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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934.
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
COMMISSION FILE NUMBER 1-7367
PAINE WEBBER GROUP INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-2760086
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1285 AVENUE OF THE AMERICAS, NEW YORK, NEW YORK 10019
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (212) 713-2000
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
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<CAPTION>
NAME OF EACH EXCHANGE ON
TITLE OF EACH CLASS WHICH REGISTERED
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<S> <C>
Common Stock, $1 Par Value New York Stock Exchange, Inc.
Pacific Stock Exchange, Inc.
Stock Index Return Securities on the S&P
MidCap 400 Index due June 2, 2000 American Stock Exchange, Inc.
8.30% Preferred Trust Securities* New York Stock Exchange, Inc.
8.08% Preferred Trust Securities* New York Stock Exchange, Inc.
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*Issued by PWG Capital Trust I and PWG Capital Trust II, respectively. Fully and
unconditionally guaranteed by Paine Webber Group Inc.
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: NONE
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of the Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. (X)
The aggregate market value of voting stock held by non-affiliates of the
Registrant was approximately $5.6 billion as of March 9, 2000. (See Item 12.)
On March 9, 2000, the Registrant had outstanding 145,479,208 shares of common
stock of $1 par value, which is Registrant's only class of common stock.
DOCUMENTS INCORPORATED BY REFERENCE:
Parts I, II and IV incorporate information by reference from the Registrant's
1999 Annual Report to Stockholders. Part I and Part III incorporate information
by reference from the Registrant's definitive proxy statement for the annual
meeting to be held on May 4, 2000.
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PART I
ITEM 1. BUSINESS
Paine Webber Group Inc. ("PWG") is a holding Company which, together with its
operating subsidiaries (collectively, the "Company"), forms one of the largest
full-service securities and commodities firms in the United States*. Founded in
1879, the Company employs approximately 19,620 people in 315 offices worldwide.
In addition to the detailed information set forth below, incorporated herein by
reference is the general business description information on the Company, under
the caption "Management's Discussion and Analysis" on page 25 in the 1999 Annual
Report to Stockholders.
The Company offers a wide variety of products and services, consisting of those
of a full service broker-dealer to primarily a domestic market, through its two
operating segments: Individual and Institutional. The Individual segment offers
brokerage services and products, asset management and other investment advisory
and portfolio management products and services, and execution and clearing
services for transactions originated by individual investors. The Institutional
segment principally includes capital markets products and services such as
securities dealer activities and investment banking. Certain business activities
described below may comprise both the Individual and Institutional segments.
Financial information for the years ended December 31, 1999, 1998 and 1997,
including the amount of total revenue contributed by class of similar products
or services contributing 10% or more of consolidated revenue, and information on
segment and geographic data, is set forth in the Consolidated Financial
Statements and the Notes thereto, and the "Five Year Financial Summary," on
pages 55, 58 and 59 in the 1999 Annual Report to Stockholders incorporated
herein by reference.
BROKERAGE SERVICES AND PRODUCTS
A portion of the Company's revenues are generated from commissions or fees
earned as a broker, principally on behalf of individual clients, in the purchase
and sale of equity securities (listed and over-the-counter securities), mutual
funds, insurance products, options, fixed income instruments, commodities and
financial futures. The Company also earns commissions or fees for services
provided in the areas of employee benefits, managed accounts, online trading,
personal trusts, and employee stock benefit services.
Securities transactions The Company holds memberships in the major securities
exchanges in the United States in order to provide services to its brokerage
clients in the purchase and sale of listed securities. The largest portion of
the Company's commission revenue (57%) is derived from brokerage transactions
for clients in listed securities and options. The Company has established
commission rates for brokerage transactions which vary with the size and
complexity of the transaction and with the activity level of the client's
account. The Company may also act as broker for investors in the purchase and
sale of over-the-counter securities and fixed income instruments including U.S.
government and municipal securities.
In 1999, the Company introduced PaineWebber InsightOne(sm), a non-discretionary
brokerage account offering the services of a financial advisor, the resources of
a full-service brokerage firm, 24-hour account access and virtually unlimited
online order entry, for an annual asset-based fee. PaineWebber InsightOne is not
an investment advisory program.
Mutual funds The Company distributes shares of mutual funds for which it
serves as investment advisor and sponsor as well as shares of funds sponsored by
others. Income from the sale of mutual funds is derived from commissions and
standard dealers' discounts, which are determined by the terms of the selling
agreement and the size of the transaction. Income from proprietary mutual funds
is also derived from management and distribution fees (see "Asset Management"
section). Mutual funds include both taxable and tax-exempt funds and front-load,
reverse-load, and level-load funds.
* Certain items herein, including (without limitation) certain matters discussed
under "Legal Proceedings" in Part I, Item 3 of this report, "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
("MD&A") incorporated by reference in Part II, Item 7 of this report, and
"Quantitative and Qualitative Disclosures about Market Risk" incorporated by
reference in Part II, Item 7a of this report are forward-looking statements. The
matters referred to in such forward-looking statements could be affected by many
factors, including (without limitation) economic and market conditions, the
level and volatility of interest rates, currency and security valuations,
competitive conditions, counterparty risk, transactional volume, market
liquidity, technological changes, the impact of current, pending and future
legislation and regulation and other risks and uncertainties detailed in the
MD&A. The Company disclaims any obligation or undertaking to update publicly or
revise any forward-looking statements.
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Insurance Through subsidiaries, PaineWebber Incorporated ("PWI") acts as
agent for several life insurance companies and sells deferred annuities and life
insurance. Additionally, variable annuities are issued by PaineWebber Life
Insurance Company ("PW Life") which are sold by PWI as agent. PW Life also
assumes reinsurance of variable annuities issued by other insurance companies.
Managed accounts The Company acts in a consulting capacity to both
individuals and institutions in the selection of professional money managers.
Services provided in this consulting capacity may include client profiling,
asset allocation, manager selection, performance measurement and financial
planning. Money managers recommended may be either affiliated with the Company
or nonaffiliated managers. Compensation for services is in the form of
commissions or established fees. The Company also provides discretionary
portfolio management services to individuals and institutions through the
efforts of registered representatives trained to offer such services.
Options The Company's options related services include the purchase and sale
of equity, index, and currency options on behalf of clients, and the delivery
and receipt of the underlying instruments upon exercise of the options. In
addition, the Company utilizes its securities research capabilities in the
formulation of options strategies and recommendations for its clients.
Commodities and financial futures The Company provides transaction services
for clients in the purchase and sale of futures contracts, including metals,
currencies, interest rates, stock indexes, agricultural products, in addition to
managed futures and commodity funds. Transactions in futures contracts are on
margin and are subject to individual exchange regulations. The risk to the
Company's clients in futures transactions, and the resulting credit risk to the
Company, is greater than the risk in cash securities transactions, principally
due to the low initial margin requirements relative to the nominal value of the
actual futures contract. Additionally, commodities exchange regulations
governing daily price movements can have the effect of precluding clients from
taking actions to mitigate adverse market conditions. These factors may increase
the Company's risk of loss on collections of amounts due from clients. However,
net worth requirements and other credit standards for customer accounts are
utilized to limit this exposure.
Employee benefit plans PW Trust Company, a wholly owned subsidiary of PWG,
provides trust and investment management services to qualified retirement plans.
PW Trust Company acts as trustee, custodian and investment manager of the plans'
assets and presently services approximately 950 clients.
Personal trust services The Company offers its clients a full range of
domestic and international personal trust services, including self trustee and
corporate trustee options. Investment options include managed accounts, mutual
funds and annuities. The Company serves its international clients through trust
companies located in Guernsey, Channel Islands and the Cayman Islands and serves
its domestic clients through third party trustees.
Unit Investment Trusts The Company is sole sponsor for various Unit
Investment Trusts ("UITs"), co-sponsors UITs with other firms and distributes
UITs sponsored by other dealers. Income is derived from the sales charges paid
by investors who purchase units. UITs are fixed portfolios of municipal,
corporate and government bonds, or equity securities.
Corporate Stock Benefit Services The Company provides stock option and
employee stock purchase services to corporate clients. Services provided include
plan administration, option exercise and employee stock purchase services and
employee education. Plan participants may view plan data online and through an
interactive voice response system. Participants may also conduct exercise and
sale transactions through these automated applications. Compensation for
services is in the form of administration fees and commissions on the sale of
securities.
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DEALER ACTIVITIES
The Company regularly makes a market in over-the-counter ("OTC") securities and
as a block positioner, acts as market-maker in certain listed securities, U.S.
and foreign government and agency securities, investment-grade and high-yield
corporate debt, emerging market securities, and mortgage and asset-backed
securities.
Equity The Company effects transactions in large blocks of securities,
usually with institutional investors, generally involving 10,000 or more shares
of listed stocks. Such transactions are handled on an agency basis to the extent
possible, but the Company may take a long or short position as principal to the
extent that no buyer or seller is immediately available. By engaging in block
positioning, the Company places a portion of its capital at risk to facilitate
transactions for clients. Despite the risks involved in block positioning, the
aggregate brokerage commissions generated by the Company's willingness to commit
a portion of its capital in repositioning, including commissions on other orders
from the same clients, justifies such activities.
The Company makes markets, buying and selling as principal, in common stocks,
warrants and other securities traded on the NASDAQ National Market or in other
OTC markets. The unlisted equity securities in which the Company makes markets
are principally those in which there is substantial continuing client interest
and include securities which the Company has underwritten.
Fixed Income The Company provides clients access to a variety of fixed income
products including: U.S. government and agency securities; mortgage-backed
related securities including those issued through Government National Mortgage
Association ("GNMA"), Federal National Mortgage Association ("FNMA") and Federal
Home Loan Mortgage Corp. ("FHLMC"); asset-backed securities; emerging market
securities; corporate investment-grade and high-yield securities; collateralized
bond obligations ("CBOs") and collateralized loan obligations ("CLOs"); and
options and futures contracts on certain of these products. To the extent
significant price fluctuations occur, the Company's capital can be at risk. This
risk is mitigated by hedging inventory positions.
As a "primary dealer" in U.S. government securities, the Company actively
participates in the distribution of United States Treasury securities and
reports its inventory positions and market transactions to the Federal Reserve
Bank on a weekly basis. The Company takes positions in government and government
agency securities to facilitate transactions for its clients on a principal
basis, or for its own account. Profits or losses are recognized from purchases
and sales, and fluctuations in the value of securities in which it maintains
positions. Additionally, trading activities include the purchase of securities
under agreements to resell at future dates (reverse repurchase agreements) and
the sale of the same or similar securities under agreements to repurchase at
future dates (repurchase agreements). Profits and losses on the repurchase
transactions result from the interest rate differentials.
The Company actively participates in the mortgage-backed securities markets
through the purchase or sale of GNMA, FNMA, FHLMC, mortgage pass-through
securities, collateralized mortgage obligations ("CMOs"), CBOs, CLOs, and other
mortgage related and asset-backed securities, in order to meet client needs on a
principal basis. As a means of financing its trading, the Company enters into
repurchase agreements. The Company also structures and underwrites CMOs, CBOs
and CLOs. Additionally, the Company serves as principal and financier in the
origination, purchase, sale, securitization and resale of mortgage notes and
other real estate related products.
The Company is an active participant in the corporate bond markets. Through the
fixed income debt syndicate desk and institutional sales force, the Company
distributes and markets new issuances of corporate debt securities. The
corporate bond trading desk supports this effort as a dealer in the secondary
markets by effecting transactions on behalf of clients or for the Company's own
account. Revenues generated from these activities include underwriting fees on
syndicate transactions and principal transaction gains or losses.
The Company underwrites, makes markets in, and facilitates trades for clients in
the high-yield securities markets. High-yield securities refer to companies
whose debt is rated as non-investment grade. The Company continually monitors
its risk positions associated with high-yield debt and establishes limits with
respect to overall market exposure and individual issuer.
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The Company may also take positions in emerging market securities to facilitate
transactions for its clients on a principal basis. Emerging market securities
include Latin American, Eastern European and Asian instruments denominated in
U.S. dollars and local currency units. The Company continually monitors its risk
positions associated with emerging market securities and establishes limits with
respect to overall market exposure, region and individual issuer.
Municipal securities Through its municipal bond department, the Company is a
dealer in both the primary and secondary markets, buying and selling securities
for its own account and for clients. The municipal bond department also acts as
agent on a variable rate debt program from which it earns recurring fee revenue.
