and their respective
beneficiaries, partners, directors. officers, employees and agents, and such
additional persons as Landlord may designate. The waiver of subrogation
provisions contained in the Lease shall apply to all insurance policies (except
the workmen's compensation policy) to be obtained by Tenant pursuant to this
paragraph. The insurance policy endorsements shall also provide that all
additional insured parties shall be given thirty (30) days' prior written notice
of any reduction, cancellation or non-renewal of coverage (except that ten (10)
days' notice shall be sufficient in the case of cancellation for non-payment of
premium) and shall provide that the insurance coverage afforded to the
additional insured parties thereunder shall be primary to any insurance carried
independently by said additional insured parties. Additionally, where
applicable. each policy shall contain a cross-liability and severability of
interest clause.
(b) Without limitation of the indemnification provisions contained in
the Lease, to the fullest extent permitted by law Tenant agrees to indemnify,
protect, defend and hold harmless Landlord, the parties listed, or required by,
the Lease to be named as additional insureds, Landlord's contractors, Landlord's
architects, and their respective beneficiaries, partners, directors, officers,
employees and agents, from and against all claims, liabilities. losses, damages
and expenses of whatever nature arising out of or in connection with the Work or
the entry of Tenant or Tenant's Contractors into the Building and the Premises,
including, without limitation, mechanic's liens, the cost of any repairs to the
Premises or Building necessitated by activities of Tenant or Tenant's
Contractors, bodily injury to persons or damage to the property of Tenant, its
employees, agents, invitees, licensees or others. It is understood and agreed
that the foregoing indemnity shall be in addition to the insurance requirements
set forth above and shall not be in discharge of or in substitution for same or
any other indemnity or insurance provision of the Lease.
8. LANDLORD'S CONTRIBUTION; EXCESS AMOUNTS.
(a) Upon completion of the Work, Tenant shall furnish Landlord with full
and final waivers of liens and contractors' affidavits and statements, in such
form as may be required by Landlord, Landlord's title insurance company and
Landlord's construction or permanent lender, if any, from all parties performing
labor or supplying materials or services in connection with the Work showing
that all of said parties have been compensated in full and waiving all liens in
connection with the Premises and Building. Tenant shall submit to
EXHIBIT B
---------
-5- 11 22 93
<PAGE> 35
Landlord a detailed breakdown of Tenant's total construction costs, together
with such evidence of payment as is reasonably satisfactory to Landlord.
(b) Upon completion of the Work and Tenant's satisfaction of all
requirements set forth in this Work Letter Agreement, Landlord shall make a
dollar contribution in the amount of $101,620.00 for the Expansion Space
described in Paragraph 4 and $222,275.00 and $8,663.00 for the Refurbishment
Allowance described in Paragraph 10 of this Amendment. ("Landlord's
Contribution") for application to the extent thereof to the cost of the Work.
If the cost of the Work exceeds Landlord's Contribution, Tenant shall have sole
responsibility for the payment of such excess cost. If the cost of the Work is
less than Landlord's Contribution, Tenant shall not be entitled to any payment
or credit for such excess amount. Notwithstanding anything herein to the
contrary, Landlord may deduct from Landlord's Contribution any amounts due to
Landlord or its architects or engineers under this Work Letter before
disbursing any other portion of Landlord's Contribution.
9. CONSTRUCTION ESCROW. Prior to commencement of any construction or
performance of any Work or payment to or by Tenant or to any of Tenant's
Contractors, Tenant shall, at Landlord's option, establish a construction escrow
or other payment procedure acceptable to Landlord and each holder of a mortgage
on the Building at a title insurance company designated by Landlord providing
for payment to Tenant's Contractors and payment of all other costs associated
with the Work as the Work progresses, upon the title insurance company's
satisfactory review of lien waivers and sworn statements from Tenant's
Contractors and other applicable parties and upon the title insurance company's
willingness to issue title insurance over mechanic's liens relating to Tenant's
contracts and the Work to the date of each draw; in the alternative, Landlord
may elect to have payments to Tenant's Contractors for the Work made through
Landlord's construction lender's escrow. Tenant shall pay for the Work when
required under its contracts for the Work and shall not permit the Premises or
the Building to become subject to any lien or claim of lien on account of labor,
material or services furnished to or for the benefit of Tenant. Tenant shall,
from time to time, deposit funds into the construction escrow or the Landlord's
construction lender's escrow, as the case may be, in amounts sufficient to pay
the costs of the Work. Tenant may not withdraw funds except to pay Tenant's
Contractors unless Landlord has consented to such withdrawal. The construction
escrow agreement shall contain the foregoing restriction on withdrawal of funds
by Tenant and shall also provide that if Tenant fails to pay for the Work when
due or if any mechanic's lien is filed in connection with the Work, Landlord
may use and withdraw the funds in the escrow to pay for the Work or remove the
lien without Tenant's consent. Tenant shall provide such contractor's
affidavits, tenant (owner) statements, partial and final waivers of lien,
architect's certificates and any additional documentation (including, without
limitation, Tenant or contractor personal undertakings) which may be requested
by Landlord, such title insurance company or any holder of a mortgage on the
Building in connection with said escrow or consistent with any other title
insurance requirements concerning the Work.
