<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1997
------------------
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: 1-9358
PETROLEUM HEAT AND POWER CO., INC.
-----------------------------------------------------
(Exact name of registrant as specified in its charter)
Minnesota 06-1183025
- ---------------------------------------- -----------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2187 Atlantic Street, Stamford, CT 06902
- ---------------------------------------- -----------------------------
(Address of principal executive Offices) (Zip Code)
Registrant's telephone number, including area code: (203) 325-5400
---------------
- ---------------------------------------------------------------------------
(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
--- ---
As of September 30, 1997 there were 23,538,243 shares of the Registrant's Class
A Common Stock, 11,228 shares of the Registrant's Class B Common Stock and
2,597,519 shares of the Registrant's Class C Common Stock outstanding.
<PAGE>
PETROLEUM HEAT AND POWER CO., INC. AND SUBSIDIARIES
INDEX TO FORM 10-Q
PAGE
PART 1 FINANCIAL INFORMATION:
Item 1 - Financial Statements
Condensed Consolidated Balance Sheets
September 30, 1997 and December 31, 1996 3
Condensed Consolidated Statements of Operations for the Three Months
Ended September 30, 1997 and September 30, 1996 and the Nine Months
Ended September 30, 1997 and September 30, 1996 4
Condensed Consolidated Statement of Changes in
Stockholders' Equity (Deficiency) for the
Nine Months Ended September 30, 1997 5
Condensed Consolidated Statements of Cash Flows for the
Nine Months Ended
September 30, 1997 and September 30, 1996 6
Notes to Condensed Consolidated Financial Statements 7 - 8
Item 2 - Management's Discussion and Analysis of
Financial Condition and Results of Operations 9 - 16
PART 2 OTHER INFORMATION:
Item 6 - Exhibits and reports on Form 8-K 17
Signature 18
<PAGE>
PETROLEUM HEAT AND POWER CO., INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(In thousands)
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
ASSETS 1997 1996
- ------ ------------- -----------
Current assets:
<S> <C> <C>
Cash and cash equivalents $ 13,806 $ 3,257
Restricted cash - 3,000
Accounts receivable (net of allowance of $1,988 and $1,088) 51,981 93,362
Inventories 13,008 22,084
Prepaid expenses 6,355 7,008
Notes receivable and other current assets 1,472 1,299
------- --------
Total current assets 86,622 130,010
------- --------
Property, plant and equipment - net 31,997 30,666
Intangible assets (net of accumulated amortization of $300,374 and $283,486)
Customer lists 73,939 77,778
Deferred charges and pension costs 26,309 25,718
------- --------
100,248 103,496
Investment in and advances to the Star Gas Partnership 23,967 29,907
Deferred gain on Star Gas Transaction (19,964) (19,964)
------- --------
4,003 9,943
------- --------
Other assets 1,048 910
------- --------
$223,918 $275,025
-------- --------
-------- --------
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIENCY)
Current liabilities:
Working capital borrowings $ - $ 22,000
Current maturities of long-term debt 2,698 3,047
Current maturities of redeemable preferred stock 4,167 4,167
Accounts payable 8,479 18,988
Customer credit balances 26,636 17,468
Unearned service contract revenue 14,645 15,388
Accrued expenses and other liabilities 24,583 30,859
------- --------
Total current liabilities 81,208 111,917
------- --------
Supplemental benefits and other liabilities 1,562 1,584
Pension plan obligation 7,568 7,587
Notes payable and other long-term debt 16,324 16,787
Senior notes payable 63,100 34,150
Subordinated notes payable 209,350 240,400
Redeemable preferred stock 34,167 8,333
Common stock redeemable at option of stockholder (124 Class A
and 31 Class C shares) 984 984
Note receivable from stockholder (984) (984)
Stockholders' equity (deficiency):
Class A common stock-par value $.10 per share; 40,000 shares
authorized, 23,415 and 22,931 shares outstanding 2,343 2,294
Class B common stock-par value $.10 per share; 6,500 shares
authorized, 11 shares outstanding 1 1
Class C common stock-par value $.10 per share; 5,000 shares
authorized, 2,567 shares outstanding 257 257
Additional paid-in capital 79,024 78,804
Deficit (264,921) (221,024)
Minimum pension liability adjustment (6,065) (6,065)
------- --------
Total stockholders' equity (deficiency) (189,361) (145,733)
------- --------
$223,918 $275,025
------- --------
------- --------
</TABLE>
See accompanying notes to condensed consolidated financial statements.
- 3 -
<PAGE>
PETROLEUM HEAT AND POWER CO., INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
(In thousands, except per share data) THREE MONTHS NINE MONTHS
ENDED SEPTEMBER 30, ENDED SEPTEMBER 30,
---------------------- ----------------------
1997 1996 1997 1996
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net sales $ 50,788 $ 51,060 $386,855 $422,060
Cost of sales 43,206 44,854 271,269 293,064
-------- -------- -------- --------
GROSS PROFIT 7,582 6,206 115,586 128,996
Selling, general and administrative expenses 25,069 24,909 75,103 76,863
Direct delivery expense 3,421 3,503 21,189 23,652
Restructuring charges - - 1,300 1,150
Corporate identity expenses 1,078 1,336 3,188 2,128
Pension curtailment 654 - 654 -
Amortization of customer lists 4,488 4,561 13,419 14,090
Depreciation of plant and equipment 1,801 1,664 5,352 5,053
Amortization of deferred charges 1,165 989 3,469 3,677
Provision for supplemental benefits 141 218 424 655
-------- -------- -------- --------
OPERATING INCOME (LOSS) (30,235) (30,974) (8,512) 1,728
Other income (expense):
Interest expense (8,432) (8,440) (25,581) (26,007)
Interest income 681 647 1,804 1,896
Other 27 (10) 65 1,837
-------- -------- -------- --------
Loss before income taxes, equity
interest and extraordinary item (37,959) (38,777) (32,224) (20,546)
Income taxes (benefit) - (50) 350 350
-------- -------- -------- --------
Loss before equity interest and
extraordinary item (37,959) (38,727) (32,574) (20,896)
Share of loss of Star Gas Partnership (2,357) (1,866) (1,808) (394)
-------- -------- -------- --------
Loss before extraordinary item (40,316) (40,593) (34,382) (21,290)
Extraordinary item-loss on early
extinguishment of debt - - - (6,414)
-------- -------- -------- --------
NET LOSS $(40,316) $(40,593) $(34,382) $ (27,704)
======== ======== ======== =======
Preferred Stock dividends (1,861) (1,195) (3,678) (2,389)
-------- -------- -------- --------
Net loss applicable to common stock $(42,177) $(41,788) $(38,060) $ (30,093)
======== ======== ======== =========
Loss before extraordinary item per common share:
Class A Common Stock $ (1.61) $ (1.63) $ (1.47) $ (.93)
Class B Common Stock - - - -
Class C Common Stock (1.61) (1.63) (1.47) (.93)
Extraordinary (loss) per common share:
Class A Common Stock $ - $ - $ - $ (.25)
Class B Common Stock - - - -
Class C Common Stock - - - (.25)
Net loss per common share:
Class A Common Stock $ (1.61) $ (1.63) $ (1.47) $ (1.18)
Class B Common Stock - - - -
Class C Common Stock (1.61) (1.63) (1.47) (1.18)
Cash dividends declared per common share:
Class A Common Stock $ .075 $ .15 $ .225 $ .45
Class B Common Stock - - - -
Class C Common Stock .075 .15 .225 .45
Weighted average number of common shares outstanding:
Class A Common Stock 23,538 23,021 23,339 22,939
Class B Common Stock 11 12 11 13
Class C Common Stock 2,598 2,598 2,598 2,598
</TABLE>
See accompanying notes to condensed consolidated financial statements.
- 4 -
<PAGE>
PETROLEUM HEAT AND POWER CO., INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIENCY)
(UNAUDITED)
NINE MONTHS ENDED SEPTEMBER 30, 1997
(IN THOUSANDS)
<TABLE>
<CAPTION>
COMMON STOCK
------------------------------------------------
CLASS A CLASS B CLASS C MINIMUM
---------------- -------------- --------------- ADDITIONAL PENSION
NO. OF NO. OF NO. OF PAID-IN LIABILITY
SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT ADJ. TOTAL
-------- ------- ------- ------- ------- ------- ---------- ----------- --------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE AT
DECEMBER 31, 1996 22,931 $2,294 11 $ 1 2,567 $ 257 $78,804 $(221,024) $(6,065) $(145,733)
NET LOSS (34,382) (34,382)
CASH DIVIDENDS
DECLARED AND PAID (7,554) (7,554)
CASH DIVIDENDS
PAYABLE (1,961) (1,961)
CLASS A COMMON
STOCK ISSUED
UNDER THE
DIVIDEND
REINVESTMENT PLAN 479 48 1,701 1,749
PREFERRED STOCK
OFFERING COSTS (1,678) (1,678)
OTHER 5 1 197 198
-------- ------- ------- ------- ------- ------- ---------- ----------- --------- ---------
BALANCE AT
SEPTEMBER 30, 1997 23,415 $2,343 11 $ 1 2,567 $ 257 $79,024 $(264,921) $(6,065) $(189,361)
======== ======= ======= ======= ======= ======= ========== =========== ========= =========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
- 5 -
<PAGE>
PETROLEUM HEAT AND POWER CO., INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
------------------------
(In thousands) 1997 1996
-------- --------
<S> <C> <C>
CASH FLOWS FROM (USED IN) OPERATING ACTIVITIES:
Net loss $(34,382) $(27,704)
Adjustments to reconcile net loss to
net cash provided by (used in) operating activities:
Amortization of customer lists 13,419 14,090
Depreciation of plant and equipment 5,352 5,053
Amortization of deferred charges 3,469 3,677
Share of loss of Star Gas 1,808 394
Provision for losses on accounts receivable 1,435 1,295
Provision for supplemental benefits 424 655
Loss on early extinguishment of debt - 6,414
Gain on sale of business - (1,801)
Other (84) (54)
Change in Operating Assets and Liabilities, net of effects of acquisitions and
dispositions:
Decrease in accounts receivable 39,946 36,937
Decrease in inventory 9,076 5,525
Decrease (increase) in other current assets 480 (570)
Increase in other assets (138) (87)
Decrease in accounts payable (10,509) (14,165)
Increase in customer credit balances 9,168 5,114
Decrease in unearned service contract revenue (743) (1,637)
Decrease in accrued expenses (4,379) (4,374)
-------- --------
NET CASH PROVIDED BY OPERATING ACTIVITIES 34,342 28,762
-------- --------
CASH FLOWS FROM (USED IN) INVESTING ACTIVITIES:
Minimum quarterly distributions from Star Gas Partnership 4,130 2,936
Acquisitions (13,195) (22,045)
Capital expenditures (5,404) (4,052)
Proceeds from sale of business - 4,073
Net proceeds from sales of fixed assets 410 395
-------- --------
NET CASH USED IN INVESTING ACTIVITIES (14,059) (18,693)
-------- --------
CASH FLOWS FROM (USED IN) FINANCING ACTIVITIES:
Net proceeds from issuance of common stock 1,749 1,429
Net proceeds from issuance of preferred stock 28,323 -
Repayment of notes payable (1,050) (1,050)
Redemption of preferred stock (4,167) (4,167)
Repurchase of common stock - (39)
Repurchase of subordinated notes (1,050) (49,612)
Credit facility borrowings 13,000 29,000
Credit facility repayments (35,000) (29,000)
Decrease in restricted cash 3,000 3,000
Cash dividends paid (11,410) (13,859)
Other (3,129) 1,167
-------- --------
NET CASH USED IN FINANCING ACTIVITIES (9,734) (63,131)
-------- --------
NET INCREASE (DECREASE) IN CASH 10,549 (53,062)
CASH AT BEGINNING OF YEAR 3,257 78,285
-------- --------
CASH AT END OF PERIOD $ 13,806 $ 25,223
-------- --------
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the year for:
Interest $ 29,363 $ 29,528
Income taxes $ 135 $ 231
</TABLE>
See accompanying notes to condensed consolidated financial statements.
- 6 -
<PAGE>
PETROLEUM HEAT AND POWER CO., INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
The financial information included herein is unaudited; however, such
information reflects all adjustments (consisting solely of normal recurring
adjustments) which are, in the opinion of management, necessary for the fair
statement of results for the interim periods.
The results of operations for the nine months ended September 30, 1997 are not
necessarily indicative of the results to be expected for the full year.
2. ACCOUNTING CHANGES
In February 1997, the Financial Accounting Standards Board (FASB) issued
Statement of Financial Accounting Standards (SFAS) No. 128 - "Earnings Per
Share." SFAS No. 128 requires presentation of "basic" and "diluted" earnings
per share for periods ending after December 15, 1997. The impact of adopting
SFAS No. 128 will be immaterial.
3. PER SHARE DATA
The Company computes net income per common share based upon the weighted
average number of shares of Class A Common Stock, Class B Common Stock and
Class C Common Stock outstanding after adjusting net income for preferred
dividends declared aggregating $3.7 million and $2.4 million for the nine
months ended September 30, 1997 and 1996 respectively, and $1.9 million and
$1.2 million for the three months ended September 30, 1997 and 1996
respectively. Diluted net income per common shares are not presented because
the effect is not material.
4. ACQUISITIONS / DISPOSITION
During the nine month period ending September 30, 1997 the Company acquired
the customer lists and equipment of eight unaffiliated fuel oil dealers. The
aggregate consideration for this acquisition, accounted for by the purchase
method, was approximately $12.8 million. Sales and net income of the
acquired companies are included in the condensed consolidated statements of
operations from the respective dates of acquisition.
Had these acquisitions occurred at the beginning of the period, the pro
forma unaudited results of operations for the nine months ended September
30, 1997 would have been as follows:
(IN THOUSANDS, EXCEPT PER SHARE)
Net sales $ 395,858
Net loss (34,004)
Net loss per common share:
Class A Common Stock $ (1.45)
Class B Common Stock -
Class C Common Stock $ (1.45)
- 7 -
<PAGE>
PETROLEUM HEAT AND POWER CO., INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
4. ACQUISITIONS / DISPOSITION (CONTINUED)
Star Gas Corporation ("Star Gas"), is a wholly owned subsidiary of the
Company and is the general partner of Star Gas Partners, L.P. ("the
Partnership"). In October 1997, Star Gas purchased all the outstanding
capital stock of Pearl Gas Co. ("Pearl"), an Ohio corporation that markets
and distributes annually approximately 14.3 million gallons of propane in
Ohio and Michigan to over 12,000 customers. The purchase price for all the
outstanding Pearl capital stock was $22.6 million which included $1.9 million
for working capital that will be adjusted to reflect the actual working
capital on the date of the acquisition. Funding for the stock purchase was
provided by a $23.0 million bank acquisition facility.
Immediately after the acquisition of its capital stock, Pearl was merged into
Star Gas in a tax-free liquidation, and Star Gas entered into a Conveyance
and Contribution Agreement ("the Agreement") with the Partnership whereby
Star Gas contributed all the assets obtained in the merger with
Pearl. In return the Partnership assumed all the liabilities associated
with the Pearl stock purchase, including the obligations under the $23.0
million bank acquisition facility, and conveyed to Star Gas a 0.00027%
general partnership interest in the Partnership along with 147,727
Partnership common units. The aggregate value of all interests transferred to
Star Gas was $3.5 million, which included compensation for the additional
income tax liabilities the Company will incur as a result of the transaction.
On November 5, 1997, the Company sold its Hartford Connecticut operation to an
unaffiliated fuel oil dealer. The company received proceeds of approximately
$16.0 million and estimates that a gain ranging between $12.0 million and
$12.5 million will be recognized in the fourth Quarter of 1997.
5. DEFERRED GAIN ON THE 1995 STAR GAS TRANSACTION
In accordance with the Company's accounting policies, the Company deferred
the gain of approximately $20.0 million on the 1995 Star Gas transaction
because the Company received subordinate units which do not readily have an
ascertainable market price creating an uncertainty regarding realization, and
due to the fact that Star Gas as general partner had a $6.0 million
additional capital contribution obligation to enhance the Partnership's
ability to make quarterly distributions on the common units (at September 30,
1997, these funds were no longer restricted at the Star Gas level because
they had been released to Petro since the quarterly guarantee provisions were
fulfilled). The Company will recognize the gain from this transaction when
the Company's subordinated units convert into common units in accordance with
the terms of the partnership agreement. In general, full conversion of
subordinated units to common units will take place no earlier than the first
day of any quarter beginning on or after January 1, 2001, based upon the
satisfaction of certain performance criteria for a period of at least three
non-overlapping consecutive four-quarter periods immediately preceding the
conversion date.
- 8 -
<PAGE>
PETROLEUM HEAT AND POWER CO., INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
-------------------------
Overview
In analyzing Petro's results for the nine-month and three-month periods ended
September 30, 1997, one should consider the seasonal nature of the Company's
business, which results in the sale by the Company of approximately 50% of its
annual volume of fuel oil in the first quarter, 30% in the fourth quarter, and
20% in the second and third quarters combined. Unlike this pattern of
distribution, however, many of the Company's costs are incurred evenly
throughout the year, resulting in non-heating season operating and net losses.
NINE MONTHS ENDED SEPTEMBER 30, 1997
COMPARED TO NINE MONTHS ENDED SEPTEMBER 30, 1996
VOLUME. Home heating oil volume decreased 12.4% to 282.8 million gallons for
the nine months ended September 30, 1997, as compared to 322.8 million gallons
for the nine months ended September 30, 1996. This decline was largely due to
8.4% warmer weather in the first quarter of 1997, as temperatures were
significantly warmer than normal in contrast to the slightly colder than normal
weather experienced during the first quarter of 1996. In addition, volume was
also negatively impacted by net account attrition. Partially offsetting these
two factors was the acquisition by the Company of twenty one individually
insignificant heating oil companies since the beginning of 1996.
NET SALES. Net sales decreased 8.3% to $386.9 million for the nine months ended
September 30, 1997, as compared to $422.1 million for the nine months ended
September 30, 1996. This decline was due to decreased volume, partially offset
by slightly higher selling prices.
GROSS PROFIT. Gross profit decreased 10.4% to $115.6 million for the nine
months ended September 30, 1997, as compared to $129.0 million for the nine
months ended September 30, 1996. Gross profit did not decline to the same
extent as volume due to an increase of 1.4 cents per gallon in home heating oil
margins in the first nine months of 1997 as compared to the first nine months of
1996. This was largely due an improvement in customer pricing.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general and
administrative expenses decreased 2.3% to $75.1 million for the nine months
ended September 30, 1997, as compared to $76.9 million for the nine months ended
September 30, 1996. This decline was despite inflationary pressures in expenses
and was due both to reductions in certain expenses resulting from the Company's
operational efficiency programs and to the Company's ability to reduce certain
overhead costs in response to a decline in volume.
DIRECT DELIVERY EXPENSES. Direct delivery expenses decreased 10.4% to $21.2
million for the nine months ended September 30, 1997, as compared to $23.7
million for the nine months ended September 30, 1996, reflecting both the
reduction in volume and the presence in the first quarter of 1996 of severe
winter storms which increased the Company's delivery expenses.
RESTRUCTURING CHARGES. Restructuring charges remained relatively unchanged at
$1.3 million for the nine months ended September 30, 1997, as compared to $1.1
million for the nine months ended September 30, 1996. These charges represent
costs associated with the Company's regionalization and consolidation program in
the New York/Long Island region.