Derivatives The Company is engaged in activities, primarily on behalf of
clients, in equity derivative products, including listed and OTC options,
warrants, futures and underlying equity securities. The Company also engages in
market-making activities, on behalf of its municipal clients, in interest rate
derivative products including interest rate swaps, swaptions, caps, floors and
rate lock agreements. The Company may also create structured products, which are
sold to retail and institutional clients, that are based on baskets of
securities and currencies, primary foreign and domestic market indexes and other
equity and debt-based products. The Company generally hedges positions taken in
these structured products based on option and other valuation models. The
Company engages in interest rate, stock index, commodity options and futures
contract transactions in connection with the Company's principal trading
activities and through its mortgage and foreign currency businesses, enters into
forward purchase and sale agreements, and option contracts.
Derivative financial instruments are subject to varying degrees of market and
credit risk, although in many cases derivatives serve to reduce, rather than
increase the Company's exposure to losses from these risks. The Company has
developed a control environment, encompassing both its derivative-based and
other businesses, that involves the interaction of a number of risk management
and control groups. See "Management's Discussion and Analysis - Risk Management"
beginning on page 31 in the 1999 Annual Report to Stockholders for a discussion
of these groups and their functions. See also "Notes to Consolidated Financial
Statements - Note 1: Summary of Significant Accounting Policies, Note 4:
Long-Term Borrowings, Note 8: Financial Instruments with Off-Balance-Sheet Risk
and Note 9: Risk Management", beginning on page 39, page 42, page 45 and page
47, respectively, in the 1999 Annual Report to Stockholders.
INVESTMENT BANKING
The Company manages and underwrites public offerings of debt and equity
securities, arranges private placements and provides financial advice in
connection with mergers and acquisitions, restructurings and reorganizations for
domestic and international companies.
The Company manages public offerings of corporate debt and equity securities or
participates as an underwriter in syndicates of public offerings managed by
others. Management of an underwriting account is generally more profitable than
participation as a syndicate member since the managing underwriters receive a
management fee, and as the lead-manager has more control over the allocation of
securities available for distribution. The Company is invited to participate in
many syndicates of negotiated public offerings managed by others.
The Company is an industry leader in the management of tax-exempt bond
offerings. Through its Municipal Securities Group, the Company provides
financial advice to, and raises capital for, issuers of municipal securities to
finance the construction and maintenance of a broad range of public-related
facilities, including healthcare, housing, education, public power, water and
sewer, airports, highways and other public finance infrastructure needs. The
group also provides a secondary market for these securities. Revenues derived
from these activities include underwriting fees, selling concessions, advisory
fees and consulting fees.
Through its Commercial Real Estate group, the Company provides a full range of
capital markets services to its real estate clients, including underwriting of
debt and equity securities, principal lending, debt restructuring, property
sales and bulk sales services, as well as a broad range of other advisory
services.
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Significant risks are involved in the underwriting of securities. Underwriting
syndicates agree to purchase securities at a discount from the public offering
price. If the securities are ultimately sold below the cost to the syndicate, an
underwriter will experience losses on the securities which it has purchased. In
addition, losses may be incurred on stabilization activities taken during such
underwriting.
The Company, through certain subsidiaries, may participate from time to time as
an equity investor in partnerships and other entities that invest in fixed
income securities, equity securities and other financial instruments, or may
provide financing commitments or other extensions of credit associated with
merchant banking and other principal investments.
ASSET MANAGEMENT
The Asset Management group is comprised of Mitchell Hutchins Asset Management
Inc. ("MHAM"), including Mitchell Hutchins Investment Advisory division,
Mitchell Hutchins Institutional Investors Inc., NewCrest Advisors Inc. and DSI
International Management, Inc., an asset management firm specializing in
enhanced index portfolio management, which was acquired in December 1999. The
Asset Management group provides investment advisory and portfolio management
services to mutual funds, institutions, pension funds, endowment funds,
individuals and trusts. Mutual funds, for which MHAM serves as an investment
advisor and administrator, include both taxable and tax-exempt funds and
front-load, reverse-load, and level-load funds. At December 31, 1999, total
assets under management were $68.8 billion.
In April 1999, the Yasuda PaineWebber Mutual Fund Company, Ltd. ("YPW"), a
joint venture between the Company and The Yasuda Mutual Life Insurance Company
("Yasuda"), commenced operations. The joint venture was established to develop,
sponsor, manage and distribute mutual funds in Japan. At the end of 1999, YPW
managed approximately $1 billion in assets. The Company provides its expertise
in structuring and administrating certain funds as well as its experience in
the distribution of funds, while Yasuda and YPW distribute the products.
EXECUTION AND CLEARING SERVICES
Margin Lending In a margin transaction, the Company extends credit to a
client for the purchase of securities, using the securities purchased and/or
other securities in the client's account as collateral for amounts loaned. The
Company receives income from interest charged on such extensions of credit.
Amounts loaned are limited by margin requirements which are subject to the
Company's credit review and daily monitoring procedures and are generally more
restrictive than the margin regulations of the Federal Reserve Board and other
regulatory authorities. The Company may lend, to other brokers or use as
collateral, a portion of the margin securities to the extent permitted by
applicable margin regulations. The Company also extends credit to clients for
purposes other than to purchase or carry securities under the same criteria
described above.
The extension of margin credit is an important source of revenue to the Company
since the interest rate paid by the client on funds loaned by the Company
exceeds the Company's cost of funds. The amount of the Company's gross interest
revenues is affected not only by prevailing interest rates, but also by the
volume of business conducted on a margin basis. To finance margin loans to
clients, the Company utilizes both interest-bearing and non-interest-bearing
funds generated from a variety of sources in the course of its operations,
including bank loans, free credit balances in client accounts, secured credits
which result from client short sales, sales of securities under agreements to
repurchase and the lending of securities. No interest is paid on clients' free
credit balances.
By permitting a client to purchase on margin, the Company takes the risk that
market declines could reduce the value of the collateral below the principal
amount loaned, plus accrued interest, before the collateral could be sold.
Securities Lending and Prime Brokerage In connection with both its trading
and brokerage transactions, the Company borrows and lends securities to and from
brokers and dealers, banks, and other counterparties, principally to cover short
sales and to complete transactions where the customer has not delivered
securities by the settlement date. The borrower of securities is generally
required to deposit cash or another form of
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qualifying collateral with the lender. The borrower pays a fee to the lender or
receives only a portion of the interest earned on the cash deposit, pursuant to
an agreement between the parties specifying the terms of the transaction. The
Company also provides prime brokerage services to its clients. Prime brokerage
is a relationship in which a professional money manager engages a single firm to
consolidate operational, custodial and reporting functions while executing
trades with multiple firms.
Other Activities Correspondent Services Corporation ("CSC"), a registered
broker-dealer, provides execution and clearing services through PWI to
correspondent broker-dealers to support transactions for their individual
customers. CSC provides execution and clearing services to approximately 130
broker-dealers on a fully disclosed and omnibus basis. CSC also provides margin
loans to the clients of its correspondent brokers.
INTERNATIONAL
Portions of the Company's core business activities are conducted through
PaineWebber International Inc. and its subsidiaries (collectively, the "foreign
subsidiaries") certain of which also function as introducing broker-dealers to
PWI for U.S. market products and are members of certain international exchanges.
The foreign subsidiaries are active in the sales, trading and underwriting of
U.S. dollar denominated and non-U.S. dollar denominated Eurobonds. In addition,
certain of the foreign subsidiaries provide prime brokerage services to their
clients and are active in the securities lending business.
RESEARCH
Research provides investment advice and strategies to institutional and
individual clients, and other business areas of the Company. The Equity Research
analysts, strategists, and economists cover approximately 800 companies in 52
industries and also generate broader investment and economic analyses. The
Company's Fixed Income and Municipal Securities groups also maintain dedicated
research teams that cover their respective businesses.
COMPETITION
All aspects of the business of the Company are highly competitive. The Company
competes directly with numerous other brokers and dealers, investment banking
firms, insurance companies, investment companies, banks, commercial banks and
other financial institutions.
In recent years, competitive pressures have increased from discount brokerage
firms, online internet trading, and commercial banks that were not traditionally
engaged in the securities business. The financial services industry also has
intensifying competition resulting from consolidation through mergers and
acquisitions. In November 1999, the Gramm-Leach-Bliley Act was passed which
repeals restrictions on affiliations among banks, securities firms and insurance
companies, which may further increase competition. The Company believes that the
principal factors affecting competition in the securities industry are available
capital, and the quality and prices of services and products offered.
REGULATION
The securities and commodities industry is extensively regulated. The Securities
and Exchange Commission ("SEC") is responsible for carrying out the federal
securities laws and serves as a supervisory body over all national securities
exchanges and associations, while the Commodity Futures Trading Commission
("CFTC") provides this function over all national commodities and futures
exchanges and associations. The regulation of broker-dealers has to a large
extent been delegated, by the federal securities laws, to self-regulatory
organizations ("SROs"). These SROs include all the national securities and
commodities exchanges, the National Association of Securities Dealers and the
Municipal Securities Rulemaking Board. Subject to approval by the SEC and the
CFTC, these SROs adopt rules that govern the industry and conduct periodic
examinations of the operations of certain subsidiaries of the Company. The New
York Stock Exchange ("NYSE") has been designated by the SEC as the primary
regulator of certain of the Company's subsidiaries, including PWI. In addition,
certain of these subsidiaries are subject to regulation of the laws of the 50
states, the District of Columbia and Puerto Rico or exchanges in which they are
registered to conduct securities,
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banking, insurance or commodities business. Certain of the Company's
subsidiaries operating in foreign countries are subject to foreign regulators
such as the Securities and Futures Authority in the United Kingdom.
Broker-dealers are subject to regulations which cover all aspects of the
securities business, including sales methods, trade practices among
broker-dealers, use and safekeeping of customers' funds and securities, capital
structure of securities firms, recordkeeping, and the conduct of directors,
officers and employees. Violation of applicable regulations can result in the
revocation of broker-dealer licenses, the imposition of censures or fines, and
the suspension or expulsion of a firm.
As a registered broker-dealer and member firm of the NYSE, PWI is subject to the
Net Capital Rule (Rule 15c3-1 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), which also has been adopted through incorporation
by reference in NYSE Rule 325. The Net Capital Rule, which specifies minimum net
capital requirements for registered broker-dealers, is designed to measure the
financial soundness and liquidity of broker-dealers. The Net Capital Rule, as
defined, prohibits registered broker-dealers from making substantial
distributions of capital by means of dividends or similar payments, or unsecured
advances and loans to certain related persons, including stockholders, without
giving at least two business days prior or post notification to the SEC.
Pre-notification requirement applies to any proposed withdrawal of capital if
the aggregate of such withdrawals, on a net basis, within any 30 calendar day
period would exceed 30% of the broker-dealer's excess net capital, as defined.
Post-notification requirement applies if the aggregate of such withdrawals, on a
net basis, would exceed 20% of the broker-dealer's excess net capital, as
defined. The rule permits the SEC, by order to restrict, for up to 20 business
days, withdrawing of equity capital or making unsecured advances or loans to
related persons under certain limited circumstances. Finally, broker-dealers are
prohibited from making any withdrawal of capital that would cause the
broker-dealer's net capital to be less than 25% of the deductions from net worth
required by the Net Capital Rule as to readily marketable securities.
Pursuant to SEC and CFTC regulations, registered broker-dealers and futures
commission merchants ("FCMs") must maintain, preserve and report on a quarterly
and annual basis, certain information concerning the organizational structure,
risk management policies and financial condition of any affiliate of the Company
whose activities are reasonably likely to have a material impact on the
financial and operational condition of the Company.
ITEM 2. PROPERTIES
The principal executive offices of the Company are located at 1285 Avenue of the
Americas, New York, New York under leases expiring through December 31, 2015.
The Company is currently leasing approximately 669,000 square feet at 1285
Avenue of the Americas principally comprising the offices of its investment
banking, asset management, capital markets, and corporate headquarters staff, as
well as four branch offices for retail financial advisors.
The Company leases approximately 968,000 square feet of space at Lincoln Harbor
in Weehawken, New Jersey under leases expiring through December 31, 2013. The
Lincoln Harbor facility principally comprises the offices of the Private Client
Group headquarters, systems, operations, administrative services, and finance
divisions.
During 1999, the Company entered into an agreement to lease 267,000 square feet
at the Newport Center in Jersey City, New Jersey. The Company expects to begin
occupying the space during the second quarter of 2000. The Newport Center
facility will principally comprise the offices of the operations and information
services divisions.
At December 31, 1999, the Company maintained 315 offices worldwide under leases
expiring between 2000 and 2015. In addition, the Company leases various
furniture and equipment. The information regarding the Company's lease
commitments is set forth in Note 10 in the Notes to Consolidated Financial
Statements on page 48 in the 1999 Annual Report to Stockholders.