10. MISCELLANEOUS.
(a) If the Plans for the Work require the construction and installation
of more fire hose cabinets or telephone/electrical closets than the number
regularly provided by Landlord in the core of the Building in which the Premises
are located, Tenant agrees to pay all costs and expenses arising from the
construction and installation of such additional fire hose cabinets or
telephone/electrical closets.
(b) Time is of the essence of this Work Letter Agreement.
(c) Any person signing this Work Letter Agreement on behalf of Landlord
and Tenant warrants and represents he has authority to sign and deliver this
Work Letter Agreement and bind the party on behalf of which he has signed.
(d) If Tenant fails to make any payment relating to the Work as required
hereunder, Landlord, at its option, may complete the Work pursuant to the
Approved Plans and continue to hold Tenant liable for the costs thereof and all
other costs due to Landlord. Tenant's failure to pay any amounts owed by Tenant
hereunder when due or Tenant's failure to perform its obligations hereunder
shall also constitute a default under the Lease and Landlord shall have all the
rights and remedies granted to Landlord under the Lease for nonpayment of any
amounts owed thereunder or failure by Tenant to perform its obligations
thereunder.
EXHIBIT B
---------
-6- 11 22 93
<PAGE> 36
(e) Notices under this Work Letter shall be given in the same manner as
under the Lease.
(f) The liability of Landlord hereunder or under any amendment hereto or
any instrument or document executed in connection herewith (including, without
limitation, the Lease) shall be limited to and enforceable solely against
Landlord's interest in the Building.
(g) The headings set forth herein are for convenience only.
(h) This Work Letter sets forth the entire agreement of Tenant and
Landlord regarding the Work. This Work Letter may only be amended if in writing,
duly executed by both Landlord and Tenant.
(i) All amounts due from Tenant hereunder shall be deemed to be Rent due
under the Lease.
11. ON-SITE PROJECT MANAGER.
As a condition of Tenant's right to commence and perform the Work,
Tenant shall engage the services of an on-site project manager approved in
advance by and reasonably acceptable to Landlord, who will be charged with the
task of performing daily supervision of the Work. Such on-site manager shall be
familiar with all rules and regulations and procedures of the Building and all
personnel of the Building engaged directly or indirectly in the management,
operation and construction of the Building. Such on-site project manager shall
be accountable and responsible to Tenant and to Landlord and, where necessary,
shall serve as a liaison between Landlord and Tenant with respect to the Work.
The entire cost and expense of the on-site project manager shall be borne and
paid for by Tenant (subject to Tenant's right to use all or any part of
Landlord's Contribution to reimburse Tenant for the same.)
12. EXCULPATION OF LANDLORD AND HEITMAN.
Notwithstanding anything to the contrary contained in this Work Letter
Agreement, it is expressly understood and agreed by and between the parties
hereto that:
(a) The recourse of Tenant or its successors or assigns against
Landlord with respect to the alleged breach by or on the part of Landlord of any
representation, warranty, covenant, undertaking or agreement contained in this
Work Letter Agreement (collectively, "Landlord's Work Letter Undertakings")
shall extend only to Landlord's interest in the real estate of which the
Premises demised under this Lease Documents are a part (hereinafter, "Landlord's
Real Estate") and not to any other assets of Landlord or its constituent
partners or their respective officers, directors or shareholders; and
(b) Except to the extent of Landlord's interest in Landlord's Real
Estate, no personal liability or personal responsibility of any sort with
respect to any of Landlord's Work Letter Undertakings or any alleged breach
thereof is assumed by, or shall at any time be asserted or enforceable against,
Landlord, its constituent partners, Heitman/JMB Advisory Corporation, Heitman
Properties Ltd. or Heitman Ohio Management Inc., or against any of their
respective directors, officers, employees, agents, constituent partners,
beneficiaries, trustees or representatives.
EXHIBIT B
---------
-7- 11 22 93
<PAGE> 37
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of this
21st day of May, 1996.
LANDLORD:
580 WALNUT PARTNERS, an Illinois
general partnership
By: HEITMAN/JMB ADVISORY
CORPORATION, an Illinois
corporation, its duly authorized agent
and attorney-in-fact
By: ??