- 9 -
<PAGE>
CORPORATE IDENTITY EXPENSES. Corporate identity expenses for the nine months
ended September 30, 1997 were $3.2 million, as compared to $2.1 million for the
nine months ended September 30, 1996. These expenses represent costs associated
with the Company's brand identity program, implemented in Long Island during
1996 and in the Company's New York and Mid Atlantic regions during 1997, and
include the cost of repainting all delivery and service vehicles to reflect the
company's new identity. Through this program the Company intends to capitalize
on its size by building significant brand equity in one "Petro" brand name,
rather than the multiple names previously in use.
PENSION CURTAILMENT . Pension curtailment expenses for the nine months ended
September 30, 1997 were $0.7 million and represent the costs associated with
freezing the benefits under the Company's union-defined benefit pension plan
resulting from the 1997 consolidation of the New York City operations.
AMORTIZATION OF CUSTOMER LISTS. Amortization of customer lists decreased 4.8%
to $13.4 million for the nine months ended September 30, 1997, as compared to
$14.1 million for the nine months ended September 30, 1996, as the impact of
certain customer lists becoming fully amortized exceeded the impact of the
amortization associated with the Company's recent acquisitions.
DEPRECIATION OF PLANT AND EQUIPMENT. Depreciation and amortization of plant and
equipment increased 5.9% to $5.4 million for the nine months ended September 30,
1997, as compared to $5.1 million for the nine months ended September 30, 1996,
as a result of certain investments made related to our operational efficiency
programs in the New York and Mid Atlantic regions.
AMORTIZATION OF DEFERRED CHARGES. Amortization of deferred charges decreased
5.7% to $3.5 million for the nine months ended September 30, 1997, as compared
to $3.7 million for the nine months ended September 30, 1996, as the impact of
certain deferred charges becoming fully amortized exceeded the impact of the
depreciation associated with the Company's recent acquisitions.
PROVISION FOR SUPPLEMENTAL BENEFITS. Provision for supplemental benefits
declined to $0.4 million for the nine months ended September 30, 1997, as
compared to $0.7 million for the nine months ended September 30, 1996. These
supplemental benefits reflect the extension of the exercise date of certain
options previously issued and a change in the provision due to a reduction of
the accrual required under the vesting schedule of those options.
OPERATING INCOME. Operating income decreased to an operating loss of $8.5
million for the nine months ended September 30, 1997, as compared to operating
income of $1.7 million for the nine months ended September 30, 1996. This
decline was largely a result of the weather-related decline in volume and an
increase in restructuring and corporate identity expenses, partially offset by
the Company's ability to reduce certain operating expenses in response to the
warm weather and an increase in the Company's heating oil margins.
NET INTEREST EXPENSE. Net interest expense remained relatively unchanged at
$23.8 million for the nine months ended September 30, 1997, as compared to $24.1
million for the nine months ended September 30, 1996. This resulted from a
small reduction in gross interest expense resulting from both a slight decline
in average borrowings outstanding and average rate, and was partially offset by
a $0.1 million decline in interest income.
OTHER INCOME. Other income for the nine months ended September 30, 1996 was
$1.8 million, reflecting the sale in the second quarter of 1996 of the Company's
sub-performing Springfield, Massachusetts heating oil operations.
- 10 -
<PAGE>
EQUITY IN LOSS OF STAR GAS PARTNERSHIP. Equity in the loss of Star Gas
Partnership increased to $1.8 million for the nine months ended September 30,
1997, as compared to $0.4 million for the nine months ended September 30, 1996.
This increase was due to the impact of warm weather on Star Gas' propane volume
and net income.
EXTRAORDINARY ITEM. The extraordinary charge in February of 1996 of $6.4
million resulted from the retirement of $43.8 million of 12.25% Subordinated
Debentures due 2005. This charge included both a prepayment premium of $4.8
million and a write-off of deferred charges of $1.6 million associated with the
issuance of that debt.
NET LOSS. Net loss increased 24.1% to a loss of $34.4 million for the nine
months ended September 30, 1997, as compared to a loss of $27.7 million for the
nine months ended September 30, 1996. This increase was largely due to the
impact of warm first quarter weather on both the Company's and Star's volume, an
increase in restructuring and corporate identity expenses, and the gain
recognized on the sale of the Company's Springfield, Massachusetts business
during the prior year, partially offset by improved heating oil margins and the
absence in 1997 of the extraordinary item described above.
EBITDA*. EBITDA decreased 43.8% to $14.2 million for the nine months ended
September 30, 1997, as compared to $25.2 million for the nine months ended
September 30, 1996. This decline was due to decreased volume resulting from the
warm first quarter 1997 weather and to an increase in restructuring and
corporate identity costs, partially offset by improved heating oil margins.
Excluding restructuring and corporate identity expenses related to the Company's
operational programs, and taking into account distributions actually received
from Star Gas, EBITDA declined to $22.8 million from $31.4 million.
NIDA**. NIDA declined to an $8.8 million loss for the nine months ended
September 30, 1997, as compared to $3.8 million for the nine months ended
September 30, 1996. This decline was primarily the result of the reduction in
EBITDA caused by warm weather and increases in restructuring and corporate
identity expenses (described above). Excluding restructuring and corporate
identity expenses, NIDA declined to a loss of $4.3 million from $7.1 million.
* EBITDA (Earnings Before Interest, Taxes, Depreciation and Amortization) is
defined as operating income before depreciation, amortization, non-cash charges
relating to the grant of stock options to executives of the Company, non-cash
charges associated with deferred compensation plans and other non-cash charges
of a similar nature, if any. EBITDA is a non-GAAP measure that may not be
comparable to measures of the same title reported by other companies and should
not be considered as an alternative to net income (as an indicator of operating
performance) or as an alternative to cash flow (as a measure of liquidity or
availability to service debt obligations), but provides additional significant
information in that EBITDA is a principal basis upon which the Company assesses
its financial performance.
** NIDA (Net Income (Loss) Before Extraordinary Item, Depreciation and
Amortization)is defined as net income (loss) before extraordinary item, plus
depreciation, amortization, non-cash charges relating to the grant of stock
options to executives of the Company, non-cash charges associated with deferred
compensation plans and other non-cash charges of a similar nature, if any, less
dividends accrued on preferred stock, excluding net income (loss) derived from
investments accounted for by the equity method, plus any cash dividends received
by the Company from these investments. NIDA is a non-GAAP measure that may not
be comparable to measures of the same title reported by other companies and
should not be considered as an alternative to net income (as an indicator of
operating performance) or as an alternative to cash flow (as a measure of
liquidity or ability to service debt obligations) but provides additional
information in that NIDA is a principal basis upon which the Company assesses
its financial performance.
- 11 -
<PAGE>
THREE MONTHS ENDING SEPTEMBER 30, 1997
COMPARED TO THREE MONTHS ENDING SEPTEMBER 30, 1996
VOLUME. Home heating oil volume remained relatively unchanged at 28.5 million
gallons for the three months ended September 30, 1997, as compared to 28.6
million gallons for the three months ended September 30, 1996.
NET SALES. Net sales also remained relatively unchanged at $50.8 million for
the three months ended September 30, 1997, as compared to $51.1 million for the
three months ended September 30, 1996.
GROSS PROFIT. Gross profit increased 22.2% to $7.6 million for the three months
ended September 30, 1997, as compared to $6.2 million for the three months ended
September 30, 1996. This improvement in gross profit resulted from a 4.0 cent
increase in home heating oil gross profit margins over the prior year period,
due to reduced cost of product for the quarter as well as a 5.0% reduction in
net service and installation costs, which are included in the calculation of the
Company's gross profit, and which are a direct result of the Company's
operational efficiency programs.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES. Selling, general, and
administrative expenses remained relatively unchanged at $25.1 million for the
three months ended September 30, 1997, as compared to $24.9 million for the
three months ended September 30, 1996, as the impact of the Company's
productivity programs offset wage-related inflationary pressures.
DIRECT DELIVERY EXPENSE. Direct delivery expenses decreased 2.3% to $3.4
million for the three months ended September 30, 1997, as compared to $3.5 for
the three months ended September 30, 1996. This decline in expenses was a
result of the Company's productivity programs, which more than offset the impact
of inflation.
CORPORATE IDENTITY EXPENSES. Corporate identity expenses were $1.1 million for
the three months ended September 30, 1997, as compared to $1.3 million for the
three months ended September 30, 1996. These expenses represent costs
associated with the Company's brand identity program in the New York and Mid
Atlantic regions, as described in the nine month discussion.
PENSION CURTAILMENT . Pension curtailment expenses were $0.7 million for the
three months ended September 30, 1997 and represent the costs associated with
freezing the benefits under the Company's union-defined benefit pension plan
resulting from the 1997 consolidation of the New York City operations.
AMORTIZATION OF CUSTOMER LISTS. Amortization of customer lists remained
relatively unchanged at $4.5 million for the three months ended September 30,
1997, as compared to $4.6 million for the three months ended September 30, 1996,
as the impact of certain customer lists becoming fully amortized only slightly
exceeded the effect of the Company's recent acquisitions.
DEPRECIATION AND AMORTIZATION OF PLANT AND EQUIPMENT. Depreciation and
amortization of plant and equipment remained relatively unchanged at $1.8
million for the three months ended September 30, 1997, as compared to $1.7
million for the three months ended September 30, 1996.
AMORTIZATION OF DEFERRED CHARGES. Amortization of deferred charges increased
17.8% to $1.2 million for the three months ended September 30, 1997, as compared
to $1.0 million for the three months ended September 30, 1996, as the impact of
the Company's recent acquisitions exceeded the effect of certain deferred
charges becoming fully amortized.
- 12 -
<PAGE>
PROVISION FOR SUPPLEMENTAL BENEFITS. Provision for supplemental benefits
declined to $0.1 million for the three months ended September 30, 1997, as
compared to $0.2 million for the three months ended September 30, 1996. These
supplemental benefits reflect the extension of the exercise date of certain
options previously issued and the change in provision is due to a reduction of
the accrual required under the vesting schedule of those options.
OPERATING LOSS: Operating loss improved 2.4% to $30.2 million for the three
months ended September 30, 1997, as compared to $31.0 million for the three
months ended September 30, 1996. This was largely due to the Company's
significant improvement in home heating oil gross profit margins over the prior
year period, partially offset by pension curtailment expenses which the Company
did not incur in the prior year period and by the increase in the amortization
of deferred charges.
NET INTEREST EXPENSE: Net interest expense remained relatively unchanged at
$7.8 million for the three months ended September 30, 1997.
EQUITY IN LOSS OF STAR GAS PARTNERSHIP: Equity in the loss of Star Gas
Partnership increased to $2.4 million for the three months ended September 30,
1997, as compared to $1.9 million for the three months ended September 30, 1996.
This increase was due to the impact of higher non-cash expenses and lower
wholesale margins on Star Gas' net income.
NET LOSS: Net loss improved to $40.3 million for the three months ended
September 30, 1997, as compared to $40.6 million for the three months ended
September 30, 1996. This was primarily due to the Company's significant
improvement in home heating oil gross profit margins over the prior year period,
partially offset by pension curtailment expenses which the Company did not incur
in the prior year period and an increase in non-cash expenses.
EBITDA: EBITDA loss improved 3.8% to $22.6 million for the three months ended
September 30, 1997, as compared to $23.5 million for the three months ended
September 30, 1996. This was primarily due to the Company's significant
improvement in home heating oil gross profit margins over the prior year period,
partially offset by pension curtailment expenses which the Company did not incur
in the prior year period. Excluding the operational restructuring-related
corporate identity and pension curtailment costs, EBITDA loss improved 5.9% to
$20.9 million from $22.2 million.
NIDA: NIDA improved 2.5% to a loss of $29.6 million for the three months ended
September 30, 1997, as compared to a loss of $30.4 million for the three months
ended September 30, 1996. This improvement was largely due to the Company's
significant improvement in home heating oil gross profit margins over the prior
year period, partially offset by an increase in preferred dividends over the
1996 period.
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<PAGE>
LIQUIDITY AND FINANCIAL CONDITION
In February 1997 the Company entered into agreements ("Private Debt
Modifications") to among other things, exchange the remaining $30.0 million
of its $60.0 million 11.85%, 12.17%, and 12.18% notes ("11.96% Notes") ranked
as subordinated debt to senior debt, and to extend the maturity date of the
$60.0 million 11.96% Notes from October 1, 1998 to October 1, 2002 with $15.0
million sinking fund payments due on October 1, 2000 and October 1, 2001 and
the remaining $30.0 million balance due on October 1, 2002.
Also in February 1997 the Company issued $30.0 million of 12 7/8%
Exchangeable Preferred Stock due February 15, 2009. The intended use of this
offering's net proceeds of $28.3 million is for general corporate purposes,
as well as funding the Company's operational restructuring and acquisition
programs.
Net cash provided by operating activities of $34.3 million combined with the
$28.3 million net proceeds from the 12 7/8% Exchangeable Preferred Stock
offering described in the previous paragraph, amounted to $62.6 million.
These funds were utilized in investing activities for acquisitions and the
purchase of fixed assets of $18.5 million; and in financing activities to
repay notes payable of $1.1 million, repurchase subordinated notes of $1.1
million, repay net credit facility borrowings of $22.0 million, redeem
preferred stock of $4.2 million, pay cash dividends of $11.4 million, and
other financing activities of $3.1 million, which includes $1.2 million
associated with the Private Debt Modification of the 11.96% Notes. These
financing activities were partially offset by cash provided from the Star Gas
minimum quarterly distribution of $4.1 million, the release of $3.0 million
in restricted cash as all quarterly guarantee provisions were fulfilled, the
proceeds from the sale of fixed assets of $0.4 million, and proceeds from
dividend reinvestments of $1.8 million. As a result of the above activities,
the Company's cash balance increased by $10.5 million.
The Company currently has available a $47.0 million working capital revolving
credit facility. No amount was outstanding under this credit facility at
September 30, 1997, and the Company had $5.4 million of working capital.
Prior to October 1997, the Company had a $60.0 million working capital
revolving credit facility, but in tandem with its agreement to sell its
branch in Hartford, Connecticut for approximately $16.0 million, the working
capital revolving credit facility was reduced to $47.0 million. $9.4 million
of the proceeds from this sale were set aside to collateralize a portion of
the outstanding acquisition letter of credit. Cash collateral requirements
had originally been scheduled to begin in June 1998.
For the remainder of 1997, the Company anticipates paying dividends on its
Common Stock before dividend reinvestment of approximately $2.0 million, and
paying $1.0 million in preferred stock dividends.
In addition, as a result of the December 1995 Star Gas Transaction, Star Gas
Corporation, a wholly-owned subsidiary of the Company, as general partner
remains contingently liable for the Partnership's obligations. These
contingent liabilities are limited to Star Gas Corporation. Furthermore, to
enhance the Partnership's ability to pay a minimum quarterly distribution on
its common units, Star Gas agreed, subject to certain limitations, to
contribute up to $6.0 million in additional capital to the Partnership if,
and to the extent that, the amount of available cash constituting operating
surplus with respect to any quarter is less than the amount necessary to
distribute the minimum quarterly distribution on all outstanding common units
for such quarter. At September 30, 1997 none of these funds were restricted
at the Star Gas level, as they were released to Petro since the quarterly
guarantee provisions were satisfied.
- 14 -
<PAGE>
Based on the Company's current cash and working capital position, and bank
credit facility, the Company expects to be able to meet all of the above
mentioned obligations, as well as meet all of its other current obligations
as they become due.
RESTRUCTURING CHARGES
Over the past two years Petro has dedicated a large amount of effort toward
defining the best possible organizational structure for the Company. The
objective has been to structure the Company to provide superior service to
its customers, build a brand image, and reduce operating costs.
As part of the initial implementation of this program, Petro undertook
certain business improvement strategies in its Long Island, New York region.
These steps included the consolidation of the region's five home heating oil
branches into one central customer service center and three depots. The
regional customer service center consolidated accounting, credit, customer
service and the sales function into a single new facility in Port Washington,
Long Island. All external communications and marketing previously undertaken
in the five branches were centralized into this one location freeing the
three newly configured depots to focus on oil delivery and heating equipment
repair, maintenance and installation, in mutually exclusive operating
territories. The Company incurred $1.2 million in restructuring expenses in
the second quarter of 1996, for costs associated with the initial
implementation of the restructuring program.
In April 1997, the Company informed its New York City employees of the
intentions to continue the restructuring activity. Such activity included
combining the Company's three New York City branches into one new central
depot that specialized in delivery, installation, maintenance, and service
functions, and like the Long Island depots, be supported by the Port
Washington facility. The Company recorded a restructuring charge of $1.3
million in the second quarter of 1997 for restructuring costs of $0.4 million
for termination benefit arrangements with employees and $0.9 million for
continuing lease obligations for unused non-cancelable non-strategic
facilities.
To reflect the Company's continued commitment to define the best possible
organizational structure, in November 1997, the Company announced its
intentions to continue its restructuring activity at both the branch and
corporate level. Toward achieving its strategic intentions to define the best
possible organizational structure for both the corporate and regional
locations, and to execute its plan to eliminate redundancy and locate
responsibilities where they can best serve the Company, approximately $0.75
million in restructuring charges will be recorded by the Company during the
fourth quarter of 1997, for restructuring costs resulting from termination
benefit arrangements with certain branch and corporate employees.
- 15 -
<PAGE>
CORPORATE IDENTITY EXPENSES
Concurrently with the Company's initial restructuring efforts to increase
productivity and customer responsiveness, the Company implemented a corporate
identity program to increase the brand awareness of the "Petro" name among
heating oil customers. The implementation of this program began in April 1996
with its Long Island region, where the new "Petro" identity and image was
established while the region was being restructured. Under this program, the
Company began servicing its approximate 100,000 Long Island customers using
the "Petro" brand name, rather than the twelve previously in use. At December
31, 1996, the Company expended $2.7 million for corporate identity expenses,
which represented costs associated with repainting the fleet, issuing new
uniforms and advertising the new "Petro" brand name.
For the Nine months ended September 30, 1997 the Company incurred $3.2
million in corporate identity expenses for costs associated with implementing
its corporate identity program throughout the metropolitan New York City area
and its Mid-Atlantic region. The Company anticipates additional corporate
identity expenses for the fourth Quarter of 1997 to approximate $0.8 million.
STATEMENT REGARDING FORWARD-LOOKING DISCLOSURE
This report includes "forward-looking statements" within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act which
represent the Company's expectations or beliefs concerning future events that
involve risks and uncertainties, including those associated with the effect
of weather conditions on the company's financial performance, the price and
supply of home heating oil, the ability of the Company to obtain new accounts
and retain existing accounts and the ability of the Company to realize cost
reductions from its operational restructuring program. All statements other
than statements of historical facts included in this Report including,
without limitation, the statements under "Management's Discussion and
Analysis of Results of Operations and Financial Condition" and elsewhere
herein, are forward-looking statements. Although the Company believes that
the expectations reflected in such forward-looking statements are reasonable,
it can give no assurance that such expectations will prove to have been
correct.
- 16 -
<PAGE>
PART II OTHER INFORMATION
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS INCLUDED WITHIN:
(10.26) Consent Number 2 and Second Amendment dated as of October 15,
1997 to the Fourth Amended and Restated Credit Agreement,
dated as of September 27, 1996, among Petroleum Heat and
Power Co., Inc., the several banks and financial
institutions from time to time parties thereto and
The Chase Manhattan Bank, as agent for such Banks.
(10.27) Lease Agreement by and between Capital Distributors Corp. a
New York Corporation and Petroleum Heat and Power Co., Inc.
dated as of February 7, 1997 for 55-60 58th Street, Maspeth,
New York 11378.
(27) Financial Data Schedule
(b) REPORTS ON FORM 8-K
No reports on Form 8-K have been filed during the quarter for which
this report is filed.