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ITEM 3. LEGAL PROCEEDINGS
The Company is involved in a number of proceedings concerning matters arising in
connection with the conduct of its business. The Company has denied, or believes
it has legitimate defenses and will deny, liability in all significant cases
pending against it, including those described below, and intends to actively
defend each such case.
NEWTON V. MERRILL LYNCH, ET AL. SECURITIES LITIGATION
PaineWebber and two other broker-dealers were named as defendants in litigation
brought in November 1994 and subsequently styled In Re Merrill Lynch, et al.,
Securities Litigation, Civ. No. 94-5343 (DRD). The amended class action
complaint, filed in March 1995, purportedly on behalf of a class of persons who
placed market orders with defendants for the purchase or sale of NASDAQ
securities between November 1992 and 1994, alleges that defendants violated the
federal securities laws in connection with the execution of those orders by,
among other things, failing to provide execution of such orders at prices better
than the national best bid or offer available on the NASDAQ market. On December
13, 1995, the District Court granted defendants' motion for summary judgment. On
January 31, 1998, the United States Court of Appeals for the Third Circuit (en
banc) reversed the District Court's grant of summary judgment and remanded the
case to the District Court for further proceedings. On April 30, 1998,
defendants filed a petition for a writ of certiorari with the United States
Supreme Court. On October 5, 1998, the petition was denied. On July 21, 1998,
the Magistrate Judge granted plaintiffs' motion to amend the complaint to add
additional plaintiffs and extend the period covered by the complaint through
August 28, 1996, and the District Court affirmed that ruling on May 20, 1999. On
November 8, 1999, the District Court denied plaintiffs' motion for class
certification. Plaintiffs have petitioned the Third Circuit for permission to
file an immediate appeal, which petition remains pending.
ASKIN LITIGATION*
Kidder, Peabody & Co. Incorporated ("Kidder, Peabody"), a subsidiary of the
Company, together with other unrelated individuals and firms, has been named as
a defendant in certain actions pending in the United States District Court for
the Southern District of New York brought on behalf of individuals and two
purported classes of investors in the three funds (the "Funds") managed by Askin
Capital Management, L.P. and David J. Askin (collectively, the "Askin Parties").
The actions are Primavera Familienstiftung v. David J. Askin, et al., Docket No.
95 Civ. 8905; ABF Capital Management, et al. v. Askin Capital Management, L.P.,
Docket No. 96 Civ. 2978; Montpellier Resources, Limited et al. v. Askin Capital
Management, L.P., et al., Docket No. 97 Civ. 1856; Richard Johnston as Trustee
for the Demeter Trust, et al. v. Askin Capital Management, L.P., et al., Docket
No. 97 Civ. 4335; Bambou, Inc., et al. v. David J. Askin et al., Docket No. 98
Civ. 6178; and AIG Managed Market Neutral Fund et al. v. Askin Capital
Management L.P., et al., Docket No. 98 Civ. 7494. The plaintiffs have alleged,
among other things, that Kidder, Peabody and other brokerage firms aided and
abetted false and misleading representations made to investors in violation of
federal and state securities laws, used the Funds as an outlet for otherwise
unmarketable tranches of collateralized mortgage obligations, and violated
various rules of the New York Stock Exchange and National Association of
Securities Dealers. As a result of various decisions by the District Court, the
only claim remaining in these cases against Kidder, Peabody is for aiding and
abetting the Askin Parties' alleged fraud on the investors. In addition, on
March 19, 1998, the District Court denied plaintiffs' motion for class
certification in the Primavera and Montpellier Resources actions. The parties
are presently engaged in pre-trial discovery. Trial has been tentatively
scheduled to occur in September 2000. Collectively in the six lawsuits, the
plaintiffs now claim damages of approximately $320 million, as well as
unspecified punitive damages.
- ----------------------------
* This item relates to a matter involving Kidder, Peabody & Co. Incorporated
which was acquired by the Company in August 1997. In connection with the
acquisition, the seller and its parent General Electric Company agreed to
indemnify the Company for all losses relating to this matter.
8
<PAGE> 10
In a separate, but related action now pending in the United States Bankruptcy
Court for the Southern District of New York captioned ABF Capital Management, et
al. v. Kidder, Peabody & Co. Incorporated, a group of investors in the Funds
have sought to equitably subordinate, pursuant to Section 510(c) of the
Bankruptcy Code, certain recoveries received by Kidder, Peabody, amounting to
approximately $15.5 million, in connection with the settlement of Kidder,
Peabody's claims in the Funds' bankruptcy proceedings. The Bankruptcy Court has
determined that the relief sought in this action is simply an alternative
equitable remedy to the relief sought in the related District Court actions and
has, in effect, stayed the case pending resolution of the District Court cases.
KEENE LITIGATION*
Kidder, Peabody is a defendant, along with other unrelated individuals and
entities, in Richard A. Lippe, et al., v. Bairnco Corp. et al., 96 Civ. 7600, in
the United States District Court for the Southern District of New York brought
by the Trustees of the Keene Creditors' Trust ("KCT"). This action originally
was filed on June 8, 1995 as Adversary Proceeding No. 95/9393A in the Bankruptcy
Court for the Southern District of New York. On April 10, 1997, the District
Court ordered the withdrawal of the bankruptcy court. KCT was established
pursuant to the Plan of Reorganization approved in connection with the
bankruptcy proceedings related to Keene Corporation ("Keene"). The KCT claims
against Kidder, Peabody arise from fairness opinions rendered by Kidder, Peabody
during the 1980s in connection with the sale of various businesses by Keene. KCT
alleges that Kidder, Peabody's fairness opinions intentionally or recklessly
undervalued the assets being sold. KCT further alleges that such acts
constituted aiding and abetting breaches of fiduciary duties and self-dealing by
Keene's corporate officers and directors, who are also defendants, in violation
of the New York Business Corporation Law and the Racketeer Influenced and
Corrupt Organizations Act. KCT seeks damages from Kidder, Peabody and other
unrelated individuals and firms in excess of $700 million. On September 15,
1997, Kidder, Peabody filed a motion to dismiss the complaint. On February 6,
1998, the District Court granted Kidder, Peabody's motion to dismiss the
complaint as to Kidder, Peabody. The dismissal order is not appealable by the
plaintiff at this time.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
Executive Officers of the Registrant
Incorporated herein by reference is the Company's definitive proxy statement for
the annual meeting of stockholders to be held on May 4, 2000 ("Proxy Statement")
to be filed with the SEC not later than 120 days after the end of the fiscal
year.
Set forth below, in addition to information contained in the Proxy Statement, is
certain information concerning the executive officers of PWG who do not also
serve as directors of PWG:
Margo Alexander, 53, is Chairman of the Board and Chief Executive Officer of
Mitchell Hutchins Asset Management Inc., a wholly-owned subsidiary of PWI. She
has been Chairman of the Board since March 8, 1999 and Chief Executive Officer
since January 1995. She was President of Mitchell Hutchins Asset Management Inc.
from January 1995 to February 1999. From 1981 to 1995, Ms. Alexander held
various positions in the Company including Director of Research, Co-Director of
Institutional Equity, and Director of Institutional Equity. In April 1973, she
joined Mitchell Hutchins & Co., a predecessor firm of the Company, as a security
analyst.
Steven P. Baum, 47, is Executive Vice President and Director of Capital Markets
of PWI, a position he has held since October 1997. From November 1995 to October
1997, he was Director of the Global Fixed Income and Commercial Real Estate
groups. Upon joining the Company in February 1995, he served as
- ----------------------------
* This item relates to a matter involving Kidder, Peabody & Co. Incorporated
which was acquired by the Company in August 1997. In connection with the
acquisition, the seller and its parent General Electric Company agreed to
indemnify the Company for all losses relating to this matter.
9
<PAGE> 11
Director of the Commercial Real Estate group and co-director of the Global Fixed
Income group until October 1995. Prior to joining the Company, Mr. Baum was with
Kidder, Peabody & Co. from 1985 to 1994 where he served in various capacities in
the Fixed Income group including co-head of the Fixed Income Department from
July 1994 to January 1995 and head of the Commercial Real Estate group from 1990
to July 1994.
Jerome T. Fadden, 43, is Senior Vice President and Chief Financial Officer of
PWG, and is Executive Vice President and Chief Financial Officer of PWI,
positions he has held since joining the Company in November 1999. Prior to
joining the Company, Mr. Fadden was Executive Vice President and Chief Financial
Officer of Equus Re from October 1998 to August 1999. He was Executive Vice
President and Chief Financial Officer and Treasurer at NAC Re Corporation from
June 1996 to September 1998. Mr. Fadden was with Travelers Group from 1990 to
1996 where he served as Vice President and Treasurer.
Theodore A. Levine, 55, is General Counsel and Secretary of PWG, and is an
Executive Vice President of PWI, positions he has held since June 1993. Mr.
Levine is also a Senior Vice President of PWG, a position he has held since
October 1997. He was Vice President of PWG from June 1993 to September 1997.
Prior to joining the Company, Mr. Levine was a partner at the Washington D.C.-
based law firm of Wilmer, Cutler and Pickering from February 1984 to June 1993.
He was with the Securities and Exchange Commission from 1969 to 1984 where he
rose to the position of Associate Director in the Division of Enforcement.
Robert H. Silver, 44, is Executive Vice President and Director of Operations,
Service and Systems of PWI, a position he has held since July 1995. From 1988 to
1995, Mr. Silver held various positions in the Company including Director of
Retail Products and Marketing, Director of Retail Branch offices, and Director
of Finance and Controls. Prior to joining the Company, Mr. Silver was with
Merrill Lynch & Co., Inc. from 1983 to 1988 and KPMG Peat Marwick from 1977 to
1983.
Mark B. Sutton, 45, is Executive Vice President and President of the Private
Client Group of PWI. He has been an Executive Vice President of PWI since
January 1995 and President of the Private Client Group since April 1998. From
January 1995 to March 1998, he served as Director of the Private Client Group of
PWI. Prior to rejoining the Company in January 1995, Mr. Sutton was with Kidder,
Peabody & Co. from July 1992 to December 1994. He served as Managing Director
and Chief Operating Officer of its brokerage unit until July of 1994 when he
became the Chief Executive Officer of Kidder, Peabody's Investment Services
Division. Mr. Sutton's original tenure with PaineWebber was from 1978 to 1992
where he served in various capacities including Director of Transaction Services
and Managing Director of MHAM.
Executive Officers are elected annually to serve until their successors are
elected and qualify or until they sooner die, retire, resign or are removed.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
The information set forth under the captions "Market for Common Stock" and
"Common Stock Dividend History" on page 57 in the 1999 Annual Report to
Stockholders is incorporated herein by reference.
ITEM 6. SELECTED FINANCIAL DATA
The information set forth under the caption "Financial Highlights" on page 18 in
the 1999 Annual Report to Stockholders is incorporated herein by reference.
10
<PAGE> 12
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The information set forth under the caption "Management's Discussion and
Analysis" beginning on page 25 in the 1999 Annual Report to Stockholders is
incorporated herein by reference.
ITEM 7a. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The information set forth under the caption "Management's Discussion and
Analysis - Risk Management" beginning on page 31 and "Note 1 - Summary of
Significant Accounting Policies - Derivative Financial Instruments" in the
"Notes to the Consolidated Financial Statements" beginning on page 39 in the
1999 Annual Report to Stockholders is incorporated herein by reference.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements, schedules and supplementary financial information
required by this item and included in this report or incorporated herein by
reference are listed in the index appearing on page F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information concerning the age and principal occupation of each director is set
forth under the caption "Information Concerning the Nominees and Directors" in
the Proxy Statement and is incorporated herein by reference. Information
concerning executive officers of the Registrant, who do not serve as directors,
is given at the end of Part I of this report.
ITEM 11. EXECUTIVE COMPENSATION
Information concerning compensation of directors and executive officers of the
Registrant is set forth under the captions "Compensation of Directors,"
"Executive Compensation," "Other Benefit Plans and Agreements" and "Certain
Transactions and Arrangements" in the Proxy Statement and is incorporated herein
by reference.
ITEM 12. SECURITIES OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Security ownership of certain beneficial owners of the Company's common stock is
set forth on page 2 of the 2000 Proxy Statement and security ownership of
executive officers and directors of the Company is set forth on pages 6 and 7 of
the 2000 Proxy Statement and is incorporated herein by reference.
Solely for the purpose of calculating the aggregate market value of the voting
stock held by non-affiliates of the Registrant as set forth on the cover of this
report, it has been assumed that directors and executive officers of the
Registrant are affiliates.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information related to certain transactions with directors of the Registrant
is set forth under the captions "Certain Arrangements with Directors" and
"Certain Transactions and Arrangements" in the Proxy Statement and is
incorporated herein by reference.