--------------------------------
Its: VICE PRESIDENT
-------------------------------
TENANT:
McDonald & Company Securities, Inc.,
-------------------------------------
a Delaware corporation
By: /s/ Robert W. Green
-------------------------------------
Its: Senior V.P.
-------------------------------------
EXHIBIT B
---------
-8- 11 22 93
<PAGE> 38
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of this 21st
day of May, 1996.
LANDLORD:
580 WALNUT PARTNERS, an Illinois
general partnership
By: HEITMAN/JMB ADVISORY CORPORATION,
an Illinois corporation, its duly
authorized agent and
attorney-in-fact
By: /s/ [Illegible]
----------------------------------
Its: Vice President
----------------------------------
TENANT:
McDonald & Company Securities, Inc.,
---------------------------------------
a Delaware corporation
By: /s/ Robert W. Green
----------------------------------
Robert W. Green
Its: Senior V.P.
----------------------------------
Senior V.P.
EXHIBIT B
---------
-8-
<PAGE> 39
EXHIBIT C
---------
RESTROOMS
580 WALNUT STREET BUILDING
SCOPE OF WORK
- - Remove and reinstall plumbing fixtures
- - Remove old ceramic tile and install new ceramic tile (wall and floor)
- - Reverse door swings
- - Drywall repairs (door reversal, tile removal)
- - Paint doors and frames
- - Wallcovering at restroom entrances
- - Remove old toilet partitions and provide new toilet partitions
- - Provide new toilet accessories
- - Provide Corian lavatory tops
- - General conditions and fee
Paint door frames and inside door: Benjamin Moore #1548
Wallcovering - entrance walls: J.M. Lynne Vescom - Luga
Main wall tile: Dahl tile - White Granite 2x2
Black, light gray accent colors
Main floor tile: Dahl tile - Light Gray
Countertops: Corian - Sierra Midnight (polished)
(The above finishes are subject to change and availability)
<PAGE> 40
EXHIBIT "D" TO SECOND AMENDMENT TO LEASE
----------------------------------------
Procedure for Determining Prevailing Rental Rate
------------------------------------------------
(a) If Landlord and Tenant fail to reach agreement pursuant to Section
5b of the Second Amendment to Lease, then within ten (10) days after (the
"Rejection Date") described in such Section, each party shall, at its sole
expense, select and retain a certified MAI appraiser, which appraiser is to have
at least five years of experience in the downtown Cincinnati office market and
shall notify the other party of its selection. Within twenty (20) days after
Landlord's Renewal Proposal is rejected by Tenant, the two (2) appraisers shall
meet and agree on the prevailing rental rate as of the first day of the next
Renewal Term and shall notify both parties of the determination. If the two (2)
appraisers cannot agree, both appraisers shall notify both parties of their
respective determination of the prevailing rental rate within thirty (30) days
after Landlord's Renewal Proposal is rejected by Tenant, and the average of the
two (2) appraisals shall be deemed to be the new prevailing rental rate during
the next Renewal Term. In the event that only one (1) party notifies the other
of its selection of its appraiser within the required ten (10) day period, the
new prevailing rental rate shall be determined by the one (1) appraiser so
selected. If neither party notifies the other of its selection within the
required ten (10) day period, Landlord's Renewal Proposal shall be the new
prevailing rental rate for the Renewal Term in question.
(b) Notwithstanding any provision in this Exhibit or the Second
Amendment to Lease to the contrary, if within ten (10) days after Tenant
receives written notice of the two appraisers' determinations of prevailing
rental rate Tenant notifies Landlord in writing that it is withdrawing its
exercise of the Renewal Option, the Lease shall terminate at the expiration of
the Expansion Term or Renewal Term then in effect and Tenant shall have no right
to renew or extend the Term of this Lease. If Tenant exercises its right under
this paragraph (b) to withdraw the exercise of its Renewal Option, Tenant shall
reimburse Landlord for the cost of Landlord's appraiser within fifteen (15) days
after submission by Landlord to Tenant of its appraiser's invoice.
<PAGE> 41
NOTICE TO PROSPECTIVE REAL ESTATE PURCHASERS/TENANTS
In Ohio, real estate licensees are required to disclose which party they
represent in a real estate transaction. Under Ohio law, a real estate licensee
is considered to be an agent of the owner of real estate unless there is an
agreement to the contrary and that agreement is disclosed to all parties.
Some of the duties of the licensee, as the agent of the owner, are to:
- Treat all parties to a transaction honestly
- Offer the property without regard to race, color, religion, sex,
ancestry, national origin or handicap
- Promote the best interest of the owner
- Obtain the best price for the owner
- Fully disclose to the owner all facts which might affect or influence a
decision
- Present all offers to the owner
As a buyer, if you choose to have a real estate broker represent you as your
agent, you should enter into a written contract that clearly establishes the
obligations of both you and your agent and specifies how your agent will be
compensated.