- 17 -
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company
has duly caused this report to be signed on its behalf by the undersigned
thereunto duly authorized:
Signature Title Date
- --------- ----- ----
/s/ Irik P. Sevin Chairman of the Board, Chief November 10, 1997
- ----------------- Executive Officer, and
Irik P. Sevin Chief Financial and Accounting
Officer and Director
- 18 -
<PAGE>
EXHIBIT 10.26
CONSENT NUMBER 2 AND SECOND AMENDMENT
CONSENT NUMBER 2 AND SECOND AMENDMENT, dated as of October 15, 1997
(this "CONSENT"), to the Fourth Amended and Restated Credit Agreement, dated as
of September 27, 1996 (as amended, supplemented or otherwise modified from time
to time, (the "CREDIT AGREEMENT"), among Petroleum Heat and Power Co., Inc. (the
"COMPANY"), the several banks and financial institutions from time to time
parties thereto (collectively, the "Banks") and The Chase Manhattan Bank
(formerly known as Chemical Bank), as agent for such Banks (in such capacity,
the "Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Banks and the Agent are parties to the
Credit Agreement;
WHEREAS, the Company has requested that the Agent and the Banks
consent to the sale by the Company of its Hartford, Connecticut operations and
to the retention by the Company of a portion of the proceeds of such sale;
WHEREAS, the Company has further requested that the Agent and the
Banks amend certain provisions of the Credit Agreement, as more fully described
herein;
WHEREAS, the Agent and the Banks are willing to consent to such
transactions and to such amendments, but only upon the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained and for other good and valuable consideration the sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, terms defined in
the Credit Agreement are used herein as therein defined.
2. AMENDMENT OF SCHEDULE I. (a) Schedule I of the Credit Agreement
hereby is amended by deleting said Schedule I in its entirety and by
substituting therefor the new Schedule I which is set forth as Annex I to this
Consent.
(b) Each of the parties hereto hereby acknowledges and agrees that,
after giving effect to such amendment of Schedule I, First Union National Bank
shall cease to be a "Bank" party to the Credit Agreement and that each other
Bank shall be deemed to have the Commitments described in such new Schedule I.
(c) On the Effective Date, each remaining Lender shall make a loan to
the Company in such amount as shall be determined by the Agent to be necessary
to cause all principal owing to First Union National Bank to be paid in full and
to cause the aggregate amount of outstanding Loans to be provided ratably by the
remaining Lenders.
<PAGE>
2
3. CONSENT TO SALE OF OPERATIONS AND APPLICATION OF PROCEEDS. (a)
The Agent and the Banks hereby consent to the sale by the Company of its TLC
branch in Hartford, Connecticut for aggregate consideration of not less than
$15,500,000 (the "HARTFORD SALE") and hereby waive compliance with the
provisions of subsection 10.4 of the Credit Agreement to the extent and only to
the extent necessary to permit the Hartford Sale.
(b) The Agent and the Banks hereby consent that the Company may
retain a portion of the Net Cash Proceeds from the Hartford Sale, such that (i)
not less than $9,350,000 of such Net Cash Proceeds are applied on the closing
date of the Hartford Sale to cash collateralize the Acquisition Letters of
Credit pursuant to the Cash Collateral Agreement and (ii) an additional amount
of such Net Cash Proceeds shall be applied on or prior to June 30, 1998 to the
extent necessary to cash collateralize the Acquisition Letters of Credit in
accordance with the requirements of Section 5.7 of the Credit Agreement. The
Agent and the Banks hereby waive compliance with the provisions of subsection
6.4 of the Credit Agreement to the extent and only to the extent necessary to
permit the Company to retain any Net Cash Proceeds from the Hartford Sale which
are not required to be applied to cash collateralize the Acquisition Letters of
Credit in accordance with the terms of this clause (b).
(c) The Company hereby acknowledges and agrees that (i) any failure
to provide the cash collateral described in clause (b) above in a timely manner
shall constitute an Event of Default under the Credit Agreement and (ii) during
such time as the aggregate undrawn and unexpired face amount of the Acquisition
Letters of Credit exceeds the amount on deposit in the Cash Collateral Account
established pursuant to (and as defined in) the Cash Collateral Agreement, the
Company shall have no right to request the withdrawal of any amounts so on
deposit pursuant to Section 2(b)(ii) of the Cash Collateral Agreement.
(d) The Banks hereby authorize and instruct the Agent to deliver such
documents, instruments and agreements as the Company may from time to time
reasonably request in order to effect the release of any security interests held
by the Agent in assets of the Company and its Subsidiaries which are being
transferred pursuant to the Hartford Sale.
4. REDUCTION OF WORKING CAPITAL COMMITMENT. The Company hereby
irrevocably requests the reduction of the Working Capital Commitments to
$47,000,000 pursuant to subsection 6.2 of the Credit Agreement. The Company,
the Banks and the Agent hereby consent that such reduction of the Working
Capital Commitments shall become effective on and as of the Effective Date.
5. AMENDMENTS TO LINE LETTER. Each Bank hereby agrees that the
modification of the Line Letter, dated as of September 27, 1996 (as amended,
supplemented or otherwise modified from time to time, the "LINE LETTER"), among
the Banks as follows:
(a) First Union National Bank hereby terminates its Ratable Share thereunder
(and as defined therein), with such termination being effective on the
Effective Date;
<PAGE>
3
(b) from and after the termination of the Ratable Share of First Union National
Bank, First Union National Bank shall be released from any and all
participating interests and other rights and obligations (other than any
right to receive fees owing to it which accrued prior to the Effective
Date) in respect of outstanding Letters of Credit under the Line Letter and
such participating interests and other rights and obligations shall instead
be assumed ratably (in accordance with their Ratable Shares, after giving
effect to the provisions of clause (c) below) by the other Banks parties to
the Line Letter.
(c) from and after the termination of the Ratable Share of First Union National
Bank, the respective Ratable Shares and Cap Amounts of the remaining Banks
shall be as set forth below:
Bank Ratable Share Cap Amount
The Chase Manhattan Bank 41.18% $4,941,600
BankBoston, N.A. 29.41% $3,529,200
NationsBank, N.A. 29.41% $3,529,200
8. REPRESENTATIONS AND WARRANTIES. The Company hereby confirms,
reaffirms and restates the representations and warranties set forth in Section 8
of the Credit Agreement; PROVIDED that each reference to the Credit Agreement
therein shall be deemed to be a reference to the Credit Agreement after giving
effect to this Consent. The Company represents and warrants that no Default or
Event of Default has occurred and is continuing.
9. EFFECTIVENESS. This Consent shall become effective on the first
date upon which the Agent has received (such date, the "EFFECTIVE DATE"):
(a) counterparts hereof, duly executed and delivered by the Company and
each of the Banks; and
(b) an amendment fee, for the ratable account of each remaining Bank
(after giving effect to this Consent), in the amount equal to
$175,000.
10. CONTINUING EFFECT OF CREDIT AGREEMENT. This Consent shall not
constitute a waiver or amendment of any other provision of the Credit Agreement
not expressly referred to herein and shall not be construed as a waiver or
consent to any further or future action on the part of the Company that would
require a waiver or consent of the Banks or the Agent. Except as expressly
amended hereby, the provisions of the Credit Agreement are and shall remain in
full force and effect.
11. COUNTERPARTS. This Consent may be executed by the parties hereto
in any number of counterparts, and all of such counterparts taken together shall
be deemed to constitute one and the same instrument.
<PAGE>
4
12. GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be
duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the date first above written.
PETROLEUM HEAT AND POWER CO., INC.
By:
-------------------------
Title:
THE CHASE MANHATTAN BANK (formerly known as
Chemical Bank), a Bank
By:
-------------------------
Title:
BANKBOSTON N.A. (formerly known as The First
National Bank of Boston)
By:
-------------------------
Title:
NATIONSBANK, N.A.
By:
-------------------------
Title:
FIRST UNION NATIONAL BANK (formerly known as
First Union Bank of Connecticut and First
Fidelity Bank)
By:
-------------------------
Title:
<PAGE>
ANNEX I
to
CONSENT NUMBER 2 AND SECOND AMENDMENT
SCHEDULE I
Commitments; Commitment Percentages;
ADDRESSES FOR NOTICES
WORKING CAPITAL ACQUISITION COMMITMENT
ADDRESS FOR NOTICES COMMITMENT COMMITMENT PERCENTAGE
- ------------------- ---------- ---------- ----------
The Chase Manhattan Bank $19,354,600.00 $6,932,480.46 41.18%
7600 Jericho Turnpike
Woodbury, NY 11797
Attn: John Mast
BankBoston N.A. $13,822,700.00 $4,951,050.27 29.41%
100 Federal Street, #010802
Boston, MA 02110
Attn: Michael Hannon
NationsBank, N.A. $13,822,700.00 $4,951,050.27 29.41%
767 Fifth Avenue
New York, NY 10152
Attn: Eileen Higgins
TOTAL $47,000,000.00 $16,834,581.00 100.00%
-------------- -------------- -------
-------------- -------------- -------
<PAGE>
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned hereby (a) acknowledges and consents to the
terms of Consent Number 2 and Second Amendment to which this Acknowledgement and
Consent is attached and (b) agrees that all Security Documents to which it is a
party are, and shall remain, in full force and effect, both before and after
giving effect to such Consent Number 2 and Second Amendment.
MAXWHALE CORP.
ORTEP OF CONNECTICUT, INC.
PETRO, INC.
PETRO/CRYSTAL CORP.
ORTEP OF STATEN ISLAND, INC.
CBW REALTY CORP. OF CONNECTICUT
OCENNET FUEL OIL CORP.
ORTEP OF NEW JERSEY, INC.
PUBLIC FUEL SERVICE CO., INC.
ORTEP OF PENNSYLVANIA, INC.
MAREX CORPORATION
A.P. WOODSON COMPANY, INC.
By:
Title:
<PAGE>
EXHIBIT 10.27
LEASE AGREEMENT
BY AND BETWEEN
CAPITOL DISTRIBUTORS CORP.
A NEW YORK CORPORATION
(HEREIN "LANDLORD")
AND
PETROLEUM HEAT AND POWER CO., INC.
A MINNESOTA CORPORATION
(HEREIN "TENANT")
Demised Premises: (i) Approximately 135,400 square feet in building
known as 55-60 58th Street, Maspeth, County
of Queens, New York 11378
(ii) Entire parking facility at premises known as
56-25 56th Street, Maspeth, County of Queens,
New York 11378
Dated: As of February 7, 1997
<PAGE>
INDENTURE OF LEASE
THIS INDENTURE OF LEASE made as of this 7th day of February, 1997, by and
between CAPITOL DISTRIBUTORS CORP., a New York corporation, having a mailing
address c/o Lawrence Michaels, 150 East 77th Street, New York, N.Y. 10021,
hereinafter referred to as "Landlord", and PETROLEUM HEAT AND POWER CO., INC., a
Minnesota corporation, having its principal office at 2187 Atlantic Street,
Stamford, Connecticut 06904, hereinafter referred to as "Tenant".
W I T N E S S E T H :
ARTICLE I
DEMISED PREMISES -- TERM OF LEASE
That the Landlord, in consideration of the rents herein reserved, and of
the agreements, conditions, covenants and terms on the part of the Tenant
hereinafter contained, hereby demises and leases to the Tenant, and the Tenant
hereby takes, hires and leases from the Landlord:
(a) approximately 135,400 square feet in the
building (as delineated on the plan annexed hereto
as Exhibit "A") known as 55-60 58th Street,
Maspeth, County of Queens, State of New York 11378
(the legal description of the land on which such
building is erected is set forth in
1
<PAGE>
Exhibit "B" annexed hereto) (hereinafter the
"demised building premises"), and
(b) the entire parcel of land, which is
adjacent to the land on which is located the
building containing the demised building premises,
known as 56-25 56th Street, Maspeth, County of
Queens, State of New York (the legal description
of which is set forth in Exhibit "C" annexed
hereto) (hereinafter referred to as the "demised
parking premises") (the demised building premises
and the demised parking premises are hereafter
collectively referred to as the "demised
premises"),
the lease term hereinafter set forth, together with all of Landlord's rights,
privileges, easements and appurtenances, if any, in, over and upon adjoining and
adjacent public or private land, highways, roads and streets reasonably required
for ingress to and egress from the demised premises;
SUBJECT, however, to the following:
1. Any state of facts an accurate survey or visual inspection may show.
2. All present and future zoning ordinances, laws and regulations of the
local government in which the demised premises are situated, and all present and
future
2
<PAGE>
ordinances, laws, regulations and orders of all boards, bureaus, commissions and
bodies of any municipal, town, village, county, state or federal government now
or hereafter having or acquiring jurisdiction of the demised premises and of the
use and improvement thereof.
3. The condition and state of repair of the demised premises as of the
date hereof (but subject to Landlord's obligations hereunder) and on the day of
the commencement of the term of this lease on July 1, 1997, and all
deterioration, injury, loss, damage or destruction which may hereafter occur due
to normal wear and tear, it being acknowledged by Tenant that it has inspected
the demised premises, including the structural components (as hereinafter
defined in Section 5.02) and the systems of the demised building premises,
including, without limitation, heating and air conditioning, electrical,
plumbing, elevator and sprinkler. Tenant acknowledges that subject to
Landlord's obligations hereunder the demised building premises, including
without limitation the structural components (as hereinafter defined in Section
5.02) and systems (including, without limitation, heating and air conditioning,
electrical, plumbing, elevator and sprinkler) of the demised building premises,
are being leased to it "as is" without any representations, statements or
warranties, express or implied, by Landlord, and Landlord is not liable for any
latent defects therein.
4. Any future mortgages(s) on the fee of the demised premises (provided
Tenant obtains nondisturbance and recognition protection in accordance with
Article XII). Landlord represents that there is no present mortgage on the fee
of the demised premises.
3
<PAGE>
5. Violations of law, ordinances, orders or requirements, if any, now or
hereafter noted in or issued by any federal, state, county, municipal, town or
village department or authority having jurisdiction and any conditions
constituting such violations although not so noted; provided, however, that
Landlord will be responsible for the payment of any fines and costs of cure
arising from violations noted of record prior to the date hereof and shall do
all work necessary to cure such violations diligently, but Tenant shall furnish
without charge to Landlord an expediter to effect the actual removal from the
records of such violations.
6. Revocable nature of the right, if any, to maintain vault space, areas
or signs beyond the building lines.
7. Encroachments, if any, upon any street or highway adjoining or
abutting the demised premises.
8. Any real estate taxes, sewer rents and water charges which is not a
lien against the demised premises prior to the date hereof, but Landlord shall
be responsible for paying all real estate taxes for the period through June 30,
1997, and for all sewer rents and water charges which accrue up until the date
hereof.
9. Covenants, easements, agreements and restrictions of record, if any,
affecting the demised premises, and any future utility or telephone easement
granted by Landlord (which right of grant is expressly reserved to Landlord)
which does not materially interfere with Tenant's use of the demised premises.
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TO HAVE AND TO HOLD the demised premises unto Tenant for and during a term
of twenty (20) years beginning on July 1, 1997 and ending June 30, 2017, unless
sooner terminated as hereinafter provided. For purposes hereof, a lease year
shall be the twelve (12) month period commencing on each July 1 and ending on
the following June 30, and each succeeding twelve (12) month period thereafter.
Landlord and Tenant do hereby further covenant and agree:
ARTICLE II
FIXED RENT AND ADDITIONAL RENT
SECTION 2.01. Tenant shall pay to Landlord as fixed rent ("fixed rent")
for the demised premises the annual sum as follows: Seven Hundred Seventy-Eight
Thousand One Hundred Fifty ($778,150) Dollars for the first lease year of this
lease; Seven Hundred Eighty-One Thousand Five Hundred Twenty-Five ($781,525)
Dollars for the second lease year of this lease; Seven Hundred Eighty-Four
Thousand Nine Hundred Eighty-One ($784,981) Dollars for the third lease year of
this lease; Seven Hundred Eighty-Eight Thousand Five Hundred Twenty-Seven
($788,527) Dollars for the fourth lease year of this lease; Seven Hundred
Ninety-Two Thousand One Hundred Sixty-Three ($792,163) Dollars for the fifth
lease year of this lease; Eight Hundred Sixty-Three Thousand Five Hundred
Eighty-Nine ($863,589) Dollars for the sixth lease year of this lease; Eight
Hundred Sixty-Seven Thousand Four Hundred Five ($867,405) Dollars for the
seventh lease year of
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this lease; Eight Hundred Seventy-One Thousand Three Hundred Twenty ($871,320)
Dollars for the eighth lease year of this lease; Eight Hundred Seventy-Five
Thousand Three Hundred Thirty-Four ($875,334) Dollars for the ninth lease year
of this lease; Eight Hundred Seventy-Nine Thousand Four Hundred Forty-Seven
($879,447) Dollars for the tenth lease year of this lease; Nine Hundred
Twenty-Two Thousand Five Hundred Eighty-Six and 50/100 ($922,586.50) Dollars for
the eleventh lease year of this lease; Nine Hundred Forty-Five Thousand Nine
Hundred Eighty-Four and 36/100 ($945,984.36) Dollars for the twelfth lease year
of this lease; Nine Hundred Sixty-Nine Thousand Nine Hundred Seventy-Seven and
66/100 ($969,977.66) Dollars for the thirteenth lease year of this lease; Nine
Hundred Ninety-Four Thousand Five Hundred Seventy-Five and 40/100 ($994,575.40)
Dollars for the fourteenth lease year of this lease; One Million Nineteen
Thousand Seven Hundred Sixty-Eight and 58/100 ($1,019,768.58) Dollars for the
fifteenth lease year of this lease; One Million Forty-Five Thousand Five Hundred
Ninety-Seven and 82/100 ($1,045,597.82) Dollars for the sixteenth lease year of
this lease; One Million Seventy-Two Thousand Ninety and 12/100 ($1,072,090.12)
Dollars for the seventeenth lease year of this lease; One Million Ninety-Nine
Thousand Two Hundred Eighteen and 48/100 ($1,099,218.48) Dollars for the
eighteenth lease year of this lease; One Million One Hundred Twenty-Seven
Thousand Thirty-Six and 98/100 ($1,127,036.98) Dollars for the nineteenth lease
year of this lease; and One Million One Hundred Fifty-Five Thousand Five Hundred
Sixty-Three and 70/100 ($1,155,563.70) Dollars for the twentieth lease year of
this lease.
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All fixed rent and additional rent (as hereinafter provided) payable
hereunder shall be paid as follows:
(i) the fixed rent in equal monthly installments in advance on the
first (1st) day of each and every month except that the fixed rent for the first
month of the first lease year shall be paid on the execution and delivery of
this lease.
(ii) in United States currency which shall be legal tender for the
payment of all debts, public and private;
(iii) except as otherwise specifically provided in this lease, without
any deduction, abatement, setoff or credit whatsoever; and
(iv) at the address set forth at the head of this lease, or at such
other address as the Landlord may hereafter designate in accordance with this
lease.
SECTION 2.02. Except to the extent otherwise provided in this lease, it is
the intention of the parties hereto, and it is hereby mutually covenanted and
agreed, that the Landlord shall receive the fixed rent free from all taxes
which, by the terms of this lease, are made payable by Tenant, and that Tenant
also shall pay directly or reimburse Landlord for all costs, charges, expenses
and damages (collectively, "Charges") which, except for the execution and
delivery of this lease, relate to or could have been chargeable during the
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term hereby granted against the demised premises and/or would have been payable
by Landlord directly in respect of the demised premises, except that nothing
herein contained shall be deemed to require the payment by Tenant of any lien or
encumbrance created by orattributable to Landlord, including, but not limited
to, principal or interest of any mortgage or mortgages covering the fee of the
demised premises.