11
<PAGE> 13
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) Documents filed as a part of this Report:
(1) Financial Statements
The financial statements required to be filed hereunder are listed
on page F-1 hereof.
(2) Financial Statement Schedules
The financial statement schedules required to be filed hereunder
are listed on page F-1 hereof.
(3) Exhibits
Certain of the following exhibits, as indicated parenthetically,
were previously filed as exhibits to other reports or registration
statements filed by the Registrant under the Securities Act of 1933 or
to reports or registration statements filed by the Registrant under the
Securities Exchange Act of 1934, respectively, and are incorporated
herein by reference to such reports.
1 - Distribution Agreement dated November 30, 1993 between
Registrant and PWI (incorporated by reference to Exhibit
1.2 of Registrant's Registration Statement No. 33-52695
filed with the SEC on October 16, 1995).
3.1 - Restated Certificate of Incorporation of Registrant, as
filed with the Office of the Secretary of State of the
State of Delaware on May 15, 1998 (incorporated by
reference to Exhibit 3.1 of Registrant's Form 10-Q for
the quarter ended March 31, 1998).
3.2 - By-laws of the Registrant as amended February 5, 1998
(incorporated by reference to Exhibit 3.5 of
Registrant's Form 10-K for the year ended December 31,
1997).
4.1 - Amended and Restated Stockholders Agreement, dated as of
August 6, 1997 between Paine Webber Group Inc., General
Electric Company, General Electric Capital Corporation,
General Electric Capital Services, Inc. and Kidder
Peabody Group Inc. (incorporated by reference to Exhibit
4.1 of Registrant's Form 8-K dated August 7, 1997).
4.2 - Share Purchase Agreement, dated August 6, 1997, by and
among General Electric Company and General Electric
Capital Services, Inc. and Paine Webber Group Inc.
(incorporated by reference to Exhibit 4.2 of
Registrant's Form 8-K dated August 7, 1997).
4.3 - Copy of form of certificate of common stock to reflect
a new signatory (incorporated by reference to Exhibit
4.1 of Registrant's Form 10-K for the year ended
December 31, 1993).
4.4 - Supplemental Indenture dated as of November 30, 1993
between Registrant and Chase Manhattan Bank Delaware
(formerly known as Chemical Bank (Delaware)), as
Trustee, relating to the Subordinated Debt Securities
(incorporated by reference to Exhibit 4.2g of
Registrant's Registration Statement No. 33-52695 on Form
S-3 filed with the SEC on October 16, 1995).
12
<PAGE> 14
4.5 - Indenture dated as of March 15, 1988 between Registrant
and Chase Manhattan Bank Delaware (formerly known as
Chemical Bank (Delaware)), as Trustee, relating to
Registrant's Subordinated Debt Securities (incorporated
by reference to Exhibit 4.2d of Registrant's
Registration Statement No. 33-52695 on Form S-3 filed
with the SEC on October 16, 1995).
4.6 - Supplemental Indenture dated as of September 22, 1989,
to the Indenture dated as of March 15, 1988, between
Registrant and Chase Manhattan Bank Delaware (formerly
known as Chemical Bank (Delaware)), as Trustee, relating
to Subordinated Debt Securities (incorporated by
reference to Exhibit 4.2e of Registrant's Registration
Statement No. 33-52695 on Form S-3 filed with the SEC on
October 16, 1995).
4.7 - Supplemental Indenture dated as of March 22, 1991
between Registrant and Chase Manhattan Bank Delaware
(formerly known as Chemical Bank (Delaware)), as
Trustee, relating to Subordinated Debt Securities
(incorporated by reference to Exhibit 4.2f of
Registrant's Registration Statement No. 33-52695 on Form
S-3 filed with the SEC on October l6, 1995).
4.8 - Indenture dated as of March 15, 1988 between Registrant
and The Chase Manhattan Bank (formerly known as Chemical
Bank), as Trustee, relating to Registrant's Senior Debt
Securities, (incorporated by reference to Exhibit 4.2a
of Registrant's Registration Statement No. 33-52695 on
Form S-3 filed with the SEC on October 16, 1995).
4.9 - Supplemental Indenture dated as of September 22, 1989,
to the Indenture dated as of March 15, 1988 between
Registrant and The Chase Manhattan Bank (formerly known
as Chemical Bank), as Trustee, relating to Senior Debt
Securities (incorporated by reference to Exhibit 4.2b of
Registrant's Registration Statement No. 33-52695 on Form
S-3 filed with the SEC on October 16, 1995).
4.10 - Supplemental Indenture dated as of March 22, 1991
between Registrant and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee, relating
to Senior Debt Securities (incorporated by reference to
Exhibit 4.2c of Registrant's Registration Statement No.
33-52695 on Form S-3 filed with the SEC on October 16,
1995).
4.11 - Proposed Form of Debt Securities (Medium-Term Senior
Note, Series C, Fixed Rate) (incorporated by reference
to Exhibit 4.1a to Registrant's Registration Statement
No. 33-52695 on Form S-3 filed with the SEC on October
16, 1995).
4.12 - Proposed Form of Debt Securities (Medium-Term
Subordinated Note, Series D, Fixed Rate) (incorporated
by reference to Exhibit 4.1b to Registrant's
Registration Statement No. 33-52695 on Form S-3 filed
with the SEC on October 16, 1995).
4.13 - Proposed Form of Debt Securities (Medium-Term
Subordinated Note, Series C, Floating Rate)
(incorporated by reference to Exhibit 4.1c to
Registrant's Registration Statement No. 33-52695 on Form
S-3 filed with the SEC on October 16, 1995).
4.14 - Proposed Form of Debt Securities (Medium-Term
Subordinated Note, Series D, Floating Rate)
(incorporated by reference to Exhibit 4.1d to
Registrant's Registration Statement No. 33-52695 on Form
S-3 filed with the SEC on October 16, 1995).
4.15 - Proposed Form of Debt Securities (Senior Note, Fixed
Rate) (incorporated by reference to Exhibit 4.1c to
Registrant's Registration Statement No. 33-58124 on Form
S-3 filed with the SEC on February 10, 1993).
13
<PAGE> 15
4.16 - Proposed Form of Debt Securities (Subordinated Note,
Fixed Rate) (incorporated by reference to Exhibit 4.1f
to Registrant's Registration Statement No. 33-58124 on
Form S-3 filed with the SEC on February 10, 1993).
4.17 - Form of Junior Subordinated Debt Indenture dated
November 1996 between the Registrant and The Chase
Manhattan Bank as Trustee (incorporated by reference to
Exhibit 4.1 of Registrant's Registration Statement No.
333-13831 on Form S-3 filed with the SEC on November 22,
1996).
4.18 - Certificate of Trust of PWG Capital Trust I
(incorporated by reference to Exhibit 4.4 of
Registrant's Registration Statement No. 333-13831 on
Form S-3 filed with the SEC on November 22, 1996).
4.19 - Certificate of Trust of PWG Capital Trust II
(incorporated by reference to Exhibit 4.5 of
Registrant's Registration Statement No. 333-13831 on
Form S-3 filed with the SEC on November 22, 1996).
4.20 - Form of Amended and Restated Declaration of Trust for
PWG Capital Trust I and II (incorporated by reference to
Exhibit 4.11 of Registrant's Registration Statement No.
333-13831 on Form S-3 filed with the SEC on November 22,
1996).
4.21 - Form of Preferred Security relating to Preferred Trust
Securities of PWG Capital Trust I and II (incorporated
by reference to Exhibit 4.12 of Registrant's
Registration Statement No. 333-13831 on Form S-3 filed
with the SEC on November 22, 1996).
4.22 - Form of Supplemental Indenture to be used in connection
with issuance of Junior Subordinated Debt Securities
(incorporated by reference to Exhibit 4.13 of
Registrant's Registration Statement No. 333-13831 on
Form S-3 filed with the SEC on November 22, 1996).
4.23 - Form of Supplemental Indenture to be used in connection
with issuance of Junior Subordinated Debt Securities
(incorporated by reference to Exhibit 4.11 to
Registrant's Registration Statement No. 333-67187 on
Form S-3 filed with the SEC on November 12, 1998).
4.24 - Form of Junior Subordinated Debt Security (incorporated
by reference to Exhibit 4.14 of Registrant's
Registration Statement No. 333-13831 on Form S-3 filed
with the SEC on November 22, 1996).
4.25 - Form of Guarantee with respect to Preferred Securities
relating to Preferred Trust Securities of PWG Capital
Trust I and II (incorporated by reference to Exhibit
4.15 of Registrant's Registration Statement No.
333-13831 on Form S-3 filed with the SEC on November 22,
1996).
The credit agreements listed below have not been registered under the
Securities Act of 1933 or the Securities Exchange Act of 1934, nor does
the indebtedness that they represent exceed, in the aggregate, 10% of the
total assets of Registrant and its subsidiaries on a consolidated basis.
Consequently, these instruments have not been filed as an exhibit with
this report, but copies will be furnished to the SEC upon request.
Credit Agreement dated as of December 7, 1997, as amended, among
Registrant, the Initial Lenders named therein, and The Bank of New York,
Administrative Agent, relating to the $1.2 billion credit facility.
14
<PAGE> 16
Credit Agreement dated as of August 30, 1996, as amended, among, PWI, the
Initial Lenders named therein, and The Chase Manhattan Bank, as
Administrative Agent, relating to the $1.0 billion secured credit
facility.
Credit Agreement dated as of August 30, 1996, as amended, among, Paine
Webber Real Estate Securities Inc., the Initial Lenders named therein,
and The Chase Manhattan Bank, as Administrative Agent, relating to the
$1.0 billion secured credit facility.
Credit Agreement dated as of August 30, 1996, as amended, among,
PaineWebber International (U.K.) Ltd., the Initial Lenders named therein,
and The Chase Manhattan Bank, as Administrative Agent, relating to the
$1.0 billion secured credit facility.
10.1 - Omnibus Amendment to Grantor Trust Agreement under
Registrant's Senior Officer Deferred Compensation Plan
dated as of August 15, 1996 (incorporated by reference
to Exhibit 10.8 of Registrant's Form 10-K for the year
ended December 31, 1996).
10.2 - Second Restated and Amended Agreement of Lease, dated as
of May 1, 1996, between 1285 Associates Limited
Partnership and PWI relating to property located at 1285
Avenue of the Americas, New York, New York (incorporated
by reference to Exhibit 10.1 of Registrant's Form 10-Q
for the quarter ended March 31, 1996).
10.3 - Guarantee dated as of May 1, 1996 between Registrant and
1285 Associates Limited Partnership relating to the
lease of property located at 1285 Avenue of the
Americas, New York, New York (incorporated by reference
to Exhibit 10.2 of Registrant's Form 10-Q for the
quarter ended March 31, 1996).
10.4 - Amended and Restated Investment Agreement dated as of
November 5, 1992 by and between Registrant and The
Yasuda Mutual Life Insurance Company ("Yasuda")
(incorporated by reference to Exhibit 10.9 to
Registrant's Form 10-K for the year ended December 31,
1997).
10.5 - Lease Agreement dated as of April 14, 1986, between PWI
(as Tenant) and Hartz-PW Limited Partnership (as
Landlord) relating to the Lincoln Harbor Project
(Operations Center) located in Weehawken, New Jersey
(incorporated by reference to Exhibit 10.37 of
Registrant's Form 10-K for the year ended December 31,
1995).
10.6 - Lease Agreement dated as of April 14, 1986, between PWI
(as Tenant) and Hartz-PW Limited Partnership (as
Landlord) relating to the Lincoln Harbor Project (Data
Processing Center) located in Weehawken, New Jersey
(incorporated by reference to Exhibit 10.38 of
Registrant's Form 10-K for the year ended December 31,
1995).
10.7 - Lease Agreement dated as of April 14, 1986, between PWI
(as Tenant) and Hartz-PW Tower B Limited Partnership, as
successor in interest to Hartz-PW Hotel Limited
Partnership relating to the Lincoln Harbor Project
(Tower B/Office Building) located in Weehawken, New
Jersey (incorporated by reference to Exhibit 10.39 of
Registrant's Form 10-K for the year ended December 31,
1995).
10.8 - Agreement of Limited Partnership of Hartz-PW Limited
Partnership dated April 14, 1986 relating to the Lincoln
Harbor Project (Operation Center and Data Processing
Center) located in Weehawken, New Jersey (incorporated
by reference to Exhibit 10.40 of Registrant's Form 10-K
for the year ended December 31, 1995).