Under Ohio law, the disclosure statement below must be submitted to the
prospective purchaser/tenant in each transaction. This form has been approved
by the Ohio Real Estate Commission for use by Ohio real estate licensees.
Please sign below.
- --------------------------------------------------------------------------------
AGENCY DISCLOSURE STATEMENT
The listing broker and all agents associated with the listing broker represent
the owner.
The Weber Wood Medinger Inc. and James E. Klements represent (please check
------------------- -----------------
(Selling Broker) (Selling Agent)
one): the purchaser/tenant X ; the owner .
--- ---
If a broker/agent is representing both the purchaser/tenant and the owner as a
dual agent, he/she must attach a copy of the agreement signed by the
purchaser/tenant and owner acknowledging their agreement to this arrangement.
By signing below, the parties confirm that they have received, read and
understood the information in this Agency Disclosure Form and that this form was
provided to them before signing a contract to purchase/lease real estate.
McDonald & Company Securities. Inc., Heitman Ohio Management Inc,,
a Delaware corporation as managing agent for 580 Walnut Partners
- ------------------------------------ -----------------------------------------
Purchaser/Tenant Date Owner Date
/s/ Robert W. Green 5/21/96 ??? 6/11/96
- ------------------------------------ -----------------------------------------
Purchaser/Tenant Date Owner Date
- --------------------------------------------------------------------------------
Any questions regarding the role or responsibilities of real estate brokers or
agents in Ohio can be directed to an attorney or to:
State of Ohio
Department of Commerce
Division of Real Estate
Telephone: In Ohio 1-800-344-4100 or in Columbus 614/466-4100
[GRAPHIC]
<PAGE> 1
Exhibit 11
STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS
- -----------------------------------------------
<TABLE>
<CAPTION>
Fiscal Three Months Ended Fiscal Six Months Ended
------------------------------- -------------------------------
Sept. 27, 1996 Sept. 29, 1995 Sept. 27, 1996 Sept. 29, 1995
-------------- -------------- ------------- --------------
<S> <C> <C> <C> <C>
PRIMARY
- -------
Average shares outstanding 8,928,000 8,963,000 8,953,000 8,971,000
Net effect of dilutive stock options -
based on the treasury stock method using
average market price 157,000 142,000 157,000 139,000
---------- ---------- ----------- ----------
TOTAL 9,085,000 9,105,000 9,110,000 9,110,000
========== ========== =========== ==========
Net income $5,273,000 $5,116,000 $11,731,000 $8,880,000
========== ========== =========== ==========
Net income per share $ .58 $ .56 $ 1.29 $ .97
========== ========== =========== ==========
FULLY DILUTED
- -------------
Average shares outstanding 8,928,000 8,963,000 8,953,000 8,963,000
Net effect of dilutive stock options -
based on the treasury stock method
using greater of average or period -
end market price 185,000 153,000 185,000 153,000
---------- ---------- ----------- ----------
TOTAL 9,113,000 9,116,000 9,138,000 9,116,000
========== ========== =========== ==========
Net income $5,273,000 $5,116,000 $11,731,000 $8,880,000
========== ========== =========== ==========
Net income per share $ .58 $ .56 $ 1.28 $ .97
========== ========== =========== ==========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> BD
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINACIAL INFORMATION EXTRACTED FROM CONSOLIDATED
STATEMENT OF FINANCIAL CONDITION - SEP-27-1996 AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAR-28-1997
<PERIOD-END> SEP-27-1996
<CASH> 4,622
<RECEIVABLES> 231,130
<SECURITIES-RESALE> 121,877
<SECURITIES-BORROWED> 0
<INSTRUMENTS-OWNED> 147,881
<PP&E> 18,565
<TOTAL-ASSETS> 588,650
<SHORT-TERM> 72,811
<PAYABLES> 67,632
<REPOS-SOLD> 122,118
<SECURITIES-LOANED> 0
<INSTRUMENTS-SOLD> 106,961
<LONG-TERM> 25,000
0
0
<COMMON> 11,733
<OTHER-SE> 128,505
<TOTAL-LIABILITY-AND-EQUITY> 588,650
<TRADING-REVENUE> 29,204
<INTEREST-DIVIDENDS> 9,274
<COMMISSIONS> 36,634
<INVESTMENT-BANKING-REVENUES> 37,192
<FEE-REVENUE> 11,601
<INTEREST-EXPENSE> 4,349
<COMPENSATION> 73,945
<INCOME-PRETAX> 18,331
<INCOME-PRE-EXTRAORDINARY> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 11,731
<EPS-PRIMARY> 1.29
<EPS-DILUTED> 1.29
</TABLE>