SECTION 2.03. (a) Landlord shall be obligated and responsible for paying
all Real Estate Taxes (as such term is hereinafter defined), together with any
interest or penalties lawfully imposed upon the late payment thereof, during the
term hereof, or any subsequent period of retention of possession by Tenant as a
holdover or otherwise, assessed on the Property (as hereinafter defined in this
Section 2.03) which is attributable to the demised premises; provided, however,
that as between Landlord and Tenant, the Landlord's obligation and
responsibility for the payment of such Real Estate Taxes attributable to the
demised premises shall, commencing on the day of the commencement of the term of
this lease on July 1, 1997 (the "Tax Period Commencement Date"), and continuing
for the remainder of the term hereof, and any subsequent period of retention of
possession by Tenant as a holdover or otherwise (the "Tax Period"), be limited
to an aggregate of Two Hundred Sixteen Thousand Three Hundred Fifteen and 50/100
($216,315.50) Dollars ("Base Tax Amount") for each fiscal tax year. Landlord
represents to Tenant that the Base Tax Amount is equal to the sum of
(i) Tenant's proportionate share (based on square footage) of the amount of Real
Estate Taxes assessed for the fiscal tax
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year July 1, 1996 to June 30, 1997 on the building in which the demised building
premises are located and on the land on which such building is situated (tax
parcel Block 2585, Lot 21, County of Queens) PLUS (ii) all Real Estate Taxes
assessed for the fiscal tax year July 1, 1996 to June 30, 1997 on the demised
parking premises (tax parcel Block 2585, Lots 7 and 18, County of Queens). The
aforesaid tax parcels Block 2858, Lots 21, 7 and 18 and the improvements thereon
are collectively referred to as the "Property." The sum of (i) all Real Estate
Taxes on the demised parking premises (Block 2585, Lots 7 and 18), PLUS (ii)
Tenant's proportionate share (based on square footage) of all Real Estate Taxes
on the land and building in which the demised building premises are located
(Block 2585, Lot 21), for any fiscal tax year during the Tax Period, which is in
excess of the Base Tax Amount, whether such excess is by reason of an increase
in the tax rate or an increase in the assessed valuation, or both, or by reason
of the levying, assessing or imposition of any new or additional Real Estate
Taxes, shall be paid by Tenant to Landlord as additional rent at least twenty
(20) days before the last date on which the Real Estate Taxes on the Property
for such fiscal tax year may be paid without penalty or interest. Landlord
shall, after receipt by Landlord of the bills for such Real Estate Taxes on the
Property for each fiscal tax year during the Tax Period, notify Tenant of the
amount of the additional rent due from Tenant as a result of such Real Estate
Taxes for such fiscal tax year. Upon request, Landlord shall deliver to Tenant
a copy of the receipted bill for such Real Estate Taxes as soon as it is
available from the applicable governmental authority, together with a copy of
the cancelled check(s) used to make such payment.
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(b) If for any fiscal tax year during the Tax Period, the Real
Estate Taxes on the Property shall be adjusted, corrected or reduced, whether as
the result of the protest of any tentative assessment or by means of agreement,
or as the result of any legal proceedings, any additional rent becoming due in
that fiscal tax year which is attributable to Real Estate Taxes shall be
determined on the basis of the corrected, adjusted or reduced taxes. If Tenant
shall have paid any additional rent which is attributable to Real Estate Taxes
for which Tenant is obligated prior to such adjustment (and provided Tenant is
not then in default under any of the terms, covenants or conditions of this
lease), Landlord shall credit Tenant proportionately with the amount received by
Landlord from the applicable taxing authority relating to such adjustment,
including any interest thereon, against the next installment(s) of additional
rent due under this lease which is attributable to Real Estate Taxes.
(c) Nothing herein shall obligate Landlord to protest, apply or
otherwise commence legal or other proceedings to obtain a reduction in Real
Estate Taxes on the Property. If Landlord shall protest or commence legal or
other proceedings to obtain a reduction in such Real Estate Taxes, Tenant shall
continue to pay additional rent which is attributable to such Real Estate Taxes
as if no such protest had been made or proceeding had been commenced and any
adjustment resulting from such protest or proceeding will be made after the
final determination of the amount of such Real Estate Taxes. Tenant shall
reimburse Landlord for Tenant's proportionate share (based on square
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footage) of all legal fees and disbursements incurred by Landlord in connection
with such contest with respect to tax parcel Block 2585, Lot 21 and all of such
legal fees and disbursements with respect to tax parcels Block 2585, Lots 7 and
18, within twenty (20) days after receipt by Tenant of a copy of the bill for
such fees and disbursements, or, at Landlord's option, all such fees and
disbursements shall be deducted from any refund received by Landlord from the
applicable taxing authority in computing the amount of any credit due Tenant.
If Landlord does not protest or otherwise contest the Real Estate Taxes on the
Property or any part thereof for any fiscal tax year during the Tax Period,
Tenant shall have the right to protest and otherwise contest the amount or
validity of such Real Estate Taxes if, in accordance with paragraph (a) above of
this Section 2.03, Tenant would be liable for any such Real Estate Taxes in
excess of the Base Tax Amount, by appropriate legal proceedings, diligently
pursued, provided that: (i) Tenant shall timely make all payments of additional
rent which are attributable to such contested Real Estate Taxes; (ii) neither
the demised premises nor any part thereof nor any interest therein shall be in
any danger of being sold, forfeited, or interfered with; (iii) Tenant shall have
furnished such security, if any, as may be required in the proceedings in
question or as may be reasonably required by Landlord (provided, however, that
the amount of any security required by Landlord shall not exceed the sum of the
installment of Real Estate Taxes in question and interest and penalties on such
installment through the anticipated date of settlement); (iv) all expenses
incurred in connection with such proceedings shall be paid by Tenant; and (v)
Landlord shall have the right of reasonable approval of Tenant's selection
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of the attorney to handle such protest or other proceeding.
(d) "Real Estate Taxes" shall mean all real estate taxes,
assessments, levies, impositions, charges and special assessments imposed and
payable on the Property (but excluding water and sewer charges). If, at any
time during the term of this lease, the methods of taxation shall be altered,
modified or changed, in whole or in part, so that, in lieu of, or as an addition
to, or as a substitute for the whole or any part of the taxes, assessments,
levies, impositions, charges or special assessments now levied, assessed or
imposed on the Property, there shall be levied, assessed or imposed on the
Property any taxes, assessments, levies, impositions, charges or special
assessments not now levied, assessed, or imposed on the Property, including,
without limitation: (i) a tax, assessment, levy, imposition or charge wholly or
partially as a capital levy or otherwise on the rents received therefrom; (ii) a
tax, assessment, levy, imposition, or charge measured by, or based in whole or
in part, upon the Property and imposed upon Landlord; (iii) a license fee
measured by the rents payable by a tenant to a landlord; (iv) an income, gross
receipts, capital stock or other tax levied against Landlord or the Property
which otherwise would constitute a Real Estate Tax; or (v) any other
governmental charges, whether federal, state, city, county or municipal, and
whether general or special, ordinary or extraordinary, foreseen or unforeseen,
then all such taxes, assessments, levies, impositions, charges or special
assessments, or the part thereof so measured or based, shall be deemed to be
included within the term "Real Estate Taxes" for the purposes hereof. As to any
assessment, Tenant's share shall be computed as if Landlord had elected to pay
same in
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installments over the longest period permitted by law, and Tenant's share shall
only include installments that would have been payable during the term had
Landlord so elected. As to any substitute tax, Tenant's share shall be computed
as if the Property were the only property owned by Landlord.
(e) If the Tax Period Commencement Date or the last date of the
Tax Period occurs on a day other than the first day or the last day of the
applicable fiscal year, then the additional rent payable pursuant to this
Article for such fiscal tax year shall be prorated using a fraction, the
numerator of which is the number of days in such fiscal tax year which occur
during the Tax Period and the denominator of which is 365. Tenant's obligation
hereunder to pay additional rent for Real Estate Taxes for the Tax Period shall
survive the expiration or termination of the term of this lease.
(f) Except to the extent provided in paragraph (d) of this
Section 2.03, nothing contained in this Section 2.03 shall obligate Tenant to
pay to, or on behalf of, Landlord additional rent which is attributable to:
(i) any United States Federal tax on net income and items of tax preference or
Federal tax in lieu of a net income tax; (ii) any State tax imposed on or
measured by net income, or any State franchise or similar tax in lieu of a net
income or franchise tax; (iii) any county, municipal or local tax imposed on or
measured by net income; (iv) any personal property, gross receipts, gift,
payroll, stamp, excise, corporate, franchise, estate, inheritance, succession,
capital levy, capital stock or transfer tax imposed on Landlord; or (v) any Real
Estate Taxes imposed against
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the Property and covering a period other than the Tax Period.
(g) Tenant shall pay directly to the applicable governmental
authority(ies) all water charges and sewer rent imposed with respect to the
demised premises arising on and after the date hereof and during the term of
this lease and any subsequent period of retention by Tenant of possession of the
demised premises.
SECTION 2.04. All amounts which Tenant is required to pay pursuant to this
lease (other than fixed rent) together with every fine, penalty, interest and
cost which may be added for non-payment or late payment thereof, shall
constitute additional rent. If Tenant shall fail to pay any such fixed rent
and/or additional rent on or before the date on which the same shall become due,
Landlord shall have all the rights, powers and remedies with respect thereto as
are provided in this lease or by law.
SECTION 2.05. If Landlord shall not have received any installment of fixed
rent or any additional rent within five (5) business days after the same shall
have become due and payable, and Tenant shall not have, within three (3)
business days after receiving a telecopier notice from Landlord, delivered to
Landlord payment of such installment of fixed rent or additional rent that was
due and payable, Tenant shall pay Landlord a late charge of four (4%) percent of
the amount of each such installment which was not received by Landlord within
the additional three (3) business day period following the telecopier notice;
provided, however, that such additional three (3) business days notice shall not
be required before imposition of such late charge if within a twelve (12) month
period there is
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a third or further nonreceipt by Landlord of such installment within five (5)
business days after same is due .
SECTION 2.06. In addition to the late charge specified in Section 2.05,
Tenant shall pay to Landlord interest on all overdue fixed and additional rent
from the date which is five (5) business days after the due date thereof until
paid at an annual rate which shall be two (2%) percent in excess of the prime
rate for such period as published from time to time in the eastern edition of
THE WALL STREET JOURNAL.
SECTION 2.07. Except as specifically provided in this lease, Landlord is
not required to render any services of any kind to Tenant. Furthermore, Tenant
expressly acknowledges that, except as otherwise expressly and specifically
provided for in this lease, no event, occurrence or situation during the term
hereof shall relieve Tenant of the obligation to pay fixed and additional rent
hereunder or entitle Tenant to an abatement of same, and, except as otherwise
expressly provided herein, the obligations of Tenant hereunder are separate and
independent covenants and agreements and shall continue unaffected by any such
event, occurrence or situation.
ARTICLE III
USE OF THE DEMISED PREMISES
SECTION 3.01. The demised building premises shall be used only for
offices, administrative use and the storage and maintenance of trucks and any
other legal purpose, except as provided in Section 3.02. The demised parking
premises shall be used only for
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the parking and storage of vehicles and any other legal purposes except as
provided in Section 3.02.
SECTION 3.02. Tenant shall not use or knowingly permit to be used any part
of the demised premises for any unlawful purpose, nuisance or disreputable
purpose. The Tenant's use or storage on the demised premises of any oil or
petroleum products or any other hazardous or toxic materials shall be in
compliance with all applicable federal, state and local environmental laws.
SECTION 3.03. Tenant shall not at any time use or occupy the demised
premises in violation of any certificate of occupancy issued therefor or zoning
ordinance, it being agreed that Tenant shall be responsible financially and
otherwise for obtaining any amendment to the present certificate of occupancy or
new certificate of occupancy to lawfully permit the storage of trucks in the
demised building premises. Landlord shall not enter into any future agreement
which would derogate from the uses for which the demised premises may be used
under this lease, and shall not further amend the certificate of occupancy for
the demised building premises in such manner as would prohibit or materially
impair the use of the demised building premises for the uses set forth in
Section 3.01. In the event that any department of any local government in which
the demised premises are situated, or of the State of New York, shall at any
time contend/or declare during the term of this lease by notice, violation,
order or in any other manner whatsoever that the demised premises are being used
for a purpose which is in violation of any such
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certificate of occupancy, use permit or zoning ordinance, Tenant shall either
(i) discontinue such violative use of the demised premises within fifteen (15)
business days of being notified of same or with such lesser time as required by
the concerned governmental authority, or (ii) in good faith, diligently
undertake within a fifteen (15) business days period to contest any notice or
order with respect to the claimed violation in the manner and under the
conditions set forth in Section 4.05 hereof. Failure by Tenant to either
discontinue such claimed violation or contest same as aforesaid shall be
considered a default by Tenant.
ARTICLE IV
OBLIGATIONS OF TENANT
SECTION 4.01. Beginning with the date hereof, Tenant shall have right of
access to the demised premises and the right to commence the changes and
alteration work pursuant to Article VII. Except as otherwise specifically
provided in this lease, beginning with the date hereof and continuing during
the term of this lease and any subsequent period of retention of possession by
Tenant as a holdover or otherwise, Tenant shall be solely responsible,
financially and otherwise, for the condition, operation, management and
maintenance of the demised premises (except for environmental problems which
Tenant establishes were not caused or introduced by Tenant), which
responsibility shall include but not be limited to:
(i) taking care of the demised premises and every part thereof
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including systems and equipment (but excluding structural components as defined
in Section 5.02 provided, however, that Tenant shall be responsible for
maintaining, repairing and replacing structural components which it has
constructed pursuant to Article VII or thereafter and shall perform preventive
maintenance on the structural components for which Landlord is responsible such
as removing snow from the roofs) and maintaining and keeping same in good
order, condition; and repair;
(ii) suffering or permitting no waste, overloading, damaging,
defacing, nuisance or injury to the demised premises;
(iii) maintaining and repairing sidewalks and curbs adjacent to or
abutting the demised premises and keeping the demised premises and such
sidewalks and curbs free of snow, ice, dirt, rubbish and other obstacles;
(iv) promptly making and paying the cost of all ordinary and
extraordinary repairs, painting and replacements required to the interior,
including the systems, of the demised premises (except for structural components
as defined in Section 5.02 for which Landlord is responsible pursuant to Section
5.02), which said repairs, painting and replacements shall be effected in a good
and workmanlike manner;
(v) paying for all utility, operating and maintenance expenses of
the demised premises;
(vi) effecting, keeping in force, and paying and/or reimbursing
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Landlord for the premiums for insurance as provided in Article IX.
(vii) reimbursing Landlord for governmental license and inspection
fees proportionately (such as sprinkler inspection fees) or entirely (such as
elevator inspection fees) attributable to the demised premises within ten (10)
business days after demand therefor, it being understood that Tenant shall pay
directly to the concerned governmental departments all license permits and
inspection fees in connection with changes and alteration work performed by
Tenant as provided in Article VII;
(viii) complying with local requirements regarding landscaping.
(ix) pay the water and sewer charges attributable to the demised
premises before interest or penalties are imposed;
SECTION 4.02. Tenant on and after the date hereof at its sole cost and
expense shall perform and comply with all the orders, regulations, rules and
requirements of every kind and nature of the municipal, county, town, village,
state and federal authorities applicable to the demised premises, and of any
applicable board of fire underwriters and of any other body, board, commission,
governmental or quasi-governmental authority or sovereign concurrently or
successively exercising fire and other hazard safety ratings and requirements
applicable to the demised premises (including any orders and requirements for
investigating and rectifying any possible hazardous or toxic
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materials, condition, discharge, leakage or activity introduced or caused by
Tenant or by Tenant's invitees, contractors or permitted sublessees), and Tenant
shall so perform and comply, whether or not such laws, rules, orders,
ordinances, regulations or zoning regulations shall now exist or shall hereafter
be enacted or promulgated and whether or not such laws, rules, orders,
ordinances, regulations or zoning regulations may be said to be within the
present contemplation of the parties hereto, except Tenant shall not be
responsible for environmental problems which Tenant establishes were not caused
or introduced by Tenant and except that Landlord shall be responsible for any
changes or repairs to structural components that are required by existing or
future laws, regulations or orders other than those structural components which
have been constructed by the Tenant. In determining whether Tenant introduced
or caused any possible hazardous or toxic materials, condition, discharge,
leakage or activity, Tenant shall have to establish that such materials,
condition, discharge, leakage or activity were not introduced or caused by
Tenant (or Tenant's invitees, contractors or permitted sublessees). Tenant
shall not be responsible for environmental problems it did not introduce or
cause. Without limiting such obligations, if any, that may be imposed by law or
order of any governmental body upon Tenant, at the written request of the
Landlord but not more than four (4) times during the term of this lease and, in
addition, upon the expiration or sooner termination of the term of this lease,
Tenant shall hire at its sole cost and expense an independent environmental
firm, reasonably satisfactory to Landlord, to do a visual inspection of the
demised premises similar to those visual inspections currently done in
connection with Phase I
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Environmental Site Assessment. If it is the conclusion of the firm handling the
inspection that, based on the results of such inspection, further investigations
are in order, Tenant shall have such investigations done at its sole cost and
expense. If the hazardous or toxic materials were introduced or caused by
Tenant (or Tenant's invitees, contractors or permitted sublessees), Tenant shall
take all appropriate action (including where appropriate coordination with
responsible governmental agencies which may require remediation) in connection
therewith at its sole cost and expense. Environmental reports, in duplicate,
regarding the demised premises have been signed on the first page by respective
representatives of Landlord and Tenant and the subsequent pages initialed by
such representatives.
SECTION 4.03. If on or after the date hereof any proceedings are
instituted or orders made for the widening or other enlargement of any street
contiguous to the demised premises, requiring removal of any projection or
encroachment on, under or above any such street, or any changes or alterations
upon the demised premises, or in the appurtenances, Tenant, at Tenant's own cost
and expenses, shall comply promptly with such requirements other than with
respect to structural components for which Landlord is responsible in accordance
with Section 5.02.
SECTION 4.04. Tenant shall have the right to contest or to have reviewed,
in Tenant's name or (wherever necessary) in Landlord's name, any order,
regulation or requirements or notice issued against the demised premises by
legal proceeding or in such other manner as it deems suitable and may defer
compliance therewith until the
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determination of such contest or review, provided such deferral, to Landlord's
reasonable satisfaction, shall not subject Landlord to criminal prosecution,
penalty or other liability or place in jeopardy Landlord's title to any part of
the fee to, or the certificate of occupancy or use permit for, the demised
premises. If any such actions or proceedings are instituted, they shall be
conducted promptly at the expense of Tenant (if Tenant's responsibility) and
free of expense to Landlord (unless Landlord's responsibility), and if as a
result of any such proceedings, any order, regulation, rule, requirement or
notice is modified or partially revoked or canceled, Tenant (if Tenant's
responsibility) shall then be obligated to comply with only that part thereof
which shall remain in force and effect. The legal proceedings herein referred
to shall include appropriate appeals from judgments, decrees or orders, but all
such original legal proceedings and appeals shall be begun as reasonably soon as
possible after the filing of any such order, regulation, rule, requirement or
notice and shall be prosecuted to final adjudication with all reasonable
promptness and dispatch. If and whenever any such order, regulation, rule,
requirement or notice shall become absolute against Tenant and the demised
premises, or against Landlord after contest thereof, Tenant (if Tenant's
responsibility) will comply with the same with due diligence.