10.9 - Agreement of Limited Partnership of Hartz-Tower B
Limited Partnership dated April 14, 1986, as amended,
relating to the Lincoln Harbor Project (Tower B/Office
Building) located in Weehawken, New Jersey (incorporated
by reference to Exhibit 10.41 of Registrant's Form 10-K
for the year ended December 31, 1995).
15
<PAGE> 17
10.10 - Ground lease between Hartz Mountain Industries and
Hartz-PW Limited Partnership dated April 14, 1986
relating to the Operations Center at the Lincoln Harbor
Project in Weehawken, New Jersey (incorporated by
reference to Exhibit 10.42 of Registrant's Form 10-K for
the year ended December 31, 1995).
10.11* - Lease Agreement dated as of March 31, 1999, between PWI
(as Tenant) and Newport Office Center III Company, LLC,
relating to the Newport Office Center located in Jersey
City, New Jersey.
10.12 - Directors and Officers Liability and Corporation
Reimbursement insurance policy with Fiduciary Liability
Rider with National Union Fire Insurance Company
(incorporated by reference to Exhibit 10.51 of
Registrant's Form 10-K for the year ended December 31,
1996).
10.13+ - Limited Partnership Agreement of PW Partners 1993 L.P.
dated as of February 2, 1994 (incorporated by reference
to Exhibit 10.2 of Registrant's Form 10-K for the year
ended December 31, 1994).
10.14+ - Amendment to the Registrant's Senior Officer Deferred
Compensation Plan dated as of August 15, 1996
(incorporated by reference to Exhibit 10.5 of
Registrant's Form 10-K for the year ended December 31,
1996).
10.15+ - Amendment to the Registrant's Senior Officer Deferred
Compensation Plan dated as of September 1, 1996
(incorporated by reference to Exhibit 10.6 of
Registrant's Form 10-K for the year ended December 31,
1996).
10.16+ - Omnibus Amendment to Grantor Trust Agreement under
Registrant's Senior Officer Deferred Compensation Plan
dated as of August 9, 1996 (incorporated by reference to
Exhibit 10.7 of Registrant's Form 10-K for the year
ended December 31, 1996).
10.17+ - Form of Registrant's 1994 Senior Officer Deferred
Compensation Plan Grantor Trust Agreement (incorporated
by reference to Exhibit 10.25 of Registrant's Form 10-K
for the year ended December 31, 1997).
10.18+ - Registrant's 1994 Stock Award Plan (incorporated by
reference to Exhibit 4.1 of Registrant's Registration
Statement No. 33-55457 on Form S-8 filed with the SEC on
September 13, 1994).
10.19+ - Registrant's 1994 Executive Stock Award Plan
(incorporated by reference to Exhibit 4.1 of
Registrant's Registration Statement No. 33-55451 on Form
S-8 filed with the SEC on September 13, 1994).
10.20+ - Registrant's 1994 Non-Employee Director Stock Plan
(incorporated by reference to Exhibit 4.1 of
Registrant's Registration Statement No. 33-53489 on Form
S-8 filed with the SEC on May 5, 1994).
10.21+ - Employment agreement dated as of May 4, 1993 between
Registrant, PWI and Theodore A. Levine (incorporated by
reference to Exhibit 10.2 of Registrant's Form 10-K for
the year ended December 31, 1993).
10.22+ - Letter dated as of October 27, 1995 amending certain
provisions of the Employment Agreement between
Registrant, PWI and Theodore A. Levine (incorporated by
reference to Exhibit 10.20 of Registrant's Form 10-K for
the year ended December 31, 1995).
16
<PAGE> 18
10.23+ - Employment Agreement dated as of January 2, 1987 between
Registrant, PWI and Donald B. Marron (incorporated by
reference to Exhibit 10.23 of Registrant's Form 10-K for
the year ended December 31, 1995).
10.24+ - Deferred Compensation Agreement dated as of August 29,
1988 between Registrant and Donald B. Marron relating to
the Supplemental Employees Retirement Plan (incorporated
by reference to Exhibit 10.26 of Registrant's Form 10-K
for the year ended December 31, 1995).
10.25+ - Agreement and Declaration of Trust for Supplemental
Employees Retirement Plan dated as of January 1, 1990
between Registrant and Chase Manhattan Bank, N.A. as
Trustee (incorporated by reference to Exhibit 10.36 of
Registrant's Form 10-K for the year ended December 31,
1996).
10.26+ - Form of Registrant's Trust Agreement under Registrant's
Supplemental Employee Retirement Plan for Certain Senior
Officers dated as of February 1, 1999 (incorporated by
reference to Exhibit 10.33 of Registrant's Form 10-K
for the year ended December 31, 1998).
10.27+ - Form of Registrant's Supplemental Employee Retirement
Plan for Certain Senior Officers dated as of February 1,
1999 (incorporated by reference to Exhibit 10.34 of
Registrant's Form 10-K for the year ended December 31,
1998).
10.28+ - Form of Registrant's Trust Agreement under Registrant's
Senior Officer Deferred Compensation Plan dated as of
February 1, 1999 (incorporated by reference to Exhibit
10.35 of Registrant's Form 10-K for the year ended
December 31, 1998).
10.29+ - Form of Registrant's Trust Agreement under Registrant's
Senior Officer Deferred Compensation Plan dated as of
February 1, 1999 (incorporated by reference to Exhibit
10.36 of Registrant's Form 10-K for the year ended
December 31, 1998).
10.30+ - Registrant's Equity Plus Program (incorporated by
reference to Exhibit 10.37 of Registrant's Form 10-K
for the year ended December 31, 1998).
10.31+ - Limited Partnership Agreement of PW Partners 1995 L.P.
dated as of October 31, 1995 (incorporated by reference
to Exhibit 10.47 of Registrant's Form 10-K for the year
ended December 31, 1995).
10.32+ - Limited Partnership Agreement of PW Partners 1997 L.P.
dated as of March 11, 1998 (incorporated by reference
to Exhibit 10.39 of the Registrant's Form 10-K for the
year ended December 31, 1998).
10.33+* - Registrant's 1999 Executive Incentive Compensation Plan.
11+ - Computation of Earnings Per Share - The information set
forth under the caption "Note 14: Earnings per Common
Share" on page 54 in the 1999 Annual Report to
Stockholders is incorporated herein by reference.
12.1* - Computation of Ratio of Earnings to Fixed Charges.
12.2* - Computation of Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends.
- ------------------------------
+ Management contract or compensatory plan or arrangement required to be filed
as an exhibit to this Form 10-K pursuant to Item 14(c).
* Filed herewith
17
<PAGE> 19
13* - 1999 Annual Report to Stockholders of the Registrant.
21* - Subsidiaries of the Registrant.
23* - Consent of Independent Auditors.
27* - Financial Data Schedules.
(b) Reports on Form 8-K:
None.
- -------------------
* Filed herewith.
18
<PAGE> 20
PAINE WEBBER GROUP INC.
ITEMS 8, 14(a)(1) AND (2) AND 14(d)
INDEX TO FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULES
Financial Statements
Incorporated herein by reference are the following financial statements included
in the 1999 Annual Report to Stockholders. With the exception of the following
financial statements and the information incorporated by reference on items 1,
5, 6, 7 and 7a, the 1999 Annual Report to Stockholders is not to be deemed filed
as part of this report.
<TABLE>
<CAPTION>
1999 Annual
Report
Description (Page)
----------- -----------
<S> <C>
Report of independent auditors 56
Consolidated statements of financial
condition at December 31, 1999 and 1998 35
For the years ended December 31, 1999, 1998 and 1997:
Consolidated statements of income 34
Consolidated statements of changes in
stockholders' equity 36-37
Consolidated statements of cash flows 38
Notes to consolidated financial statements 39-55
Quarterly financial information (unaudited) 57
</TABLE>
Schedules
<TABLE>
<CAPTION>
Form 10-K
Description (Page)
----------- -----------
<S> <C>
Report of independent auditors F-2
I - Condensed financial information F-3 - F-6
</TABLE>
All other schedules have been omitted since the required information is not
present in amounts sufficient to require submission of the schedules, or because
the information required is included in the respective consolidated financial
statements or notes thereto.
F-1
<PAGE> 21
REPORT OF INDEPENDENT AUDITORS
THE BOARD OF DIRECTORS AND STOCKHOLDERS
PAINE WEBBER GROUP INC.
We have audited the consolidated financial statements of Paine Webber Group Inc.
as of December 31, 1999 and 1998, and for each of the three years in the period
ended December 31, 1999, and have issued our report thereon dated January 31,
2000. Our audits also included the financial statement schedule listed in the
Index to Financial Statements and Financial Statement Schedules on page F-1.
This schedule is the responsibility of the Company's management. Our
responsibility is to express an opinion based on our audits.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic consolidated financial statements taken as a
whole, presents fairly in all material respects the information set forth
therein.
ERNST & YOUNG LLP
New York, New York
January 31, 2000
F-2
<PAGE> 22
SCHEDULE I
CONDENSED FINANCIAL INFORMATION OF REGISTRANT
PAINE WEBBER GROUP INC.
(PARENT COMPANY ONLY)
CONDENSED STATEMENTS OF INCOME
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------
1999 1998 1997
--------- --------- ---------
<S> <C> <C> <C>
Revenues
Interest $ 401,831 $ 285,554 $ 262,573
Other 1,312 506 379
--------- --------- ---------
Total revenues 403,143 286,060 262,952
Interest expense 389,659 376,949 320,838
--------- --------- ---------
Net revenues 13,484 (90,889) (57,886)
--------- --------- ---------
Equity in net income of affiliates 610,549 482,980 447,529
Non-interest (income) expense (385) 651 1,514
--------- --------- ---------
Income before taxes 624,418 391,440 388,129
Benefit for income taxes 4,181 42,115 27,320
--------- --------- ---------
Net income $ 628,599 $ 433,555 $ 415,449
========= ========= =========
Dividends and amortization of discount
on preferred stock 22,802 23,647 29,513
Unamortized discount charged to equity
on redemption of preferred stock 59,883 -- --
--------- --------- ---------
Net income applicable to common shares $ 545,914 $ 409,908 $ 385,936
========= ========= =========
</TABLE>
See Notes to Condensed Financial Information of Registrant.
F-3
<PAGE> 23
SCHEDULE I
CONDENSED FINANCIAL INFORMATION OF REGISTRANT
PAINE WEBBER GROUP INC.
(PARENT COMPANY ONLY)
CONDENSED STATEMENTS OF FINANCIAL CONDITION
(IN THOUSANDS OF DOLLARS EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
December 31, December 31,
1999 1998
------------ ------------
<S> <C> <C>
ASSETS
Cash and cash equivalents $ 481 $ 21
Financial instruments owned 161,316 158,408
Loans to and receivables from affiliates 7,931,898 6,784,882
Investments in affiliates 2,913,029 2,354,821
Other assets 246,048 239,258
------------ ------------
$ 11,252,772 $ 9,537,390
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Short-term borrowings $ 1,325,409 $ 1,041,973
Financial instruments sold, not yet purchased 37,413 29,597
Payables to affiliates 570,047 570,140
Other liabilities and accrued expenses 760,239 602,589
Junior Subordinated Debentures held by Trusts 405,928 405,928
Long-term borrowings 5,236,479 4,258,405
------------ ------------
8,335,515 6,908,632
Commitments and contingencies
Redeemable Preferred Stock -- 189,815
Stockholders' Equity:
Common stock, $1 par value, 400,000,000
shares authorized; issued 193,145,152 shares
and 191,047,151 shares in 1999 and 1998, respectively 193,145 191,047
Additional paid-in capital 1,672,085 1,525,938
Retained earnings 2,171,080 1,689,386
Treasury stock, at cost; 47,557,064 shares and 47,527,707
shares in 1999 and 1998, respectively (1,113,736) (962,792)
Accumulated other comprehensive income (5,317) (4,636)
------------ ------------
2,917,257 2,438,943
------------ ------------
$ 11,252,772 $ 9,537,390
============ ============
</TABLE>
See Notes to Condensed Financial Information of Registrant.
F-4
<PAGE> 24
SCHEDULE I
CONDENSED FINANCIAL INFORMATION OF REGISTRANT
PAINE WEBBER GROUP INC.
(PARENT COMPANY ONLY)
CONDENSED STATEMENTS OF CASH FLOWS
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------------------------
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 628,599 $ 433,555 $ 415,449
Adjustments to reconcile net income to cash
used for operating activities:
Noncash items included in net income:
Equity in income of affiliates (610,549) (482,980) (447,529)
Depreciation and amortization (6,879) (6,989) (1,309)
Deferred income taxes 2,932 (12,478) 1,862
Amortization of deferred charges 6,662 6,972 2,809
(Increase) decrease in assets:
Financial instruments owned (2,908) (158,408) --
Loans to and receivables from affiliates (1,010,654) (1,150,593) (1,644,602)
Investment in affiliates (1,958) 18,371 111,389
Other assets (16,543) 143,172 (117,002)
Increase (decrease) in liabilities:
Payables to affiliates (93) (5,901) 534,508
Financial instruments sold, not yet purchased 7,816 29,597 --
Other liabilities and accrued expenses 177,157 323,528 172,607
Proceeds from:
Dividends received from subsidiaries 100,000 325,000 225,000
----------- ----------- -----------
Cash used for operating activities (726,418) (537,154) (746,818)
----------- ----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Payments for:
Office equipment and leasehold improvements (679) (523) (61)
----------- ----------- -----------
Cash used for investing activities (679) (523) (61)
----------- ----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from (payments on):
Short-term borrowings 283,436 (212,154) 340,656
Proceeds from:
Junior Subordinated Debentures held by Trusts -- -- 204,897
Long-term borrowings 1,414,997 1,148,860 822,011
Employee stock transactions 85,042 45,257 72,820
Payments for:
Long-term borrowings (449,525) (293,223) (198,360)
Repurchases of common stock (270,611) (67,613) (411,668)
Preferred stock transactions (250,000) -- --
Dividends (85,782) (83,988) (82,918)
----------- ----------- -----------
Cash provided by financing activities 727,557 537,139 747,438
----------- ----------- -----------
Increase (decrease) in cash and cash equivalents 460 (538) 559
Cash and cash equivalents, beginning of year 21 559 --
----------- ----------- -----------
Cash and cash equivalents, end of year $ 481 $ 21 $ 559
=========== =========== ===========
</TABLE>
See Notes to Condensed Financial Information of Registrant.
F-5
<PAGE> 25
SCHEDULE I
CONDENSED FINANCIAL INFORMATION OF REGISTRANT
PAINE WEBBER GROUP INC.
(PARENT COMPANY ONLY)
NOTES TO CONDENSED FINANCIAL INFORMATION OF REGISTRANT
(IN THOUSANDS OF DOLLARS EXCEPT SHARE AMOUNTS)
GENERAL
The condensed financial information of Paine Webber Group Inc. (the
"Company") should be read in conjunction with the consolidated financial
statements of Paine Webber Group Inc. and its subsidiaries and the notes
thereto incorporated by reference in this report. Certain reclassifications
and format changes have been made to prior year amounts to conform to the
current year presentation.
Included in non-interest income or expense in the Condensed Statements of
Income is the amortization of negative goodwill.
Expenses related to compensation plans sponsored by the Company for the
benefit of employees of its subsidiaries are expensed at the subsidiary
level.
STATEMENT OF CASH FLOWS
Interest payments for the years ended December 31, 1999, 1998 and 1997
approximated $372,047, $366,535 and $312,509, respectively. Income tax
payments (consolidated) totaled $379,194, $236,597 and $278,553 for the
years ended December 31, 1999, 1998 and 1997, respectively. The income tax
provision of affiliates is reflected on an individual company basis and is
included in equity in net income of affiliates.
COMMITMENTS AND CONTINGENCIES
The Company has guaranteed certain of its subsidiaries' unsecured lines of
credit and contractual obligations.
The Company guarantees payments due from PWG Capital Trust I and PWG
Capital Trust II ("Trust I" and "Trust II", respectively), wholly owned
subsidiaries of the Company, to holders of 8.30% Trust I Securities and
8.08% Trust II Securities, on a subordinated basis, to the extent the
Company has made principal and interest payments on the 8.30% Junior
Subordinated Debentures and 8.08% Junior Subordinated Debentures
(collectively, the "Junior Subordinated Debentures"). This guarantee,
together with the Company's obligations under the Junior Subordinated
Debentures, provides a full and unconditional guarantee on a subordinated
basis of amounts due on the Preferred Trust Securities.
F-6
<PAGE> 26
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this Report to be signed on its
behalf by the undersigned, thereunto duly authorized on March 30, 2000.
PAINE WEBBER GROUP INC.
(Registrant)
BY: /s/ Donald B. Marron
------------------------------
Donald B. Marron
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the Registrant and
in the capacities indicated on March 30, 2000.
/s/ Donald B. Marron
------------------------------
Donald B. Marron
Chairman of the Board,
Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Jerome T. Fadden
------------------------------
Jerome T. Fadden
Senior Vice President and Chief
Financial Officer
(Principal Financial and Accounting Officer)
/s/ E. Garrett Bewkes, Jr.
------------------------------
E. Garrett Bewkes, Jr.
Director
/s/ Reto Braun
------------------------------
Reto Braun
Director
/s/ Regina A. Dolan
------------------------------
Regina A. Dolan
Director
------------------------------
Frank P. Doyle
Director
<PAGE> 27
SIGNATURES
/s/ Joseph J. Grano, Jr.
------------------------------
Joseph J. Grano, Jr.
Director
/s/ James W. Kinnear
------------------------------
James W. Kinnear
Director
------------------------------
Naoshi Kiyono
Director
/s/ Robert M. Loeffler
------------------------------
Robert M. Loeffler
Director
/s/ Edward Randall, III
------------------------------
Edward Randall, III
Director
/s/ Henry Rosovsky
------------------------------
Henry Rosovsky
Director
/s/ Ken-ichi Sekiguchi
------------------------------
Ken-ichi Sekiguchi
Director
------------------------------
John R. Torell, III
Director
<PAGE> 1
Exhibit 10.11
LEASE BY AND BETWEEN PAINEWEBBER INCORPORATED
AND NEWPORT OFFICE CENTER III COMPANY, LLC
NEWPORT OFFICE CENTER III, JERSEY CITY, NEW JERSEY
(All Lease Documents dated as of March 31, 1999, unless otherwise noted)
1. Agreement of Lease
2. Memorandum of Lease
3. Guaranty of Lease by Paine Webber Group, Inc.
4. Subordination, Non-disturbance and Attornment Agreement with SJL NJ
Properties Holding Corp. (Existing Mortgagee on the Property)
5. Subordination, Non-disturbance and Attornment Agreement with Logo Newport
Land Owners Limited Liability Company (Owner of the Property and Ground
Lessor)
6. Subordination, Non-disturbance and Attornment Agreement with Newport Office
Center III Company, LLC (Superior Landlord under the Urban Renewal Lease)
7. Subordination, Non-disturbance and Attornment Agreement with N.O.C. III
Urban Renewal Limited Liability Company (Urban Renewal Entity)
8. Subordination, Non-disturbance and Attornment Agreement with Simon Newport
Office Company Limited Partnership (Landlord under the Garage Space Lease)
9. Side Letter from Lefrak Organization, Inc., dated March 23, 1999, regarding
expansion issues
10 Lefrak Guaranty of Liquidated Damages for Failure to Deliver Substitute
Space
11 Letter from Newport Office Center III Company, LLC, dated March 18, 1999,
regarding monthly electric charge estimate
12 Unanimous Consent of Shareholders and Directors of N.O.C. III Realty Corp.,
dated as of March 1, 1999
13 Unanimous Consent of Shareholders and Directors of Newport Real Estate Dev.
Corp., dated as of March 1, 1999
14 Unanimous Consent of Sole Shareholder and Director of Lefrak Organization,
Inc., dated as of March 1, 1999
<PAGE> 2
AGREEMENT OF LEASE
between
NEWPORT OFFICE CENTER III COMPANY, LLC
Landlord
and
PAINEWEBBER INCORPORATED
Tenant
Entire 9th, 10th, 11th, 12th, 14th and 15th Floors
Newport Office Center III
499 Washington Boulevard
Jersey City, New Jersey
Sills Cummis Radin Tischman Epstein & Gross
One Riverfront Plaza
Newark, New Jersey 01702
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE 1
TERM. RENEWAL TERM: COMMENCEMENT
AND EXPIRATION DATE. END OF TERM....................................................................... -1-
ARTICLE 2
FIXED RENT, ADDITIONAL RENT; ADDITIONAL CHARGES........................................................ -9-
ARTICLE 3
OCCUPANCY: PERMITTED USE, RESTRICTED USES............................................................. -25-
ARTICLE 4
ALTERATIONS........................................................................................... -31-
ARTICLE 5
MAINTENANCE AND REPAIRS............................................................................... -38-
ARTICLE 6
WINDOW CLEANING....................................................................................... -40-
ARTICLE 7
LEGAL REQUIREMENTS; FLOOR LOADS....................................................................... -40-
ARTICLE 8
SUBORDINATION; ATTORNMENT; MODIFICATIONS............................................................. -43-
ARTICLE 9
INSURANCE; PROPERTY LOSS; DAMAGE; REIMBURSEMENT;
INDEMNITY; EXCULPATION AND NON-LIABILITY.............................................................. -45-
ARTICLE 10
DESTRUCTION. FIRE AND OTHER CASUALTY................................................................. -51-
ARTICLE 11
EMINENT DOMAIN........................................................................................ -53-
ARTICLE 12
ASSIGNMENT; SUBLETTING; MORTGAGE, ETC. ............................................................... -55-
ARTICLE 13
ELECTRICITY........................................................................................... -67-
</TABLE>
-i-
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE 14
ACCESS TO PREMISES.................................................................................... -70-
ARTICLE 15
PARKING............................................................................................... -71-
ARTICLE 16
DEFAULT............................................................................................... -76-
ARTICLE 17
REMEDIES AND DAMAGES.................................................................................. -79-
ARTICLE 18
INTENTIONALLY OMITTED................................................................................. -81-
ARTICLE 19
BUILDING ALTERATIONS AND MANAGEMENT; CHANGES IN BUILDING
FACILITIES, SYSTEMS AND NAME; BUILDING DIRECTORY...................................................... -81-
ARTICLE 20
NO REPRESENTATIONS BY LANDLORD....................................................................... -85-
ARTICLE 21
QUIET ENJOYMENT....................................................................................... -85-
ARTICLE 22
WAIVERS............................................................................................... -85-
ARTICLE 23
WAIVER OF TRIAL BY JURY............................................................................... -86-
ARTICLE 24
SERVICES.............................................................................................. -86-
ARTICLE 25
INABILITY TO PERFORM; INDEPENDENT COVENANTS........................................................... -95-
ARTICLE 26
BILLS AND NOTICES..................................................................................... -97-
ARTICLE 27
CONSTRUCTION OF LEASE................................................................................. -98-
ARTICLE 28
</TABLE>
-ii-
<PAGE> 5
<TABLE>
<S> <C>
ADJACENT EXCAVATION. SHORING.......................................................................... -99-