Landlord, without liability or expense to Landlord (unless Landlord's
responsibility) shall cooperate with Tenant and execute any documents or
pleadings required for such purpose, provided that Landlord shall reasonably be
satisfied that the facts and data set forth in any such documents or pleadings
are accurate.
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SECTION 4.05. Tenant agrees to give Landlord notice of any law, rule,
order, ordinance, or regulation enacted, passed, promulgated, made, issued or
adopted by any of the governmental departments or agencies or authorities
hereinbefore mentioned affecting the demised premises, a copy of which is served
upon or received by Tenant, or a copy of which is posted on, or fastened or
attached to, the demised premises, or otherwise brought to the attention of
Tenant, by mailing within five (5) business days after such service, receipt,
posting, fastening or attaching or after the same otherwise comes to the
attention of the Tenant, a copy of each and every one thereof to Landlord. At
the same time, the Tenant will inform Landlord as to the work or steps which the
Tenant proposed to do or take in order to comply therewith. Provided, however,
that if the same would require any alterations such as would reduce the value of
the demised premises or change the general character or design of the demised
premises, and if the Tenant shall not desire to contest the same, Tenant will,
if Landlord so requests (unless such request would substantially interfere with
Tenant's use), defer compliance therewith in order the Landlord may, if Landlord
wishes at it sole cost and expense, contest or seek modification of or other
relief with respect to such requirements, but nothing herein shall relieve
Tenant of the duty and obligation, at Tenant's expense (if Tenant's
responsibility), to comply with such requirements, or such requirements as
modified whenever Landlord shall so direct, except for Landlord's obligations as
expressly set forth in this lease with respect to changes or repairs to
structural components.
SECTION 4.06. Tenant shall defend, indemnify and save Landlord and its
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officers, directors, employees, shareholders and agents (collectively,
"Landlord's representatives") harmless from and against any and all liability,
loss, damages, expenses, costs of action, reasonable attorneys fees, suits,
interest, fines, penalties, claims and judgments (to the extent that the same
are not paid out of the proceeds of any policies or insurance for which the
premiums are paid by Tenant or reimbursed to Landlord by Tenant) arising on and
after the date hereof and during the term of this Lease and any subsequent
retention of possession by Tenant as a holdover or otherwise, from injury or
claim of injury, to person or property of any and every nature, and from any
matter or things arising out of Tenant's occupation, possession, use,
management, improvement, alteration or control of the demised premises and of
the equipment and fixtures therein, and of the adjacent streets, sidewalks,
passages, spaces, areas and vaults, or arising out of any action or proceeding
which Tenant may hereinafter bring for the specific purposes as hereinbefore
provided, or arising out of Tenant's failure to perform fully and promptly each
and every covenant, term, condition and agreement in this lease provided to be
performed by Tenant; provided, however, that the obligation of Tenant so to
defend, indemnify and save harmless Landlord and Landlord's representatives
shall not be applicable where the cause thereof arises after the re-entry by
Landlord into the demised premises pursuant to the applicable covenant of this
lease providing specifically therefor; and Tenant shall defend by counsel (who
shall be reasonably satisfactory to Landlord) any and all suits that may be
brought, and claims which may be made against Landlord or Landlord's
representatives, or in which Landlord of Landlord's representatives may be
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impleaded with others, whether Landlord or Landlord's representatives shall be
liable or not, upon any such mentioned liability, loss, damage, expense, cost of
action, suit, interest, fine, penalty, claim and judgment, and Tenant shall
satisfy, pay and discharge any and all judgments that may be recovered against
Landlord or Landlord's representatives in any such action and any interest
thereon; provided, further, however, that Landlord may, at its option and
expense, intervene in such suits with counsel of its choice. The obligations of
Tenant in this Section 4.06 (and elsewhere in this lease) to defend and
indemnify Landlord and Landlord's representatives are separate and apart from
and not in lieu of Tenant's obligation to provide for Landlord's and Landlord's
representatives' benefit and protection the comprehensive general liability
insurance required in accordance with Article IX and during any repair,
alteration, improvement or installation work being done by or for Tenant at the
demised premises.
SECTION 4.07. If at any time prior to or during the term of this lease or
any subsequent retention of possession by Tenant by reason of a holdover or
otherwise (or within the statutory period thereafter if attributable to Tenant),
any mechanic's or other lien or order for payment of money shall be filed
against the demised premises or any part thereof for work performed by or on
behalf of Tenant or a permitted sublessee, Tenant, if such lien results from
Tenant's or such permitted sublessee's failure to pay, shall at its own cost and
expense procure the same to be discharged by payment, bonding or otherwise, as
provided by law, within twenty (20) business days after notice by Landlord to
Tenant of the filing thereof, but nothing herein contained shall in any way
prejudice the rights of
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Tenant to contest to final judgment or decree any such lien. Tenant shall, upon
reasonable notice and request in writing by Landlord, defend for Landlord, at
Tenant's sole cost and expense, any action or proceeding which may be brought on
or for the enforcement of any such lien or order aforesaid for payment of money,
if due to Tenant's (or a sublessee's) failure to pay, and will pay any damages
and satisfy and discharge any judgment entered in such action or proceeding and
save harmless Landlord from any liability, claim or damage resulting therefrom.
In default of Tenant's procuring the discharge of any such lien as aforesaid
Landlord may without notice, and without prejudice to its other remedies
hereunder, procure the discharge thereof by bonding or payment or otherwise, and
all cost and expenses including reasonable attorneys fees which Landlord shall
incur shall be paid by Tenant to Landlord as additional rent on the first day of
the next succeeding month.
SECTION 4.08. Landlord shall not under any circumstances be liable to pay
for any work, labor or services rendered or materials furnished to or for the
account of Tenant upon or in connection with the demised premises, and no
mechanic's or other lien for such work, labor or services or material furnished
shall, under any circumstances, attach to or affect the reversionary interest of
Landlord in and to the demised premises or any part thereof. Nothing in this
lease contained shall be deemed or construed in any way as constituting the
request or consent of Landlord, express or implied, by inference or otherwise,
to any contractor, subcontractor, laborer or materialman for the performance of
any labor or the furnishing of any materials or any specific improvements,
alteration to or repair of the demised premises or any part thereof, nor as
giving Tenant any right, power or
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authority to contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to the filing of any lien
against the demised premises.
SECTION 4.09. In the event any vault now or hereafter constructed in front
of or adjoining the demised premises, or any part thereof, or any portico,
stoop, window, or other projection or erection, of any kind beyond the building
lines of the demised premises shall be ordered removed, or shall be removed as
the result, or by virtue of any law, order or ordinance of any federal, state,
county, municipal, town, village or other public authority, Tenant covenants and
agrees that such removal shall not constitute, or be deemed or construed to be,
a violation or breach of any covenant of this lease on the part of Landlord to
be kept, observed and performed, or a ground for any claim for damage against
Landlord, or a ground for any claims for the diminution or abatement of rent;
and such removal and incidental alteration or repair shall be made to the
satisfaction of Landlord by and at the cost and expense of Tenant, and Tenant
agrees to indemnify Landlord against such cost or expenses, as well as against
all costs, damages, reasonable attorneys fees and penalties arising out of a
failure to comply with any law, order or ordinance directing such removal or
alteration. In no event are any vaults to be filled in unless there is a
positive requirement so to do by legal authority. Landlord, however, shall be
responsible including paying for the removal or correction of any structural
components that Landlord is obligated to replace or repair in accordance with
Article V.
Tenant agrees to pay all fees, payments or charges that may be made,
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required or demanded for the maintenance and/or construction of any such vault,
portico, stoop, window or other projection or erection.
SECTION 4.10. Except for Landlord's negligence, Tenant covenants that
Landlord and Landlord's representatives shall not be liable for any bodily
injury or property damage caused by or to any persons in or outside the demised
premises resulting on or after the date hereof from electricity, water, steam,
rain, snow or gas or other substances which may leak or flow into or from any
part of the demised premises or from the drainage pipes, plumbing works,
heating, ventilating, sprinkler or wiring or any other system of the demised
premises, or from any other place in the demised premises or cause, or any
interference with the use of the demised premises or any part thereof caused by
the operations of any public or quasi-public work, and Tenant agrees to defend
and indemnify Landlord and Landlord's representatives against any such claim, as
well as against all costs and expenses, including reasonable attorneys fees, and
damages arising therefrom.
ARTICLE V
LANDLORD'S OBLIGATIONS
SECTION 5.01. Prior to the commencement of the lease term on July 1, 1997,
Landlord shall be responsible financially and otherwise to complete the
conversion of the demised parking premises into a lawful facility of
approximately 90,000 usable square feet for the parking and storage of vehicles
including but not limited to clearing, grading, paving and fencing the demised
parking premises and providing a drainage system into the city sewer system.
Tenant shall be responsible financially and otherwise for the
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installation, including associated labor costs, in the demised parking premises
of wiring and appliances for lighting and truck heating, a motorized gate and
any security arrangement which Tenant desires and provided, further, same is
done in accordance with any governmental requirements. Unless Tenant notifies
Landlord in writing to the contrary (and in reasonable detail) (i) within ten
(10) days of taking possession of the demised parking premises or (ii) within
ten (10) days after notification by Landlord in writing to Tenant that such
demised parking premises are ready for use by Tenant (whichever event in clause
(i) or (ii) earlier occurs), the taking of possession or use by Tenant under
this lease of the demised parking premises shall be conclusive of the acceptance
and acknowledgment by Tenant that Landlord has fulfilled its obligation to
provide the demised parking premises in a condition for such use by Tenant. As
to the demised parking premises, Landlord will coordinate its schedule of work
with Tenant so that (i) Tenant can efficiently install the wiring and appliances
for lighting and truck heating, the motorized gate and any security arrangements
in conjunction with Landlord's work and (ii) Tenant at all times will have
access to the building through the demised parking premises for Tenant's
construction in the demised building premises except for temporary nonaccess
because of work on the demised parking premises or where access for such
construction work by Tenant is available other than through that part of the
demised parking premises where work is being performed.
SECTION 5.02. Landlord shall be responsible financially and otherwise for
its work on the demised parking premises described in Section 5.01 and for
repairs and
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replacements of the structural components of the demised building premises. As
used in this lease, "structural components" shall mean the roofs, foundation,
ceiling slabs, the outer brickwork walls (not including windows) and those walls
within the interior of the premises which are load bearing. Notwithstanding the
foregoing provisions of this Section 5.02, Tenant shall be responsible
financially and otherwise for any repairs or replacements required to the
structural components by reason of any changes or alterations to the demised
building premises made by the Tenant, including those changes or alterations
provided for in Article VII.
SECTION 5.03. In anticipation that Tenant will substantially perform the
work shown on the plans for the initial changes or alterations provided for in
Article VII, Landlord shall contribute the sum of Two Hundred Two Thousand
($202,000) Dollars toward the changes or alterations to be made by Tenant as
set forth in Section 7.01. If Landlord desires to make all or part of such
payment directly to the contractors performing such alterations and changes, it
shall be required to notify Tenant in writing on or before May 15, 1997 and,
upon such timely notification, Tenant shall forthwith notify Landlord of the
contractor or contractors remaining unpaid up to such $202,000 to which Landlord
may make payment. If the Landlord does not give such notification on or before
May 15, 1997, then Landlord shall pay such sum of $202,000 on July 1, 1997 to
Tenant or, at Tenant's option, to the contractor or contractors performing such
alterations or changes. The improvements constructed with such sum contributed
by Landlord shall be made for Landlord's account, it being understood that
Tenant is supervising said construction for
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Landlord's convenience.
SECTION 5.04. Tenant has examined the demised building premises for any
asbestos and to the extent, if any, it has found any specific asbestos condition
within the demised building premises that may be in violation of existing
federal, state or local laws and regulatioins dealing with asbestos, Tenant
shall be responsible financially and otherwise for remediating such asbestos
condition. Landlord shall have no liability or responsibility financially or
otherwise for remedying any asbestos condition within the demised building
premises, whether readily observable or latent. Without limiting the foregoing,
Tenant shall be responsible financially and otherwise for any asbestos condition
violative of any present or future laws or regulations which result from any
alteration or other change in the demised building premises performed by Tenant.
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ARTICLE VI
NO REPRESENTATIONS BY LANDLORD
SECTION 6.01. Except with respect to Landlord's obligations provided in
Article V, Tenant accepts the demised premises in its present condition and in
its condition at the commencement of the term of this lease, and without any
representation or warranty by Landlord as to the condition of the demised
premises (including the structural components and systems of the demised
building premises and any environmental matters) now or then, or as to the
lawful use or occupancy which may be made thereof, the expenses, including
taxes, of operation or any other matter or thing affecting or relating to the
demised premises, and, further, Landlord shall not be responsible for any latent
or other defect or change of condition in the demised premises except for its
obligations specifically set forth herein, and the fixed rent, additional rent
and payments of Charges and other sums provided in this lease to be paid by
Tenant shall in no event be withheld, abated or diminished on account of any
defect in the demised premises nor for any change in its condition nor for any
damage occurring thereto.
ARTICLE VII
CHANGES OR ALTERATIONS TO DEMISED PREMISES
SECTION 7.01. Tenant has delivered to Landlord plans for the changes and
alterations to the demised building premises which Tenant intends to perform
(subject to
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reasonable modifications of the plans, governmental approvals, field conditions
and constructual tolerances) prior to and at the inception of this lease at its
cost and expense, and Landlord consents to the general scope, as well as the
specifications, of such changes and alterations as shown on the plans, a
duplicate of which has been signed on the first page by respective
representatives of Landlord and Tenant and the subsequent pages initialed by
such representatives.
SECTION 7.02. For the purpose of permitting Tenant to perform the changes
and alterations provided for in Section 7.01, Tenant shall have access to the
demised premises beginning on the date hereof to commence the work, provided,
however, that Tenant shall be responsible financially and otherwise for all
expenses of operation and maintenance of the demised premises beginning on the
date hereof, including those set forth in Article IV.
SECTION 7.03. With respect to all other changes and alterations following
the work contemplated pursuant to Section 7.01, Tenant is hereby given the
right, from time to time, to redecorate the demised premises and to make such
changes, alterations, repairs and replacements, other than those to or affecting
the structural components, as Tenant deems expedient or necessary, at Tenant's
sole cost and expense, without Landlord's consent if a building permit for such
alterations is not legally required, or if such a building permit is required,
or if Tenant wishes to make structural changes then subject to obtaining
Landlord's consent, which consent shall not be withheld or delayed
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unreasonably.
SECTION 7.04. Any alterations or changes remaining on the demises premises
at the termination of this lease shall, if not readily removable without damage
to the demised premises (unless such damage is repaired in a good and workman
manner), revert to Landlord.
SECTION 7.05. Tenant agrees that it will procure all necessary permits
from the concerning governmental authorities before making any repairs,
alterations, other improvements or installations, including without limitation
any alterations made pursuant to Sections 7.01 and 7.03 . Tenant agrees to pay
promptly when due the entire cost of any work done by it upon the demised
premises so that the demised premises at all times shall be free of liens for
labor and materials. Tenant further agrees to save harmless and indemnify
Landlord and Landlord's representatives from and against any and all injury,
loss, claims or damage to any person or property occasioned by or arising out of
the doing of any such work by Tenant or its employees, agents or contractors.
Tenant further agrees that in doing such work it shall employ materials of good
quality and comply with all governmental requirements, and perform such work in
a good and workmanlike manner. In addition, Tenant shall properly insure in
accordance with Article IX, with Landlord (and Landlord's representatives) named
as an additional named insured, against liability for personal and property
injury or damage while any repairs, alterations, other improvements or
installations are in progress.
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ARTICLE VIII
ACCESS TO DEMISED PREMISES BY LANDLORD
SECTION 8.01. Tenant shall permit Landlord, by its officers, employees, or
agents, to enter the demised premises at all reasonable hours on appointment,
except for an emergency in which case no appointment shall be necessary, for the
purpose of inspecting same or of making repairs which Tenant may neglect or
refuse to make in accordance with the terms and conditions of this lease and
also for the purpose of showing the premises to a prospective mortgagee or to
persons wishing to purchase same, or at any time, upon reasonable notice, within
one (1) year prior to the expiration of the term of this lease, to persons
wishing to rent the demised premises or any part thereof; and, during the last
twelve (12) months of the term of this lease, Tenant shall permit the usual
notice of "TO LET" to be placed upon the demised premises and remain thereupon
without molestation and to allow potential tenants to enter the demised premises
during business hours upon reasonable notice.
ARTICLE IX
INSURANCE
SECTION 9.01. Beginning on the date hereof and throughout the term of
this lease and any subsequent retention of possession by Tenant by reason of a
holdover or otherwise, Tenant shall, at its own cost and expense (except to the
extent hereafter provided with respect to the "all risks" property insurance),
obtain and maintain with
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reputable insurance companies the following insurance with respect to the
demised premises: (a) comprehensive general liability insurance, including
coverage for any vehicles operated or located on the demised premises, for the
benefit of Landlord ( and Landlord's representatives) and Tenant as named
insureds and as their respective interests shall appear, in limits of not less
than $5,000,000 for claims of injury or death to or property damage for any one
occurrence and with a per location endorsement providing for a separate
aggregate general liability coverage during a policy period of one year of not
less than $15,000,000 with respect to the demised premises, or a separate policy
solely for the demised premises with not less than the aforesaid limits of
liability for any one occurrence and in the aggregate; and excess liability
coverage of not less than $10,000,000 for any one occurrence and not less than
$30,000,000 in the aggregate during a one year policy period; or such greater
primary and excess liability limits as may be reasonably required by the
Landlord so long as consistent with insurance coverage in buildings in the
locality similarly constructed, occupied and maintained, which insurance shall
be written on a so-called "occurrence basis"; and (b) "boiler and machinery"
insurance for the benefit of Landlord and Tenant as their interests may appear
with respect to the demised premises with limits of not less than $1,000,000,
and (c) insurance on the entire building in which the demised building premises
are located and on the demised parking premises for the benefit of and as named
insureds, and with the insurance proceeds payable to, Landlord and Tenant
jointly, affording "all risks" coverage against loss or damage to the full
amount of the replacement cost (guaranteed replacement value) of such entire
building (less the
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cost of excavation, footings and foundations) and of the demised parking
premises, with a maximum deductible of $50,000, such replacement cost amount to
be reasonably determined from time to time by Landlord, with the initial amount
of such insurance to be $10,000,000, and (d) rental value insurance covering
loss and damage by fire and the other risks or hazards covered under the "all
risks" coverage required by paragraph (c) of this Section 9.01 in an amount
equal to at least the fixed rent for the next twelve (12) months plus for such
twelve months the reasonably estimated additional rent, Charges and any other
sums required under the lease to be paid by Tenant; the rental value policy
shall be written in favor of Tenant, with loss insurance proceeds payable fifty
(50%) percent to Tenant and fifty (50%) percent to Landlord, with Landlord's
portion to be applied as security, in an interest-bearing account for the
benefit of Tenant, against the payments next due under this lease from Tenant to
Landlord of fixed rent, additional rent, Charges and any other sums required
under this lease to be paid by Tenant.
SECTION 9.02. All of the above mentioned insurance policies shall be
obtained by Tenant and certificates of insurance with respect thereto delivered
to Landlord (and if there is a mortgagee of the fee, such certificates shall
also be delivered to such mortgagee), and shall be with such insurance companies
("A" or better rated by a national rating organization and which are licensed to
do business in the State of New York) and in a form satisfactory to any
mortgagee of the fee of the demised premises. Tenant shall pay all of the
premiums thereon, except Landlord shall, upon receipt of invoice from Tenant,
pay fifty (50%) percent of each annual premium for the "all risks" property
insurance;
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provided further, however, that Landlord shall have the option to provide in
lieu of Tenant such "all risks" property insurance and, in such case, there
shall be included in the policy the aforesaid rental value insurance described
in clause (d) of Section 9.01, and pay the premiums therefor in which event
Tenant shall pay to Landlord towards the annual premiums upon written notice
from Landlord an amount equal to one-half of the annual premium which Tenant
most recently paid for such "all risk" property insurance and rental value
insurance.