ARTICLE 29
RULES AND REGULATIONS................................................................................. -99-
ARTICLE 30
SECURITY DEPOSIT..................................................................................... -100-
ARTICLE 31
BROKER............................................................................................... -100-
ARTICLE 32
CONSENTS............................................................................................. -101-
ARTICLE 33
ESTOPPEL CERTIFICATES................................................................................ -101-
ARTICLE 34
ARBITRATION/EXPEDITED ARBITRATION.................................................................... -102-
ARTICLE 35
INTENTIONALLY OMITTED................................................................................ -104-
ARTICLE 36
LANDLORD'S PERFORMANCE OF THE LANDLORD'S WORK; TENANT'S PERFORMANCE OF
THE TENANT'S INITIAL ALTERATIONS AND LANDLORD'S PAYMENT OF LANDLORD'S
CONTRIBUTION TOWARDS SUCH TENANT WORK................................................................ -104-
ARTICLE 37
MISCELLANEOUS........................................................................................ -110-
ARTICLE 38
TENANT'S NON-EXCLUSIVE RIGHT TO INSTALL AN ANTENNA ON A PORTION OF THE
BUILDING'S ROOF AND TO USE A PORTION OF THE OUTSIDE OF THE BUILDING FOR
THE INSTALLATION OF AN EMERGENCY POWER SUPPLY WITH ASSOCIATED EQUIPMENT
FOR THE SUPPLY OF EMERGENCY POWER "EPS" TO THE PREMISES AND TO INSTALL
A SUPPLEMENTAL COOLING TOWER ON THE BUILDING'S ROOF.................................................. -112-
ARTICLE 39
TENANT'S OPTION TO LEASE ADDITIONAL AVAILABLE SPACE IN THE BUILDING.................................. -114-
</TABLE>
-iii-
<PAGE> 6
<TABLE>
<S> <C>
ARTICLE 40
TENANT'S OBLIGATION TO SURRENDER A FLOOR OF THE PREMISES............................................. -116-
ARTICLE 41
GUARANTY OF LEASE.................................................................................... -117-
ARTICLE 42
LANDLORD'S PARTIAL REIMBURSEMENT OF TENANT'S MOVE-IN COSTS FOR THE PREMISES.......................... -117-
EXHIBIT A
FLOOR PLAN OF THE GROUND FLOOR PREMISES
EXHIBIT A-1
NEWPORT SITE PLAN
EXHIBIT A-2
TENANT EPS EQUIPMENT LOCATION ON THE OUTSIDE OF THE BUILDING
EXHIBIT A-3
LOCATION OF TENANT'S SUPPLEMENTAL COOLING TOWER ON THE BUILDING'S ROOF
EXHIBIT B
FIXED RENT SCHEDULE
EXHIBIT C
CLEANING SPECIFICATIONS AND SCHEDULE
EXHIBIT D
VENTILATED/COOLED AIR PERFORMANCE AND DESIGN CRITERIA
EXHIBIT E
RULES AND REGULATIONS
EXHIBIT F
FORM OF MEMORANDUM OF LEASE
EXHIBIT G
TERMS AND CONDITIONS OF THE ANTENNA INSTALLATION
</TABLE>
-iv-
<PAGE> 7
EXHIBIT G-1
TERMS AND CONDITIONS OF THE EPS EQUIPMENT INSTALLATION
EXHIBIT G-2
TERMS AND CONDITIONS OF THE COOLING TOWER INSTALLATION
EXHIBIT H
RAISED FLOOR PLANS
EXHIBIT I
LOCATION OF THE DEDICATED SHAFT AREA(S)
EXHIBIT J
APPROVED FORM OF NON-DISTURBANCE AGREEMENT
EXHIBIT K
FORM OF GUARANTY
SCHEDULE 1
LIST AND DESCRIPTION OF THE BUILDING PLANS
SCHEDULE 2
DESCRIPTION OF THE BASE BUILDING WORK FOR THE OFFICE PREMISES
SCHEDULE 2-A
DESCRIPTION OF THE LANDLORD'S WORK FOR THE GROUND FLOOR PREMISES
SCHEDULE 3
LANDLORD'S PRO FORMA BUDGET
SCHEDULE 3-A
LANDLORD'S PRO FORMA RETAIL SPACE BUDGET
SCHEDULE 4
LISTING OF LESSORS AND MORTGAGEES EXISTING AS OF THE DATE OF THIS LEASE
SCHEDULE 5
LIST OF EXCLUDED ENTITIES
(For Purposes of Section 19.2(C))
-v-
<PAGE> 8
SCHEDULE 6
OVERTIME COSTS FOR THE FIRST TWELVE MONTH PERIOD AFTER THE RENT
COMMENCEMENT DATE
SCHEDULE 7
RENTABLE SQUARE FEET OF EACH FLOOR OF THE BUILDING
-vi-
<PAGE> 9
INDEX TO DEFINITIONS
<TABLE>
<S> <C>
A/C System Section 24.3(A)
Acceptable Parking Area Section 15.6
ADA Section 7.6(B)
Additional Charges Section 2.2(A)
Additional Rent Section 2.1(B)
Additional Date Section 1.1(B)(3)
Additional Period Section 12.5(C)
Affiliate Section 12.5(A)(8)(b)
Alteration Section 4.1(A)
Antenna Exhibit G
Antenna Installation Section 38.1(A)
ASP Section 13.5
Assessed Valuation Section 2.2(B)(2)
Assessments Section 2.2(B)(13)
Availability Date Section 39.1(A)
Background Information Section 12.5(B)
Bankruptcy Code Section 12.12(A)
Bankruptcy Event(s) Section 16.1(D)(7)
Base Building Work Section 36.1(B)
Base Ground Floor Operating Costs Amount Section 2.2(B)(15)
Base Tax Amount Section 2.2(B)(13)
Base Taxes Section 2.2(B)(4)
Building Witnesseth Clause
Building Condenser Water System Section 24.3(C)
Building Electric Amount Section 13.1(B)
Building Plans Section 36.1(A)
Building Plans Work Section 36.1(A)
Building Systems Section 2.2(B)(8)
Buildings Department Section 4.3
Business Days Section 24.1(A)
Business Hours Section 24.1(A)
Carpetable Floor Area Section 24.2(A)
C&W Section 31.1.(B)
Certificate of Occupancy Section 3.1
Commencement Date Section 1.1(A)
Common Areas Section 13.8
Comparable Market Section 2.7(A)
Comparable Parking Garage Section 15.10(A)
Comparison Year Section 2.2(B)(7)
Control Section 12.9
Cooling Tower Installation Section 38.2(C)
Credit Test Section 12.9(A)
Declaration Section 2.2(B)(13)
Dedicated Shaft Area(s) Section 13.3(B)
Default Expenses Section 17.2(A)(3)
Deficiency Section 17.2(A)(3)
DEP Section 7.5(B)
Dining Facilities Section 3.1
Dual Elevator Bank Tenant Section 24.1(B)(5)(a)
</TABLE>
-vii-
<PAGE> 10
<TABLE>
<S> <C>
Electrical Administrative Fee Section 13.1(A)
Electric Deficiency Section 13.1(D)
Environmental Laws Section 7.5(A)
EPS Section 38.1(B)
EPS Equipment Section 38.1(B)
EPS Location Section 38.1(B)
Estimated Tenant's Monthly Electric Amount Section 13.1(D)
Estimated Tenant's Monthly Gas Amount Section 24.1(B)(7)
Estimated Tenant's Monthly Water Amount Section 24.1(B)(12)
Event of Default Section 16.1
Excess Electric Amount Section 13.1(D)
Expedited Arbitration Section 34.2(A)
Expiration Date Section 1.1(A)
Fair Market Rent Section 2.7(A)
Final Tenant's Plans Section 36.9(A)
Financial Services Installation Section 3.7(B)
Fire Stairs Section 3.6
Fixed Expiration Date Section 1.1(A)
Fixed Rent Section 2.1(A)
GAAP Section 2.2(B)(8)
Generator Location Section 38.1.(B)
Garage Access Cards Section 15.9
Ground Floor Operating Costs Section 2.2(8)(e)
Ground Floor Premises Witnesseth Clause
Ground Floor Premises Work Section 36.1(C)
Guarantor Article 41
Guaranty of Lease Article 41
Heating System Section 24.2(A)
Insurance Body/Bodies Section 7.1(A)
Interest Rate Section 2.1(H)
Interior Vertical Lift Section 1.1(B)(2)
Landlord Preamble; Article 27(B)
Landlord Indemnitees Section 9.1(B)
Landlord's Appraiser Section 2.7(B)(3)
Landlord's Contribution Section 36.9(B)(1)
Landlord's Determination Section 2.7(B)(1)
Landlord's First Response Period Section 12.4(B)
Landlord's Notice Section 2.7(B)(3)
Landlord's Offer Notice Section 39.1(A)
Landlord's Option Section 12.4(B)
Landlord's Repair Notice Section 10.1(E)(1)
Landlord's Second Response Period Section 12.5(B)
Landlord's Signage Guidelines Section 19.2(A)(2)
Landlord's Work Section 36.1(D)
Last Call Notice Section 24.3(E)
Leaseback Space Section 12.4(B)
LeFrak Family Section 12.5(A)(5)
LeFrak REIT Section 12.5(A)(5)
Legal Authority/Authorities Section 7.1(A)
Legal Requirements Section 7.1(A)
Lessor(s) Section 8.1
Material Interruption Section 25.2(B)
Mortgage Section 4.2
</TABLE>
-viii-
<PAGE> 11
<TABLE>
<S> <C>
Mortgagee(s) Section 8.1
Move-In Costs Payment Section 42.1
Mutual Determination Section 2.7(B)(3)
New Lease Section 39.3(C)
Newport Remedial Plan Section 36.7
NEWPORT Site Plan Witnesseth Clause
NOC III Urban Renewal Section 2.2(B)(1)
Non-Compatible Use Section 3.7(A)
Non-Structural Alterations Section 4.1(A)(2)
NYSE Holidays Section 24.1(A)
Occupancy Evidence Section 1.3(C)
Offer Space Section 39.1(A)
Offer Space Shares Section 39.1(B)
Office Premises Witnesseth Clause
Operating Costs Section 2.2(B)(8)
Operating Payment Section 2.4(A)
Operating Statement Section 2.2(B)(10)
Parking Commencement Date Section 15.1(A)
Parking Garage Section 15.1(A)
Parking Operator Section 15.1(C)
Parking Payment Excess Section 15.2
Parking Spaces Section 15.1(A)
Parties Section 9.9(A)
Partnership Tenant Section 37.5
Permits Section 4.4(A)
Permitted Depreciated/Amortized Costs Section 2.2(B)(8)
Permitted Tenant Section 12.9
Phase Section 36.1(D)
Phase 1 Base Building Work Schedule 2
Phase 2 Base Building Work Schedule 2
Permitted Use Section 3.1
Plaza Sign Section 19.2(B)
Potential Surrender Notice Section 40.1
POA Section 13.8
POA Member Section 13.8
Premises Witnesseth Clause
Premises Expiration Term Section 39.3(B)
Project Section 3.8
Prevailing Rate Section 12.5(A)(4)
Pro Forma Budget Section 2.2(B)(8)
Project Section 3.8(A)
Property Section 2.2(B)(1)
Qualifying Subtenant Section 12.14(A)
Raised Floor Work Section 4.6(C)
Reimbursable Initial Alteration Work Section 36.9(B)(1)
Related Entity Section 12.9(B)
Related Tenant Section 1.3(D)
Remaining Available Tonnage Section 24.3(E)
Rent Section 2.1(B)
Rent Notice Section 2.7(B)(1)
Renewal Notice Section 1.3(A)
Renewal Term Section 1.3(A)
Renewal Term Commencement Date Section 1.3(A)
</TABLE>
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<TABLE>
<S> <C>
Renewal Term Expiration Date Section 1.3(A)
Rent Commencement Date Section 2.1(A)
Restoration Period Section 10.1(E)(3)
Restricted Uses Section 3.4
Rules and Regulations Section 29.1
Saturday Hours Section 24.1(A)
Security Deposit Section 30.1
Service Interruption Section 25.2(B)
Signage Rights Section 19.2(A)
Structural Elements Section 4.1(A)(2)
Substantial Completion Date Section 36.5(A)
Substantial Completion of Work Notice Section 36.5(A)
Substantially Complete Section 36.5(B)
Substitute Premises Section 35.1(A)
Successor Landlord Section 8.5
Superior Lease Section 4.2
Supplemental Cooling Tower Exhibit G-2
Surrender Date Section 40.1
Surrender Notice Section 40.1
Surrendered Space Section 40.1
Tax Agreement Section 2.2(B)(1)
Tax Payment Section 2.3(A)
Tax Statement Section 2.2(B)(11)
Tax Year Section 2.2(B)(3)
Tenant Preamble: Article 27(D)
Tenant is Then in Occupancy Section 1.31(C)
Tenant Indemnitees Section 9.1(E)
Tenant's Appraiser Section 2.7(B)(2)
Tenant's Assignment/Subletting Notice Section 12.4(A)
Tenant's Broker Section 31.1(C)
Tenant's Delays Section 36.2(B)(3)
Tenant's Determination Section 2.7(B)(2)
Tenant's Election Notice Section 40.1
Tenant's Electric Amount Section 13.1(B)
Tenant's Initial Alterations Section 4.1(A)(1)
Tenant's Ground Floor Operating Share Section 2.2(B)(8)(e)
Tenant's Lobby Sign Section 19.2(A)
Tenant's Notice Section 2.7(B)(2)
Tenant's Offer Notice Section 39.1(C)
Tenant's Operating Share Section 2.2(B)(5)
Tenant's Permitted Electric Demand Section 13.2
Tenant's Property Section 4.6(B)
Tenant's Repair Notice Section 36.5(A)
Tenant's Tax Share Section 2.2(B)(6)
Tenant's Total Electric Amount Section 1.1(C)
Term Section 1.1(A)
Term Delay Section 13.1(B)
Termination Notice Section 16.2(A)
Third Appraiser Section 2.7(B)(3)
Transaction Costs Section 12.11(C)
Unavoidable Delays Section 25.1(B)
UPS Section 38.1(B)
UPS Generator Section 38.1(B)
U.S. Trust Lease Section 40.1
</TABLE>
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<TABLE>
<S> <C>
U.S. Trust Offer Notice Section 40.1
U.S. Trust Statement of Intent Section 40.1
Work Interruption Section 25.2(B)
</TABLE>
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<PAGE> 14
AGREEMENT OF LEASE (the "Lease"), made as of this 31st day of
March, 1999, by and between NEWPORT OFFICE CENTER III COMPANY, LLC., a New
Jersey limited liability company, having an address at 97-77 Queens Boulevard,
Rego Park, New York 11374 ("Landlord") and PAINEWEBBER INCORPORATED, a Delaware
corporation, having an address at 1200 Harbor Boulevard, Weehawken, New Jersey
07087-7691 ("Tenant").