SECTION 9.03. All such insurance shall contain endorsements to the effect
that such policies will not be changed by reducing the amount, reducing the
scope of the coverage or effecting cancellation without at least thirty (30)
days' prior written notice to the Landlord and any mortgagee. At least twenty
(20) days prior to the expiration of any policy or policies of such insurance,
Tenant shall renew such insurance, by delivering to Landlord (and to any
mortgagee of the fee) certificates of insurance with respect to such renewed
insurance, endorsed in accordance with the provisions of this Article together
with proof of payment of premiums.
SECTION 9.04. Tenant shall not violate, or permit to be violated, any of
the conditions of any of the said policies.
SECTION 9.05. Tenant may comply with its obligations under the provisions
of this Article through use of a so-called blanket policy as well as by use of
so-called umbrella coverage. In such event Tenant employs a blanket policy for
all or part of the
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coverage required hereunder, Tenant shall obtain an endorsement or express
allocation to the demised premises of the amount of insurance required to be
carried hereunder had the risk been insured under a separate policy.
SECTION 9.06. In the event that the fee of the demised premises shall be
subject to any mortgage, the insurance referred to in Section 9.01 shall also be
issued in the name of such mortgagee as a loss payee as its interests may appear
and shall contain a Standard New York Mortgagee Clause. All such insurance
policies referred to in this Section 9.01 shall provide that losses shall be
payable notwithstanding any act or negligence of Tenant or Landlord and shall
provide for waiver of subrogation (both for tort and contractual based
liability) against Tenant and Landlord, as the case may be. Tenant shall not
obtain or carry separate insurance concurrent in form or contributing in the
event of loss with that provided for in Section 9.01, unless Landlord is
included therein as as an additional named insured and loss payee as its
interest may appear and there is a waiver of any subrogation claim aainst
Landlord.
ARTICLE X
RESTORATION OR REPAIR OF PREMISES
SECTION 10.01. In the event of any damage to or destruction of the
demised premises, Landlord, on behalf of Landlord and Tenant (but with Tenant's
full cooperation) shall adjust the loss and settle all claims with the insurance
companies issuing such policies. The parties hereto do irrevocably assign the
proceeds from such insurance policies
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attributable to the damage or destruction of the demised premises for the
purposes hereinafter stated to Landlord to be held by Landlord in constructive
trust, for the benefit of Landlord and Tenant, for repair, restoration,
rebuilding or replacement, or any combination thereof, of the demised premises.
Any proceeds in excess of such proceeds as shall be necessary for such repair,
restoration, rebuilding, replacement or any combination thereof shall be the
sole property of Landlord, and if the proceeds necessary for such repair,
restoration, rebuilding or replacement, or any combination thereof shall be
inadequate to pay the cost thereof, Landlord shall suffer the deficiency.
Tenant agrees that Landlord shall have sole and complete responsibility for
disbursement of the insurance proceeds aforesaid, and Landlord shall be solely
responsible for the repair, restoration, rebuilding, replacement or any
combination thereof, of the demised premises which Landlord shall diligently
complete.
SECTION 10.02. Anything contained herein to the contrary notwithstanding
(i) in the event of a casualty not required to be insured hereunder, or (ii) in
the event such damage or destruction occurs during the last two (2) years of the
term of this lease and the repair and replacement cost of the demised premises
by reason of such casualty shall amount to one third (1/3rd) or more of the
insured amount for total replacement of the demised premises, this lease, at the
election of Landlord, may be terminated provided that notice of termination is
sent by Landlord to Tenant within sixty (60) days following the occurrence of
such damage or destruction, in which event all available insurance proceeds
shall be released to Landlord, free of constructive trust, and without any
obligation to use
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same for the purposes set forth in Section 10.01. Such termination at the
election of Tenant shall not be effective for ninety (90) days after the notice
is given.
SECTION 10.03. In the event, as a result of an occurrence referred to
in this Article X or Article XV, or arising from the repair and restoration
work, Tenant is prevented from operating in the demised premises, such inability
to operate and any inconvenience or loss of business shall not create any
liability of Landlord to Tenant, but Tenant shall continue to be obligated for
and to pay the fixed rent, additional rent, Charges and other sums provided in
this lease to be paid by Tenant; provided, however, Tenant's obligation to pay
the fixed rent, additional rent, Charges and other sums provided in this lease
shall be suspended beginning one year after all governmental approvals for
repair and restoration of the demised premises have been obtained by Landlord
and such suspension shall end when the demised premises have been repaired and
restored and a temporary certificate of occupancy issued so that Tenant can
operate in the demised premises.
SECTION 10.04. The provisions of this Article shall be deemed an express
written agreement governing any case of damage or destruction of the demised
premises by fire or other casualty, and Section 227 of the Real Property Law of
the State of New York, providing for such contingency in the absence of an
express written agreement, and any other law of like import, now or hereafter in
force, shall have no application in such case.
ARTICLE XI
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ASSIGNMENT AND SUBLETTING
SECTION 11.01. Tenant shall not assign or mortgage this lease, or
sublet or permit the occupancy by anyone other than Tenant of all or any portion
of the demised premises, except as hereinafter set forth. Subject to the
"recapture of profit" provisions set forth in Section 11.03, Tenant is hereby
granted the right to sublet each or any combination of the following portions
(all or any part of such portion) of the demised premises (a) the office space
in the demised building premises, (b) the demised parking premises and (c) the
demised building premises other than office space, with the written consent of
Landlord, which shall not be unreasonably withheld or delayed, provided that:
(i) There may be no more than three sublets at any one time for the
demised premises;
(ii) The proposed subtenant is a reputable person or entity of good
character and with sufficient financial worth considering the responsibility
involved, and Landlord has been furnished with reasonable proof thereof;
(iii) The proposed subtenant shall not be a foreign, United States,
State, municipal or other governmental or quasi-governmental body, agency or
department or any authority or other entity which is affiliated therewith or
controlled thereby nor otherwise be entitled, directly or indirectly, to
diplomatic or sovereign immunity. Such subtenant shall be subject to the
service of process in, and the jurisdiction of, the courts located in the City
and State of New York;
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(iv) Each such sublease shall be subject to all of the covenants,
agreements, terms, provisions and conditions contained in this lease, and the
term of any such sublease shall end not later than the expiration of earlier
termination of the term of this lease;
(v) Tenant shall and will remain fully liable for the payment of the
fixed rent, additional rent and other Charges and sums due and to become due
hereunder and for the obligations and performance of all other covenants,
agreements, terms, provisions and conditions in this lease on Tenant's part to
be observed and performed;
(vi) No such sublease shall modify or limit any right or power of
Landlord under this lease or be deemed to constitute a consent on the part of
Landlord to any further sublease, or affect or reduce any obligation of Tenant
hereunder and all such obligations of Tenant shall continue in full force and
effect as obligations of Tenant as principal and not as guarantor or surety, as
though no such subletting had been made;
(vii) Simultaneously with requesting the consent of Landlord, Tenant
shall provide Landlord with a copy of the proposed sublease, and in the event
that Landlord grants its consent, Tenant shall deliver a fully executed copy of
the sublease within five (5) business days after the execution of same.
(viii) The use, occupancy, assignment or subletting to any company,
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corporation, firm or entity which is a parent or a subsidiary, directly or
indirectly, of the Tenant or into which Tenant may be merged or consolidated or
to which substantially all of its assets may be transferred shall not be deemed
an assignment or subletting requiring the prior written consent of the Landlord;
provided, however, that advance written notice must be given to Landlord of the
proposed entity to be given such use, occupancy, assignment or subletting and
the space to be used and for how long a period, and provided, further, that no
such assignment shall relieve Tenant of its obligations under this lease.
SECTION 11.02. Tenant hereby collaterally assigns to Landlord all rents and
other sums due or to become due under any sublease, together with the right to
collect and receive such rents and other sums, provided, however, that so long
as no default shall exist under this lease, and no event shall exist which by
lapse of time or service of notice, or both, has or would become a default under
this lease, Tenant shall have the right to collect and receive such rents and
other sums for its own uses and purposes. Upon the occurrence of a default, and
thereafter for so long as such default shall continue, Landlord shall have
absolute title to such rents and other sums and the absolute right to collect
and receive the same and Tenant hereby consents to and irrevocably authorizes
and directs the then subtenant, upon notice and demand from Landlord of
Landlord's right to receive the aforesaid rents and other sums, to pay to
Landlord such rents and other sums due or to become due under the sublease, and
such subtenant shall have the right to rely on such notice and demand and shall
pay to Landlord such rents and other sums without any obligation or right to
determine the actual existence of any default or event claimed by
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Landlord to be the basis of Landlord's right to receive such rents and other
sums notwithstanding any notice or claim by Tenant to the contrary, and Tenant
shall have no claim or right against any such subtenant for any such rents and
other sums so paid by such subtenant to Landlord but such payments shall be
credited to Tenant's account. Tenant agrees it will not take any action
inconsistent with the assignment of rents contained in this Section 11.02 or
make any other assignment of such rents and other sums, and that any other
assignment shall be void AB INITIO. Tenant will from time to time, upon the
request of Landlord, execute a separate instrument confirming such assignment
and any other instrument of further assurance which Landlord may reasonably
specify to effectuate the provisions of this Section 11.02.
SECTION 11.03. Anything contained in this Article XI to the contrary
notwithstanding, any sublet at a rental in excess ("profit") of the rental per
square foot set forth in Exhibit D applicable for the demised building premises
or the demised parking premises, respectively, for the particular lease year(s)
shall be paid and belong to Landlord. At Landlord's option, such profit shall
be paid to Landlord directly by the sublessee.
ARTICLE XII
SUBORDINATION
SECTION 12.01. Subject to the provisions of this Section 12.01 and Section
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12.03, this lease and the leasehold estate created hereby and any and all rights
herein contained or created hereunder are and shall be subject and subordinate
in all respects whatsoever to the lien of any mortgage or mortgages or hereafter
placed on the fee of the demised premises for the full amount and principal sums
set forth therein and to all renewals, modifications, consolidations,
replacements, substitutions and extensions thereof and to any and all advances
heretofore and hereafter made thereon including, but not limited to, fees and
other disbursements and charges incurred in connection therewith; provided,
however, that any subordination shall not be effective unless and until such
mortgagee executes a document containing "nondisturbance" provisions in favor of
Tenant to the effect that (i) Tenant's use, enjoyment and peaceful possession
(and that of any permitted sublessee) shall not be disturbed so long as Tenant
complies with the terms of this lease, (ii) all of Tenant's rights under this
lease and Landlord's obligations hereunder (including, but not limited to, the
use and application of insurance and condemnation proceeds) shall be fully
honored, and (iii) Tenant shall not be named as a party defendant in any
foreclosure proceeding. Landlord represents and warrants that there currently
are no mortgages on the demised premises. Subject to the provisions of Section
12.03, the foregoing subordination shall be self-operative and no further
instrument of subordination shall be necessary to effect such subordination.
In confirmation of such subordination (but subject to the provisions of Section
12.03), however, Tenant shall execute, acknowledge and deliver promptly and
without charge any certificate or further agreement of subordination that any
such fee mortgagee may request, and if Tenant shall fail at any time
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to execute, acknowledge and deliver the same, the Tenant does hereby irrevocably
make, constitute and appoint Landlord such attorney-in-fact for that purpose.
SECTION 12.02. In the event that any holder of any fee mortgage or anyone
claiming from or through any such holder or any purchaser of such holder's
estate in any foreclosure sale shall enter into and lawfully become possessed of
the demised premises or shall otherwise succeed to the rights of the Landlord
under this lease, either through foreclosure of any fee mortgage or the
acquisition of the estate of Landlord thereby mortgaged, Tenant agrees, at the
request of such successor landlord, to attorn to such successor landlord and
recognize successor landlord as its landlord under this lease and to execute,
upon request of such successor landlord, an attornment agreement in form
reasonable satisfactory to such successor landlord.
SECTION 12.03. Anything contained herein to the contrary notwithstanding,
the parties hereto agree that a precondition to Tenant's subordinating its
leasehold interest hereunder to the lien of any future mortgage or other
superior interest is the obtaining for Tenant of so-called "recognition and
nondisturbance" protections. Accordingly, the parties have agreed that Tenant
shall not be required to subordinate its leasehold interest hereunder except
pursuant to the terms of an agreement containing the recognition and
nondisturbance protections contained or referred to in this Article XII.
ARTICLE XIII
DEFAULT BY TENANT; CONDITIONAL LIMITATION
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SECTION 13.01. Each of the following shall be deemed a default by the
Tenant and a breach of this lease:
(i) If the fixed rent or additional rent or Charges or any other sum of
money payable by Tenant to Landlord under this lease shall not be paid as and
when the same shall become due and payable, or if Tenant shall fail to comply
with the provisions of Article XIX, and such failure to pay or comply shall
continue for a period of five (5) business days following written notice from
Landlord (but no further notice shall be required for the balance of any
12-month period after Landlord sends a second late payment or compliance notice
in any 12-month period), after such payment is due or compliance required;
(ii) If the Tenant shall fail to comply with any term, agreement,
condition or covenant of this lease, other than the payment or compliance set
forth in paragraph (i) above of this Section 13.01, and such failure to comply
shall continue for a period of fifteen (15) business days after written notice
by Landlord to Tenant, provided, however, if compliance cannot reasonably be
effected within such fifteen (15) business day period, it shall not be a default
if Tenant commences such compliance within such fifteen(15) business days period
and diligently pursues and effects such compliance within a reasonable period
thereafter, and otherwise complied with any additional conditions of any grace
period provided for in this lease;
(iii) If Tenant shall file under any section or chapter of the United
States
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Bankruptcy Code, as amended, or under any similar law or statute of the United
States or any State; or Tenant shall be adjudged bankrupt or insolvent in any
such proceedings filed against Tenant; or an involuntary petition to have Tenant
adjudged bankrupt is not dismissed within sixty (60) days from the filing
thereof; or if there is an attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the demised premises or of
Tenant's interest in this lease;
(iv) If a receiver or trustee is appointed for all or a substantial part
of the assets of Tenant and such appointment is not dismissed within thirty (30)
days thereof; or
(v) If Tenant becomes insolvent or makes a general assignment for the
benefit of creditors or enters into a composition with its creditors generally
or shall take any benefit under any insolvency or bankruptcy act, or if Tenant
admits in writing its inability to generally pay its debts as they become due.
SECTION 13.02. In any of such events of default, following the expiration
of the grace period, if any, above referred to, and if the said default shall
not have been theretofore cured, Landlord shall have the right thereafter to
terminate and end this lease and the term hereby granted, as well as all of the
right, title and interest of the Tenant hereunder, by giving to the Tenant a
written notice of the termination of this lease, and upon the expiration of the
time fixed in such termination notice, which shall not be less than three (3)
business days after the giving thereof, this lease and the term hereby granted,
as well as all of the right, title and interest of the Tenant hereunder, shall
wholly cease and
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expire in the same manner, and with the same force and effect (except as to the
Tenant's liability), as if the expiration of time fixed in such notice were the
end of the term herein originally demised; provided, however, that with respect
to a failure to make any payment described in paragraph (i) of this Section
13.01 (but not with respect to Landlord's right to draw down the letter of
credit), Landlord shall not exercise its right of termination until it has given
an additional written notice to Tenant of such failure of payment and at least
thirty (30) days have expired since such payment was originally due; provided,
further, however, that no such additional written notice or additional time
period shall be required if, within the preceding twelve month period, Landlord
has sent two such additional late payment notices, it also being understood that
nothing herein shall preclude Landlord from bringing a nonpayment summary
proceeding or otherwise suing to recover the payment; and Tenant shall then
immediately quit and surrender to Landlord the demised premises, and the
Landlord may enter into or repossess the demised premises, whether by summary
proceedings, action in ejectment or otherwise; and the Tenant hereby waives any
and all rights to redeem this lease, and, following the termination of this
lease, Tenant hereby also waives the service of any further notice demanding
rent, or of intention to re-enter, as provided by the Real Property Actions and
Proceedings Law or by any acts amendatory thereof or supplemental thereto or by
any present or future statute, law or decision. Tenant and any and all persons
claiming rights through Tenant do hereby waive, surrender and relinquish all
right or privilege by present or future law or decision to redeem the demised
premises for the term herein demised after having been lawfully dispossessed or
lawfully
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ejected therefrom by process of law or having executed a written surrender
agreement for the demised premises. Tenant further waives its right and agrees
not to interpose any counterclaim or offset in any summary proceedings or action
in ejectment which may be brought by Landlord against Tenant unless Tenant's
waiver thereof will prevent Tenant from commencing and prosecuting such
counterclaim or offset in a separate action or proceeding, and Tenant also
waives any right to consolidate or seek to stay or dismiss any such summary
proceeding or action in ejectment with or because of any other action or
proceeding commenced by Tenant.
SECTION 13.03. In the event of a cancellation or termination of this lease
by the issuance of a warrant of dispossess or judgment of ejectment based upon
an uncured default of Tenant, Tenant shall, nevertheless, remain liable to the
Landlord in a sum equal to the fixed rent, additional rent (including Tenant's
share of Real Estate Taxes), Charges and other sums provided in this lease to be
paid by Tenant, for the balance of the term herein originally demised, together
with such reasonable costs and reasonable expenses as Landlord may incur for
reasonable legal expenses, reasonable attorneys' fees, including those incident
to the recovery of possession, brokerage fees and expenses of putting the
demised premises in good order, or for preparing the same for rerental; and the
Landlord may, without notice, repair or alter or redecorate the demised premises
in such reasonable manner as the Landlord may deem necessary or advisable and/or
let or relet the demised premises, any and all parts thereof or included as part
of a letting of all or part of the Property, for a term or terms which may, at
Landlord's option, be less than or exceed the
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remainder of the said original term, in the Landlord's name, or as the agent of
the Tenant , and may grant concessions or free rent without thereby in any way
affecting Tenant's liability for the fixed rent, additional rent (including
Tenant's share of Real Estate Taxes), Charges and other sums provided in this
lease to be paid by Tenant, for the period of such concession or free rent;
provided, however, that if the new rent is higher during the remaining period of
the original stated term of this lease, Tenant shall receive a credit for such
rental difference as an offset (but not any affirmative receovery against
Landlord) up to the aggregate amount of Tenant's liability to Landlord;
provided, further, however, that, Landlord shall have no obligation to seek to
let or relet the demised premises.
SECTION 13.04. Should any rent so collected by Landlord, after the payments
aforesaid in Section 12.03, be insufficient fully to pay to the Landlord a sum
equal to the fixed rent, additional rent (including Tenant's share of Real
Estate Taxes), Charges and other sums of money payable by Tenant under this
lease ("deficiency"), the balance of such deficiency shall be paid by Tenant on
the rent days specified in this lease; that is, upon each of such rent days, the
Tenant shall pay to the Landlord the amount of the deficiency then existing; and
the Tenant hereby agrees to be and remain liable for any such deficiency. The
right of Landlord to recover from Tenant the amount of such deficiency, or, if
there shall be no reletting, a sum equal to the amount of fixed rent, additional
rent (including Tenant's share of Real Estate Taxes), Charges and any other sum
of money payable by Tenant under this lease, shall survive the issuance of any
warrant of dispossess, ejection judgment or other termination of this lease; and
the Tenant hereby expressly waives any
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defense that might be predicated upon the issuance of such warrant of
dispossess, ejection judgment or other termination or cancellation of the lease
term. As an alternative to Landlord being entitled to collect the deficiency on
each of the rent days specified in this lease, Landlord may elect to require
Tenant to pay to Landlord, as damages in a lump sum, the amount by which (a) the
sum of the fixed rent, additional rent (including Tenant's share of Real Estate
Taxes), Charges and other sums payable by Tenant under this lease that would
have (as reasonably estimated) accrued for the balance of the demised original
lease term, exceeds (b) the aggregate fair market rental value (including
additional rent and other sums a tenant would pay as reasonably estimated) of
the demised premises for the same period, both discounted to present worth at a
rate equal to the prime rate in effect on the date of the termination of this
lease as reported in the eastern edition of THE WALL STREET JOURNAL.
SECTION 13.05. A suit or suits for the recovery of such deficiency or
damages, or for a sum equal to any installment or installments of fixed rent,
additional rent, Charges and other sums of money payable by Tenant under this
lease, may be brought by the Landlord, from time to time, at its election, and
nothing herein contained shall be deemed to require the Landlord to wait until
the date whereon this lease, or the term hereof, would have expired by
limitation, had there been no such default by the Tenant or no such termination
or cancellation.
SECTION 13.06. The acceptance of performance by a party, including the
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acceptance of rent by Landlord, with knowledge of any breach or default in the
performance of the agreements, conditions, covenants, obligations or terms of
this lease by the other, shall not be deemed to be a waiver of any provision of
this lease or of any right to take action on account of any such breach or
default with the exception of the non-payment of rent so accepted prior to the
date of cancellation or termination fixed by Landlord's notice.
SECTION 13.07. No act or thing done by Landlord or its agents or employees
shall be deemed an acceptance of a surrender of the demised premises in the
absence of a writing signed by Landlord accepting such surrender.
SECTION 13.08. The failure of a party after notice to enforce any
agreement, condition, covenant, obligation or term of this lease, by reason of
its breach by the other, shall not be deemed to void or affect the right of such
party to enforce the same agreement, condition, covenant, obligation or term on
the occasion of a continuing or a subsequent default or breach.
ARTICLE XIV
REMEDIES OF LANDLORD; REMEDIES OF TENANT
SECTION 14.01. In the event that Tenant shall default in the performance of
any of the agreements, conditions, covenants or terms in this lease contained,
which default remains uncured after notice given as provided for in Article XIII
hereof, Landlord may
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(but shall not be obligation to) upon three (3) days' further written notice (or
such shorter time if an emergency), or at any time thereafter, perform the same
for the account of Tenant. Landlord shall have the right to enter (by force, if
an emergency only, or otherwise) the said demised premises for the purpose of
correcting or remedying such default and to remain therein until the same shall
have been corrected or remedied.
SECTION 14.02. Whenever Landlord shall incur any expense by reason of the
performance of any of the terms, covenants or conditions of this Lease on the
Tenant's part to be performed, by reason of the default of Tenant in performing
the same, the cost or expense incurred by Landlord shall be and be deemed to be
additional rent and shall be forthwith due and payable to Landlord with the next
succeeding monthly installment of fixed rent due hereunder (together with
interest from the date the cost or expense is incurred at an amount equal to two
(2%) percent over the then prime rate of interest as reported in the eastern
edition of THE WALL STREET JOURNAL).
SECTION 14.03. No performance by Landlord of any of the obligations on
Tenant's part to be performed under this lease shall be or be deemed to be a
waiver of the Tenant's default in failure to perform the same or affect
Landlord's right to terminate this lease by reason of such default nor shall the
performance thereof by Landlord release or relieve Tenant from any obligations
on its part to be performed under this lease unless Tenant reimburses Landlord
for same, provided that such reimbursement is timely made before the expiration
of the grace period for cure and it is a default which can be cured by
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such reimbursement..
SECTION 14.04. In the event of a breach, or threatened breach, by either
party of any of the agreements, conditions, covenants or terms of this lease,
the non-breaching party shall have the right of injunction to restrain the same,
and the right to invoke any remedy allowed by law, or in equity, as if specific
remedies, indemnity or reimbursement were not herein provided for.
SECTION 14.05. The rights and remedies given to the parties in this lease
are distinct, separate and cumulative rights and remedies, and no one of them,
whether or not exercised by either party, shall be deemed to be in exclusion of
any of the others.
SECTION 14.06. If Landlord shall breach, or fail to perform or observe,
Landlord's obligations with respect to the use and application of insurance or
condemnation proceeds, or with respect to Article V, and if Landlord shall not
cure such breach or failure within twenty (20) days after notice from Tenant
specifying such breach or failure (or, if such breach or failure shall
reasonably take more than twenty (20) days to cure, and Landlord shall not have
commenced the same within the twenty (20) days and diligently prosecuted the
same to completion), Tenant may, at Tenant's option, without waiving any claim
for damages for breach of agreement, at any time thereafter cure such breach or
failure for the account of Landlord and any amount paid or contractual liability
incurred by Tenant in so doing shall be deemed paid or incurred for the account
of Landlord and Landlord agrees to reimburse Tenant therefor (together with
interest thereon
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at two (2%) percent above the prime rate as reported in the eastern edition of
THE WALL STREET JOURNAL) and save Tenant harmless therefrom; provided that
Tenant may cure any such breach or failure as aforesaid prior to the expiration
of said waiting period, without notice to Landlord if an emergency situation
exists, or after notice to Landlord, if the curing of such breach or failure
prior to the expiration of said waiting period is reasonably necessary to
protect the demised premises or Tenant's interest therein or to prevent injury
or damage to persons or property. Any amount not reimbursed by Landlord
following final judgment may be applied by Tenant as a credit against any and
all of Tenant's next payments due hereunder.
ARTICLE XV
CONDEMNATION
SECTION 15.01. If, during the term of this lease, the whole of the demised
premises, or such portion thereof as will make the demised premises, in
Landlord's and Tenant's business judgment reasonably exercised with respect to
Tenant's ability to properly operate Tenant's business at the demised premises
in substantially the same manner as in the past, inadequate and unsuitable for
the purposes herein leased (whether because of loss of square footage "under
roof"; parking, ingress and egress, access from nearby streets or otherwise), be
condemned by any government agency or other legally constituted authority
authorized to condemn, then the term of this lease shall cease and expire at the
date when possession thereof is taken by said condemnor in or by said
condemnation proceeding or by purchase in lieu of condemnation, and the fixed
rent,
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additional rent, Charges and other sums payable by Tenant under this lease shall
be accounted for and apportioned as between Landlord and Tenant as of that date.
SECTION 15.02. If only a part of the demised premises shall be condemned or
purchased in lieu of condemnation and the remaining portion of the demised
premises shall be adequate and suitable for use by Tenant for its business
purpose as determined by Landlord and Tenant in their business judgment
reasonably exercised with respect to Tenant's ability to properly operate
Tenant's business at the demised premises in substantially the same manner as in
the past, then this lease shall continue in full force and effect except that
(i) the fixed rent on and after possession is taken or purchased by the
condemnor shall be diminished (A) by the product of (x) the square feet floor
area of the demised building premises so condemned or purchased, multiplied by
(y) the dollar amount per square foot for the applicable lease year as set forth
in Exhibit "D," PLUS (B) by the product of (x) the square feet of the usable
parking area of the demised parking premises so condemned or purchased,
multiplied by (y) the dollar amount per square foot for the applicable lease
year as set forth in Exhibit "D," and (ii) Tenant's proportionate share of Real
Estate Taxes and other applicable Charges in respect of the land and building in
which the demised building premises are located, shall be reduced to the
percentage that the square feet floor area of the demised building premises
remaining after such condemnation or purchase bears to the total square feet
floor area of the building in which such demised building premises are located
remaining after such condemnation or purchase.
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SECTION 15.03. In the event of any condemnation or purchase in lieu of
condemnation of all or part of the demised premises, Landlord shall be entitled
to receive the entire award of such condemnation or purchase price of such
purchase in lieu of condemnation, including any award or purchase price
attributable to the value of the estate vested by this lease in Tenant. Tenant
hereby expressly assigns to Landlord any and all right, title and interest of
Tenant now or hereafter arising in or to any such award or purchase price and
expressly agrees that Tenant shall be entitled to receive no part of such award
or purchase price, except for (i) fixtures, (ii) unamortized portion of
leasehold improvements based on an original cost of $1,500,000 and amortized
straight line over twenty (20) years beginning July 1, 1997, (iii) moving
expenses, (iv) loss of business and (v) other matters which would not reduce
Landlord's award.
SECTION 15.04. In the event of a partial condemnation pursuant to which
this lease is not cancelled, all condemnation (or purchase in lieu of
condemnation) proceeds received shall be used by Landlord, to the extent
necessary, to restore the demised premises to a structural whole with
appropriate architectural conformity, given the circumstances.
ARTICLE XVI
ESTOPPEL CERTIFICATE
SECTION 16.01. Each party agrees at any time and from time to time upon not
less than five (5) business days' prior notice from the other party to execute,
acknowledge and deliver to the requesting party a statement in writing
certifying that this lease is
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unmodified and in full force and effect (of if there have been modifications
that the same is in full force and effect as modified and stating the
modifications), and the dates up to which the fixed rent, additional rent,
Charges and other sums required to be paid by Tenant under this lease have been
paid, and stating whether to the best of knowledge of the signer the Tenant or
Landlord is in default in keeping, observing or performing any term, covenant,
agreement, provision, condition or limitation contained in this lease (without
taking into account any grace period) and, if in default, specifying each such
default, it being intended that any such statement delivered pursuant to this
Article may be relied upon by the other party or any prospective purchaser of
the fee or mortgagee thereof or any assignee of any mortgagee upon the fee of
the demised premises.
ARTICLE XVII
QUIET ENJOYMENT
SECTION 17.01. Tenant, so long as not in default hereunder, beyond any
applicable grace or cure period, shall peaceably and quietly have, hold and
enjoy the demised premises without any manner of suit, trouble or hindrance of
and from Landlord or any person claiming by, through or under Landlord, subject
to any right of eminent domain and the other provisions of this lease,
including, without limitation, ARTICLES I and XII.
ARTICLE XVIII
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SURRENDER
SECTION 18.01. Tenant shall on the last day of the term hereby granted, or
upon the sooner termination of the said term, surrender to Landlord the demised
premises, and all buildings, alterations, replacements and changes, with all
equipment in, or appurtenances thereto, except Tenant shall remove all movable
trade fixtures installed by Tenant and other personal property situated on the
demised premises that is not owned by Landlord and any damage caused by such
removal shall be borne by Tenant. The demised premises shall be left broom
clean with no rubbish, and in good order, condition and state of repair no worse
than on the date hereof, reasonable wear and tear excepted; provided further,
that Tenant may leave intact any changes and alterations made pursuant to
Article VII. Tenant shall hold Landlord harmless from all damages resulting
from Tenant's failure to surrender the demised premises as required by this
Section, including, without limitation, claims made by a succeeding lessee or
loss of rent by Landlord resulting from Tenant's failure to surrender the
demised premises.
SECTION 18.02. Any trade fixtures or personal property belonging to Tenant
if not removed at or before such expiration or sooner termination of this lease
and if Landlord so elects, shall be deemed abandoned and become the property of
Landlord without any payment or offset therefor. If Landlord shall not so
elect, Landlord may remove such fixtures or property from the demised premises
and store them at Tenant's risk and expense, or dispose of them in any manner
without liability or accounting to
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Tenant, and Tenant waives all claims against Landlord resulting from Landlord's
retention or disposition of such fixtures or property. Tenant shall repair and
restore, and save Landlord harmless from, all damage to the demised premises
caused by such removal, whether by Tenant or by Landlord (except for Landlord's
willful or grossly negligent acts or those of its employees, agents or
contractors).
SECTION 18.03. If Tenant remains in possession of the demised premises
beyond the expiration or sooner termination of this lease, with the express or
implied consent of Landlord, such holding over shall be construed to be a
tenancy from month-to-month only, and such month-to-month tenancy shall be
subject to the other agreements, covenants, conditions, and obligations herein
contained, including that Tenant shall pay as monthly rent the sum of (i) the
amount it paid or was required to pay as monthly installments of fixed rent
during the month which immediately preceded the end of the lease term, PLUS
(ii) an amount equal to multiplying the amount set forth in clause (i) by
twenty-five (25%) percent; and all additional rent, Charges and all other sums
which Tenant is required to pay under this lease shall continue to be a
liability of and timely paid by Tenant.
SECTION 18.04. Nothing in this Article shall be construed as constituting
permission by Landlord for Tenant to retain possession of the demised premises
or any part thereof after the expiration or sooner termination of this lease.
ARTICLE XIX
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SECURITY DEPOSIT; LETTER OF CREDIT
SECTION 19.01. As security for the faithful performance and observance by
Tenant of the terms, provisions and conditions of this lease, Tenant,
simultaneous with the execution and delivery of this lease, shall deposit with
Landlord the sum of Three Hundred Ninety-Two Thousand Four Hundred Ninety and
50/100 ($392,490.50) Dollars in cash; not later than June 1, 2002, such
additional sum sufficient to bring such security deposit to Four Hundred Thirty
Five Thousand Six Hundred Sixty and no/100 ($435,660) Dollars; not later than
June 1, 2007, such additional sum sufficient to bring such security deposit to
Four Hundred Eighty Four Thousand Nine Hundred Eighty-Eight and 83/100
($484,988.83) Dollars; and not later than June 1, 2012, such additional sum
sufficient to bring such security deposit to Five Hundred Forty Nine Thousand
Six Hundred Nine and 24/100 ($549,609.24) Dollars; or, at the option of Tenant
which may be exercised at any time during the term of this lease, deliver to
Landlord an unconditional, clean and irrevocable stand-by letter of credit in
the aforesaid respective amounts on or before the respective dates aforesaid.
Any letter of credit shall be substantially in the form annexed hereto as
Exhibit "E" and shall be issued in favor of Landlord as beneficiary by a branch
of a bank which is chartered in the State of New York or is a national bank,
which branch issuing the letter of credit shall be in the City of New York, and
which bank and branch thereof is reasonably acceptable to Landlord. The letter
of credit shall be issued for a duration of at least one year. Tenant shall
cause such letter of credit to be renewed or a replacement letter of credit
issued during the term of this lease at least thirty (30) days prior
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to the stated expiration date of the then outstanding letter of credit and
deliver the original thereof to Landlord. In the event that not less than
thirty (30) days before the stated expiration date of the then outstanding
letter of credit Tenant has not furnished Lessor with a renewal or replacement
letter of credit complying with the provisions of this Article (or the cash
equivalent), Landlord may, immediately and without giving notice to Tenant, draw
upon the letter of credit for the entire amount of such letter of credit, and
hold and dispose of such amount as security pursuant to the provisions of this
Article. The letter of credit shall provide for payment against Landlord's
draft, at sight, at one time or from time to time up to an aggregate amount
equal to the then face amount of the letter of credit accompanied by a statement
signed by an officer of Landlord substantially as follows: "The amount of this
drawing US$__________ under The Chase Manhattan Bank, New York [or name of other
bank] letter of credit number _____ represents funds due us as balance properly
and legally due by Petroleum Heat and Power Co., Inc."
SECTION 19.02. If such security is cash, Landlord shall be required to
maintain such security in a separate interest bearing account or, at Tenant's
election upon reasonable advance written notice to Landlord, to have such
security invested in Treasury bills or bank money market accounts or
certificates of deposit, provided that such cash equivalent instruments shall
have maturity dates not exceeding thirty (30) days. The interest, except as
otherwise specifically required by the laws of the State of New York, shall be
accumulated and become part of the security to be applied or returned to Tenant,
as the case may be, pursuant to the provisions of this Article (and applied to
required
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increases in security), provided, however, that Landlord shall pay over to
Tenant such interest annually at Tenant's request. Landlord shall be entitled
to pay to itself annually from the interest earned on such cash or cash
equivalent security an administrative fee of $2,000.
SECTION 19.03. Upon the occurrence of an event of default under this
lease, Landlord may use, apply or retain the whole or any part of the security
so deposited to the extent required for the payment of any fixed rent,
additional rent, Charges or any other sum payable by Tenant under this lease as
to which Tenant is in default or for any sum which Landlord may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease, including but not limited to, any
damages or deficiency referred to in Article XIII, whether such damages or
deficiency accrue before or after legal proceedings to recover possession or
other re-entry by Landlord or for any other purpose set forth herein.
SECTION 19.04. In the event the security or any part thereof is drawn upon
and applied pursuant to Section 19.03, Tenant shall within five (5) business
days after written demand by Landlord deposit with Landlord as security a sum in
cash or by letter of credit (in the same form as the most recent issued or
renewed letter of credit) equal to the amount so drawn upon and applied. In the
event that Tenant shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this lease, the security (together with
accrued interest, less administration fee, on the security, if
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deposited in cash), to the extent not applied, shall be returned to Tenant at
the expiration date of this lease, provided, however, that possession of the
demised premises is delivered to Landlord in accordance with the provisions of
Article XVIII of this lease.
SECTION 19.05. In the event of a sale or assignment by Landlord of the
demised premises or of all or any part of the Property including the demised
premises, Landlord shall have the right to transfer the security to the vendee
or assignee and after such transfer, upon notice to Tenant of the name and
address of the new landlord, Landlord thereupon shall be deemed released by
Tenant from all liability for the return of such security; and Tenant shall look
solely to the new landlord for the return of said security; and it is agreed
that the provisions hereof shall apply to every transfer or assignment made of
the security to a new landlord. Tenant further agrees and covenants that it
will not assign or encumber or attempt to assign or encumber the cash or letter
of credit deposited or required to be deposited under this lease herein as
security and that neither Landlord nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
ARTICLE XX
MISCELLANEOUS PROVISIONS
SECTION 20.01. HAZARDOUS MATERIALS.
(a) Tenant shall keep the demised premises free of Hazardous Materials
(as hereinafter defined), except as is typical for Tenant's then use which
initially shall include, without limitation, the maintenance of vehicles with
the attendant storing and using of oil, greases, solvents, etc., and the storing
of waste materials derived therefrom, and it is understood that trucks and
vehicles stored and/or parked on or in the demised premises may have fuel oil in
such truck or vehicle, but Tenant shall be in all respects responsible for
compliance with all laws and regulations pertaining to such fuel oil, greases,
solvents, etc. and the storing of such waste materials as a Hazardous Material
and
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for the indemnification of Landlord and Landlord's representatives with respect
thereto as further provided in this paragraph (a). Without limiting the
foregoing, Tenant shall not cause or permit the demised premises or any part
thereof to be used to generate, manufacture, refine, produce or process
Hazardous Materials, nor shall Tenant cause or permit, as a result of any
intentional or unintentional act or omission on the part of Tenant or any
permitted subtenants or contractors or other invitees, in each case, of Tenant,
a release of Hazardous Materials in or onto the demised premises. Tenant shall
comply with, and ensure compliance by any permitted subtenant or contractors or
other invitees of Tenant with, all applicable federal, state and local laws,
ordinances, rules and regulations relating to Hazardous Materials, by whomever
triggered, and shall obtain and comply with, and ensure that all permitted
subtenants or contractors or other invitees of Tenant comply with, any and all
approvals, registrations or permits required thereunder. In addition, Tenant
shall comply with and ensure compliance by all permitted subtenants or
contractors or other invitees of Tenant with, all federal, state and local laws
and regulations applicable to the demised premises dealing with asbestos.
(b) Tenant hereby covenants and agrees that Tenant shall defend,
indemnify, and hold harmless Landlord and Landlord's representatives from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs, or expenses of whatever kind or nature, known or unknown,
contingent or otherwise, including, without limitation, reasonable attorneys'
and experts' fees, arising out of, or in any way related to (i) the presence,
disposal, release, or threatened release of any Hazardous
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Materials on, in or from the demised premises, (ii) any personal injury
(including, without limitation, wrongful death) or property damage (real or
personal) arising out of or related to such Hazardous Materials; (iii) any
lawsuit brought or threatened, settlement reached, or government order relating
to such Hazardous Materials, and/or (iv) any violation of laws, orders,
regulations, requirements or demands of governmental authorities, which are
based upon or in any way related to such Hazardous Materials, including, without
limitation, attorney and expert fees, investigation and laboratory fees, court
costs, and litigation expenses. The foregoing covenant by Tenant to indemnify
and hold harmless Landlord and its representatives shall not apply if Tenant
establishes that neither it nor its invitees, contractors or permitted
sublessees introduced or caused the presence, disposal, release or threatened
release of such Hazardous Materials on, in or from the demised premises.
(c) For the purpose of this Section 20.01, the term "Hazardous
Materials" shall mean (i) any solid or liquid wastes (including hazardous
wastes), hazardous air pollutants, hazardous substances (including asbestos,
polychlorinated biphenyls and petroleum), hazardous chemical substances and
mixtures, toxic substances, pollutants and contaminants, as such terms are
defined in the National Environmental Policy Act (42 U.S.C. Section 4231 et
seq.), the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (42 U.S.C. Sections 9601 et seq.), as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("CERCLA"), the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 et seq.), as amended by the Hazardous
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and Solid Waste Amendments of 1984, the Hazardous Materials Transportation Act,
the Toxic Substances Control Act, the Clean Water Act (33 U.S.C. Section 1321
et seq.), the Clean Air Act, the Occupational Safety and Health Act (29 U.S.C.
Section 651 et seq.), Article 30 of the New York State Labor Law, and/or in any
regulations promulgated pursuant thereto, and/or in any other applicable
federal, state or local law, rule, regulation or ordinance governing hazardous
or toxic substances and (ii) any substance, water or material which has been
determined by any federal, state or local government authority to be capable of
posing a risk of injury to health, safety or property, including, but not
limited to, all of those materials, wastes and substances designated as
hazardous or toxic by the United States Environmental Protection Agency, the
United States Department of Labor, the United States Department of
Transportation and/or any other federal, state or local governmental agency now
or hereafter authorized to regulate materials and substances in the environment.
(d) The provisions of this Section 20.01 shall be in addition to any
and all other obligations and liabilities Tenant may have to Landlord at common
law, and shall survive the termination of this lease.
SECTION 20.02. WAIVER OF TRIAL BY JURY; WAIVER OF COUNTERCLAIMS. It is
mutually agreed by and between Landlord and Tenant that the respective parties
shall and they hereby do waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other on any
matters whatsoever arising out of or in any way connected with this lease,
Tenant's use or occupancy of the demised premises,
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and/or (except to the extent the law of New York proscribes such waiver) any
claim of injury or damage to person or property. Tenant waives the right to
interpose any offset or counterclaim in any summary proceeding or any other
action instituted by Landlord arising out of this lease except a compulsory
counterclaim (I.E., a counterclaim which if not asserted in such proceeding or
action by Landlord would be precluded from being asserted as a claim in any
other action or proceeding), and Tenant waives the right to apply for a
consolidation or stay of such summary proceeding or other action by Landlord
based on any action or proceeding commenced by Tenant.
SECTION 20.03. HEADINGS AND MARGINAL NOTES. The headings and marginal
notes are inserted only as a matter of convenience and for reference and in no
way define, limit or describe the scope or intent of this lease or any provision
thereof nor in any way affect this lease.
SECTION 20.04. NO MERGER OF ESTATES. There shall be no merger of this
lease or of the leasehold estate hereby created with any other estate in the
demised premises or Property by reason of the fact that the same person acquires
or holds, directly or indirectly, this lease or the leasehold estate hereby
created or any interest herein or in such leasehold estate as well as any other
estate in the demised premises or any interest in such other estate.
SECTION 20.05. NO MONEY CLAIMS. Wherever in this Lease Landlord's consent
or approval is required, if Landlord shall not give such consent or approval,
Tenant
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in no event shall be entitled to make, nor shall Tenant make, any claim, and
Tenant hereby waives any such claim, for monetary damages (nor shall Tenant
claim any monetary damages by way of set-off, counterclaim or defense), based
upon the assertion by Tenant that Landlord unreasonably withheld or unduly
delayed its consent or approval.
SECTION 20.06. ADJACENT EXCAVATION; SHORING. If an excavation or other
substructure work shall be made upon land adjacent to the demised premises, or
shall be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as shall be necessary to preserve the outer
walls of the demised premises from injury or damage and to support the same by
proper foundations without any claim for damages or indemnity against Landlord,
or diminution or abatement of fixed rent, additional rent, charges or other sums
required to be paid by Tenant under this lease.
SECTION 20.07. NO LIGHT, AIR OR VIEW EASEMENT. Tenant recognizes and
agrees that no easement for light, air or view is included in this demise, and
that any diminution or shutting out of light, air or view by any structure
presently or hereafter erected on lands adjacent to the demised premises
(whether or not owned by Landlord) shall in no way affect this Lease or impose
any liability on Landlord.
SECTION 20.08. GOVERNING LAW. This agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to a contract made in and to be performed wholly within the State of
New York.
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SECTION 20.09. SUCCESSORS. The agreements, terms, covenants, obligations
and conditions of this lease shall bind and inure to the benefit of Landlord and
Tenant, their respective successors by operation of law and any successor to
Landlord's fee ownership of the Property or any part thereof which includes the
demised premises.
SECTION 20.10. NOTICES. Notice wherever provided for herein shall be in
writing and be given by certified or registered mail, return receipt requested,
or by hand delivery, or by next business day recognized courier service at the
address herein specified of the party to which such notice is to be given,
unless a different address has been furnished by such party to the party giving
such notice, in which case the latter address shall be used, and shall be deemed
to have been given (i) on the third business day following such certified or
registered, return receipt requested, mailing in a postage prepaid proper
wrapper, or (ii) on the date of delivery if hand delivered or sent by courier
service.
Any and all notices required to be given to the Landlord under the terms of
this lease shall, until further designation, be given to Landlord at the address
as set forth at the head of this lease, with a copy to Richenthal, Abrams &
Moss, 122 East 42nd Street, New York, N.Y. 10168, Attention: Arthur Richenthal,
Esq. Any and all notices required to be given to the Tenant under the terms of
this lease shall, until further designation, be given to Tenant at its address
as set forth at the head of this lease, Attn: Joseph P. Cavanaugh, Senior
Vice-President. Any part shall have the right from time to time at any time,
upon at least five (5) business days prior written notice delivered pursuant to
the terms hereof, to change its respective address and to specify any other
address within the
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United States of America, provided said new address is not a post office box.
SECTION 20.11. RECORDING OF LEASE. Tenant and Landlord will join in an
execution of a memorandum of lease in proper form for recordation in the proper
office or offices wherein the demised premises are situated, setting forth the
existence and term of this lease, in form attached hereto as Exhibit "F". Upon
request by Landlord, Tenant shall execute a discharge of memorandum of lease
which shall be held, in escrow, by the attorney for Landlord, pursuant to an
escrow agreement mutually and reasonably satisfactory to the parties hereto.
SECTION 20.12. MERGER PROVISION. This lease covers the entire agreement
and understanding between the parties hereto concerning the demised premises,
and no verbal agreements or implied covenants shall be held to vary the
provisions hereof, notwithstanding any statute, law or custom to the contrary.
All understandings, negotiations and agreements heretofore made between the
parties hereto are merged in this lease, which alone fully and completely
expresses the agreement between Landlord and Tenant and any executory agreement
hereafter made shall be ineffective to change, modify, waive, discharge or
effect an abandonment of this lease or any provision thereof, in whole or in
part, unless such executory agreement is in writing and signed by an authorized
person of the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
SECTION 20.13. RIGHT TO ERECT SIGNS. Tenant shall not place or install
any
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sign or like contrivance on or to any window or on or to the front, rear or roof
of the demised building premises or on the demised parking premises, without
obtaining Landlord's prior consent, which consent shall not be unreasonably
withheld or delayed. Should Tenant wish to request Landlord's consent of a
particular sign, Tenant shall deliver to Landlord reasonably detailed plans and
specifications therefor, together with a request for approval. Prior to
installation of any such sign, Tenant shall obtain all applicable government
approvals, and after installation shall comply with all the laws, orders, rules
and regulations of any governmental authority and/or insurance body, having
jurisdiction over such sign(s). Tenant's indemnification of Landlord and
Landlord's representatives pursuant to Section 4.06 of this lease shall extend
to any injury to, or death of persons, or damage to property resulting from the
erection, maintenance and removal of the signs, and insurance coverage for such
signs or like contrivances shall be included in the comprehensive general
liability policy required to be effectuated by Tenant pursuant to this lease.
Notwithstanding the foregoing, Landlord hereby agrees that Tenant may erect
signs identifying the Tenant, at the locations at the front and sides of the
demised building premises where signs were previously erected as evidenced by
any sign frames still affixed to the demised building premises; provided that
such signs do not exceed the dimensions of the existing sign frames, and Tenant
complies with all other provisions of this Section. Tenant shall be responsible
for and repair any damage to the demised premises occasioned by the installation
of such signs, and shall be responsible for and required to remove such signs at
the expiration or sooner termination of this lease and for any repair of damage
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<PAGE>
caused to the demised premises by such removal
SECTION 20.14. INVALID PROVISIONS SHALL NOT AFFECT TENANT'S CONTINUED
LIABILITY. If any term or provision of this lease or the application thereof to
any person or circumstances shall to any extent be invalid or unenforceable, the
remainder of this lease, or the application of such term or provisions to
persons or circumstances, other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this lease shall be valid and be enforced to the fullest extent permitted by
law.
SECTION 20.15. COVENANT TO EXECUTE INSTRUMENTS. Landlord and Tenant agree
to execute and deliver any instruments in writing necessary to carry out any
provision contained in this lease and will do so promptly whenever the occasion
shall arise and a request for such instrument is made.
SECTION 20.16. BROKERAGE. Landlord and Tenant each represent and warrant
to the other that they have had no conversations or negotiations with any
broker, finder or similar person concerning the consummation of this lease or
the leasing of the demised premises to Tenant other than representatives of
Greiner-Maltz Company, Inc., Sholom & Zuckerbrot Realty Corp. and Edward S.
Gordon (the "Brokers"). Landlord shall indemnify, defend and does hereby hold
Tenant harmless against any claim (including reasonable attorneys' fees incurred
in the defense thereof) for any commission with respect to this lease due
Brokers, except for any agreement made by Tenant to pay any fee or commission to
Sholom & Zuckerbrot Realty Corp or Edward S. Gordon. Landlord and
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Tenant each hereby indemnifies, defends and holds the other harmless from and
against all loss, cost, liability, claim, damage and expense (including, without
limitation, court costs and reasonable attorneys' fees) incurred in connection
with or arising out of any conversations, negotiations or actions had by
Landlord or Tenant, as the case may be, or anyone acting on behalf of Landlord
or Tenant, as the case may be, with any broker, finder or similar person other
than the Brokers in connection with this lease. The provisions of this Section
are not intended to and shall not be deemed an admission of liability by
Landlord or Tenant to the Brokers and shall not afford the Brokers any
third-party beneficiary right.
SECTION 20.17. NO PARTNERSHIP. It is expressly understood that Landlord
and Tenant are not partners or joint venturers, and neither Landlord nor Tenant
has any right, title or interest in the business of the other, and neither
Landlord nor Tenant has any right to represent or bind the other in any respect
whatsoever, and that nothing herein contained shall be deemed, held or construed
as making Landlord or Tenant a partner, joint venturer or associate of the
other, or as rendering Landlord liable for any debts, liabilities, or obligation
incurred by Tenant, it being expressly understood that the relationship between
the parties hereto is, and shall at all times remain, that of Landlord and
Tenant.
SECTION 20.18. DEFINITION OF LANDLORD. The term "Landlord" as used in this
lease means only the owner or the mortgagee in possession for the time being of
the demised premises so that, in the event of any sale or sales of the demised
premises, the
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Landlord shall be and hereby is entirely relieved of all covenants and
obligations of Landlord hereunder (including, without limitation, any covenant
of quiet enjoyment) and it shall be deemed and construed without further
agreement between the parties or their successors in interest, or between the
parties and the purchaser, at any such sale of the demised premises, that the
purchaser has assumed and agreed to fully carry out any and all covenants and
obligations of Landlord hereunder and fully honor all rights of Tenant
hereunder.
SECTION 20.19. STANDARD OF REASONABLENESS. Wherever reference is made in
this lease to the approval, review, consent or satisfaction of Landlord, such
approval, review, consent or satisfaction shall be subject to the standard of
reasonableness and shall not be unreasonably delayed or withheld.
SECTION 20.20. NO PERSONAL LIABILITY OF LANDLORD. Tenant shall look solely
to the estate and property of Landlord in the Property for the satisfaction of
any remedy by Tenant for the collection of any judgment or money from Landlord
in the event of any default or breach by Landlord in any of the terms, covenants
and conditions of this lease, to be observed and/or performed by Landlord, and
no other property or assets of Landlord shall be subject to levy, execution or
other enforcement procedures for the satisfaction of Tenant's remedies.
Landlord shall not have, and no employee, officer, director, agent of
shareholder of Landlord shall have, any personal liability whatsoever under this
lease or arising out of the landlord-tenant relationship of the parties, and
such
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exculpation of personal liability is a material and special inducement for
Landlord to enter into this lease and such relationship.
SECTION 20.21. LEASE NOT BINDING UNLESS FULLY EXECUTED. Submission by
Landlord of the within lease for execution by Tenant shall confer no rights nor
impose any obligation on either party unless and until both Landlord and Tenant
shall have executed this lease and duplicate originals thereof shall have been
delivered to the respective parties.
SECTION 20.22. SURVIVAL OF OBLIGATIONS. In addition to the damages or
deficiency for which Tenant shall remain liable after the termination of this
lease, as provided in Article XIII, there shall survive the stated expiration
date or sooner termination of this lease, those provisions, obligations and
liabilities of and under this lease which by their express terms or reasonable
tenor are intended to so survive, including any liabilities accrued but unpaid
before such stated expiration date or sooner termination of this lease, and the
provisions of this lease for defense and indemnification.
SECTION 20.23. DUE AUTHORIZATION. Tenant and Landlord each represent and
warrant to the other that: (i) the consummation of the transaction hereby
contemplated and the performance of this lease will not result in any breach or
violation of, or constitute a default under any contract to which it is a party;
and (ii) the execution and delivery of this lease has been duly authorized by
the Board of Directors of each party and, upon such execution and delivery, this
lease will be binding and enforceable against such party in accordance with its
terms. Tenant and Landlord shall on or before the execution and
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delivery of this lease provide the other party with a certified resolution of
its Board of Directors approving this lease and authorizing its execution and
delivery by the person signing on its behalf.
SECTION 20.24. WAIVER OF AUTOMATIC STAY. Tenant agrees that in the event
Tenant shall (a) file with any bankruptcy court of competent jurisdiction, or be
the subject of, any petition under Title 11 of the U.S. Code; as amended
(Bankruptcy Code"), (b) be the subject of any order for relief issued under the
Bankruptcy Code, (c) file or be the subject of any petition seeking, or be the
subject of any order, judgment, decree entered by any court of competent
jurisdiction approving a petition filed against it for, any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future federal or state act or law relating to
bankruptcy, insolvency or other relief for debtors, or (d) have sought or
consented to or acquiesced in the appointment of any trustee, receiver,
conservator or liquidator, the Landlord shall thereupon be entitled and Tenant
hereby irrevocably consents to immediate and unconditional relief from any
automatic stay imposed by Section 362 of the Bankruptcy Code, or otherwise, on
or against the exercise of the rights and remedies otherwise available to
Landlord under this lease and as otherwise provided by law, and Tenant hereby
irrevocably waivers any right to object to such relief and will not contest any
motion by Landlord seeking relief from the automatic stay, and Tenant will
cooperate with Landlord in any manner requested by Landlord in its efforts to
obtain relief from any such stay or other prohibition. Tenant further hereby
irrevocably waives any right to seek an extension
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of time within which to assume or reject this lease in any proceeding under the
Bankruptcy Code.
SECTION 20.25. JURISDICTION AND VENUE. Any action or proceeding with
respect to or relating to this lease or the use and occupancy of the demised
premises or any part thereof by Tenant may be brought in the courts of the State
of New York, New York or Queens County, or of the United States of America for
the Southern or Eastern District of New York, and by the execution and delivery
of this lease, the Tenant and Landlord each hereby irrevocably and
unconditionally accepts for itself and in respect of its property, and consents
and submits to the jurisdiction of the aforesaid courts. Tenant and Landlord
hereby irrevocably and unconditionally waive any objection to the laying of
venue or based on the grounds of FORUM NON CONVENIENS, which it may now or
hereafter have to the bringing or maintaining of any such action or proceeding
in the jurisdiction of the aforesaid courts.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed and delivered, on the day and year first above written.
ATTEST: CAPITOL DISTRIBUTORS CORP.
___________________________ By:_____________________________________
Lawrence Michaels,
Vice President
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ATTEST: PETROLEUM HEAT AND POWER CO., INC.
___________________________ By:_____________________________________
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<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of February, 1997, before me personally came LAWRENCE
MICHAELS, to me known, who, being by me duly sworn, did depose and say that he
resides at 150 East 77th Street, New York, New York; that he is the Vice
President of CAPITOL DISTRIBUTORS CORP., the corporation described in, and which
executed, the foregoing instrument by order of the board of directors of said
corporation and that he signed his name thereto in the name of and on behalf of
said corporation by like order.
_______________________________
Notary Public
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of February, 1997, before me personally came
__________________________ to me known, who, being by me duly sworn, did depose
and say that he resides at__________________________________; that he is the
______________ of PETROLEUM HEAT AND POWER CO., INC., the corporation described
in, and which executed, the foregoing instrument by order of the board of
directors of said corporation and that he signed his name thereto in the name of
and on behalf of said corporation by like order.
_______________________________
Notary Public
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information (in thousands except per
share data) extracted from Petroleum Heat and Power Co., Inc. and Subsidiaries
financial statements as of September 30, 1997 and is qualified in its entirety
by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 13,806
<SECURITIES> 0
<RECEIVABLES> 53,969
<ALLOWANCES> 1,988
<INVENTORY> 13,008
<CURRENT-ASSETS> 86,622
<PP&E> 77,712
<DEPRECIATION> 45,715
<TOTAL-ASSETS> 223,918
<CURRENT-LIABILITIES> 81,208
<BONDS> 288,774
34,167
0
<COMMON> 2,601
<OTHER-SE> (191,962)
<TOTAL-LIABILITY-AND-EQUITY> 223,918
<SALES> 358,634
<TOTAL-REVENUES> 386,855
<CGS> 217,028
<TOTAL-COSTS> 271,269
<OTHER-EXPENSES> 122,663
<LOSS-PROVISION> 1,435
<INTEREST-EXPENSE> 25,581
<INCOME-PRETAX> (32,224)
<INCOME-TAX> 350
<INCOME-CONTINUING> (32,574)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (34,382)
<EPS-PRIMARY> (1.47)
<EPS-DILUTED> (1.47)
</TABLE>