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the entire ninth (9th), tenth (10th), eleventh (11th), twelfth (12th),
fourteenth (14th) (there being no thirteenth (13th) floor) and fifteenth (15th)
floor(s) (collectively, the "Office Premises") and a portion of the ground floor
(the "Ground Floor Premises"), all as shown on the floor plan(s) therefor
annexed hereto and made a part hereof, which area of the Ground Floor Premises
is shown by hatching on the floor plan therefor (the Office Premises and the
Ground Floor Premises are collectively called the "Premises") in the building to
be constructed as hereinafter provided in the NEWPORT development, on that
certain plot or parcel of land (the "Land"), substantially in the location as
shown on the NEWPORT site plan annexed hereto as Exhibit A-1 and made a part
hereof, by the designation "NEWPORT OFFICE CENTER III", to be located at 499
Washington Boulevard and to be initially known as Newport Office Center III,
(the "Building") in the City of Jersey City, County of Hudson, and State of New
Jersey, subject to all liens, encumbrances, easements, restrictions, covenants,
zoning laws and regulations affecting and governing the Premises [provided,
however, that as to such liens and encumbrances Landlord shall comply with its
obligations under Article 8 to provide Tenant with a "Nondisturbance Agreement"
(as defined in Section 8.1(A), as required thereunder and as to such easements,
restrictions and covenants, that Tenant's rights, use and occupancy under this
Lease shall not be materially affected thereby, and as to such zoning laws and
regulations, subject to the provisions of Article 3 and 7 of this Lease], for
(x) the initial term of fifteen (15) years and six (6) months (the "Initial
Term"), to commence on the "Commencement Date" (as defined in Section 1.1 of
this Lease), and to end on the "Fixed Expiration Date" (as defined in Section
1.1), both dates inclusive, and (y) for any "Renewal Term" (as defined in
subsection 1.3(A)(3)), if properly exercised by Tenant in accordance with the
terms and provisions of this Lease (collectively, the "Term"), at the "Rent" (as
defined in Article 2).
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and permitted
assigns, hereby covenant as follows:
ARTICLE 1
TERM; RENEWAL TERM; COMMENCEMENT
AND EXPIRATION DATE; END OF TERM
Section 1.1 (A) The Term shall (1) commence on the later of (a) July 1,
1999, or (b) the date on which Landlord and/or Landlord's contractors shall have
"substantially completed" (as defined in Section 36.8) the performance of the
"Phase 1 Base Building Work" (as described on Schedule 2) (such date being
called the "Commencement Date") and (2) end at noon (a) on the last day of the
sixth (6th) calendar month following the month in which occurs the fifteenth
(15th) anniversary of the Commencement Date, as such expiration date may be
extended pursuant to Section 1.1(C) ("Fixed Expiration Date"), or (b) on such
earlier date upon which the Initial Term may expire or be canceled or terminated
pursuant to any of the terms, conditions or covenants of this Lease or pursuant
to law, or (c) on the expiration date or earlier termination of any Renewal Term
properly exercised by Tenant hereunder (the Fixed Expiration Date, or any
earlier termination date of this Lease, as aforesaid, or the expiration or
earlier termination of any properly exercised Renewal Term, is called the
"Expiration Date").
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<PAGE> 15
(B) (1) On the Commencement Date, Tenant may occupy the Office
Premises and, upon substantial completion of the "Ground Floor Premises Work"
(as defined in Section 36.1(C)), may occupy the Ground Floor Premises, in both
instances to perform the "Tenant's Initial Alterations" (as defined in Section
4.1(A)(1)) provided that Tenant shall in accordance with good construction
practices cause its contractors to coordinate the performance of such Tenant's
Initial Alterations so as not to materially interfere with the performance by
Landlord or its contractor(s) of the Landlord's Work. Accordingly, Tenant,
Landlord and their respective agents, employees and contractors, shall operate
and avoid any interference (at Landlord's reasonable direction) with the other
respective contractors, laborers, material suppliers and other parties
performing completion of Landlord's Work and Tenant's Initial Alterations,
respectively, in order to ensure the timely and efficient completion and the
avoidance of any unnecessary delays.
(2) (a) (i) By no later than August 15, 1999,
Landlord shall make available to Tenant, for Tenant's use in connection
with the performance of the Tenant's Initial Alterations and the
transporting of materials, labor, supplies and equipment with respect
to the performance of such Work, an operational vertical lift located
within the Building and serving the floors constituting the Premises
(the "Interior Vertical Lift") which Interior Vertical Lift may be a
temporary freight elevator or lift or one of the permanent freight
elevators to be installed to service the Building (but if a temporary
lift shall be used, it shall function substantially equivalent to the
permanent lift.) Tenant acknowledges that a temporary lift will require
operation by an operator to be supplied by Tenant, at Tenant's sole
cost and expense, and which operator shall be subject to the provisions
of Section 4.4(C).
(ii) Tenant shall have the exclusive use of
the Interior Vertical Lift (whether the same is a temporary lift or one
of the permanent freight elevators) until such time as both of the
permanent freight elevators servicing the Building (and the Premises)
are operational. At such time as both permanent freight elevators are
operational, Tenant may continue to use the Interior Vertical Lift
(provided, however, the same is still in operation and has not been
dismantled by Landlord, if the same is a temporary lift) on a
non-exclusive basis with Landlord and other tenants in the Building and
their respective contractors, or, at Tenant's option, the Interior
Vertical Lift shall be removed. If the Interior Vertical Lift is no
longer in operation, Tenant shall use the permanent freight elevators
for the transporting of materials supplies and equipment with respect
to the performance of Tenant's Initial Alterations subject, however, to
the provisions of subsection 24.1(B)(5)(b) of this Lease.
(iii) During such time as Tenant shall have
the exclusive use of the Interior Vertical Lift, Landlord hereby agrees
that (x) other Building tenants shall not be allowed to use the
Interior Vertical Lift, and (y) Landlord shall not use the Interior
Vertical Lift, in each case during Tenant's Initial Alterations or
move-in to the Premises.
(b) Until the provision by Landlord of the
aforesaid Interior Vertical Lift, Tenant shall, commencing on the
Commencement Date, have the non-exclusive use of the temporary Building
hoist located on the outside of the Building for the transporting of
its materials, labor, supplies and equipment for the performance of
Tenant's Initial Alterations, such use of the outdoor hoist to be in
conjunction with the use of the same by Landlord and other tenants in
the Building and their respective agents, employees and contractors
performing Landlord's Work and such tenant's improvement work in the
Building, such non-exclusive use to be subject to Landlord's reasonable
control and direction so as to avoid unnecessary interference with
Landlord's and Tenant's and such other tenant's respective use of the
same.
(c) If Landlord fails to provide the Interior
Vertical Lift to Tenant by August 15, 1999, Landlord hereby agrees that
for each day, from time to time,
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from and after August 15, 1999, that Tenant is performing the Tenant's
Initial Alterations or Tenant is ready, willing and able to perform
Tenant's Initial Alterations, and Landlord fails to provide the
Interior Vertical Lift for Tenant's use in performing such Alterations
in accordance herewith, Tenant shall receive a day-for-day abatement of
Fixed Rent first to be paid hereunder until the Interior Vertical Lift
is furnished to Tenant for its use in accordance herewith.
(d) Tenant may, upon thirty (30) days prior written notice
given to Landlord, request that Landlord make available to Tenant for
use by Tenant, its agents, employees and contractors, solely for
transporting such personnel and contractors only between the floors of
the Premises (and in no event from the Building's lobby to the
Premises) in connection with the performance of Tenant's Initial
Alterations and the moving into the Premises of Tenant's furniture,
equipment and the like, one (1) passenger elevator serving the
Premises; provided, however, that Tenant's use of such passenger
elevator shall be on the following terms and conditions:
(i) Tenant's agents, employees and contractors may
not carry on passenger elevator any heavy, bulky or large
equipment, supplies or materials;
(ii) Tenant shall, at Tenant's sole cost and expense,
provide all necessary protective covering or padding for the
elevator cab's walls, floor and ceiling so that the interior
of the elevator cab is not damaged, marred or scratched, or in
the alternative, Landlord will, at Tenant's cost and expense
provide such protective covering and padding for the elevator
cab; it being agreed and understood that Tenant shall
reimburse Landlord for all costs and expenses of repairing or
restoring the passenger elevator cab as a result of any
damage, marring or scratching of the interior thereof caused
by the use of the same as provided in this subsection (ii);
(iii) Landlord shall have the right, at its option,
after receipt of Tenant's aforesaid notice, to convert, at
Tenant's cost and expense, an existing passenger elevator to a
freight elevator in order to accommodate Tenant's request for
the use of such passenger elevator for the aforesaid purposes;
it being agreed and understood that, in such event, Landlord
shall only be required to provide to Tenant five (5)
operational passenger elevators on the "substantial
completion" of the "Phase 2 Base Building Work" (as such terms
are defined in Article 36), as provided on Schedule 2 to this
Lease and Landlord shall provide the sixth (6th) passenger
elevator (which has been converted to freight elevator use, as
aforesaid) within sixty (60) days after substantial completion
of the Phase 2 Base Building Work; and
(iv) Tenant shall pay any fees, costs or expenses regarding
its use of the passenger elevator and any damages thereto, as
aforesaid, as "Additional Rent" (as such term is defined in
Section 2.1(B) of this Lease), as provided in Section 2.1(C).
(3) (a) If Landlord and/or its contractor(s) fail to
"substantially complete" the "Landlord's Work" (as defined in Section
36.1(C)) by May 1, 2000 [except if due to "Unavoidable Delays" (as
defined in Section 25.1(B) below)], and/or "Tenant Delays" (as defined
in subsection 1.1(B)(3)(e) below) [(such May 1, 2000 date to be
extended on a day for day basis by reason of such delays, except to the
extent that Unavoidable Delays shall exceed ninety (90) days of delay,
and provided further that Landlord shall have notified Tenant thereof
within ten (10) days after the beginning and ending of each day of
Unavoidable Delay or Tenant Delay (the "Adios Date")], Tenant
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<PAGE> 17
shall have the right, at its option, to terminate this Lease by notice
to Landlord given on or before twenty (20 ) "Business Days" (as defined
in Section 24.1(A)) after the Adios Date, whereupon this Lease shall
terminate, be deemed null and void and of no further force and effect
as of the twenty-first (21st) Business Day following the date of such
termination notice, as if such date were the Expiration Date of this
Lease. If Tenant fails to send such termination notice to Landlord on
or before the twenty (20th) Business Day after the Adios Date, TIME
BEING OF THE ESSENCE, this Lease shall continue in full force and
effect binding upon the parties hereto.
(b) In the event that Tenant elects to
terminate this Lease, as aforesaid, Landlord shall reimburse Tenant for
the amount of any "Extra Costs" (as defined below) incurred by Tenant.
(c) Promptly following Tenant's termination
of this Lease, as aforesaid, Tenant may forward to Landlord a statement
of the Extra Costs which statement shall set forth in reasonable detail
the amount and calculations thereof. Provided Landlord does not dispute
Tenant's amount and calculation of the Extra Costs, as hereinbelow
provided, Landlord shall pay the Extra Costs amount to Tenant within
thirty (30) days after receipt of the statement of Extra Costs by
Tenant. In the event the Extra Costs are not paid within such thirty
(30) day period, the amount due shall bear interest from the date such
payment is due to the date of actual payment at the "Interest Rate" (as
defined in Section 2.1(G)). Tenant hereby agrees that it shall, in good
faith, use all commercially reasonable efforts to minimize Extra Costs.
(d) In the event that Landlord disputes
Tenant's amount and calculation of the Extra Costs, then either party
may resort to "Expedited Arbitration" as provided in Section 34.2 by
notice given to the other party within fifteen (15) Business Days after
either (i) in the case of Landlord, Tenant's statement of Extra Costs
shall have been forwarded to Landlord or (ii) in the case of Tenant,
Landlord shall notify Tenant that it disputes the amount of the Extra
Costs. The time by which Landlord must pay the Extra Costs as set forth
above, shall toll pending the resolution of such dispute by arbitration
as hereinafter provided. In the event of an arbitration, Tenant agrees
that Landlord and/or its representatives, agents and employees shall
have the right of reasonable access (for a reasonable period not to
exceed thirty (30) days after Landlord's notice of dispute shall have
been given) to review Tenant's books and records applicable to Tenant's
Initial Alterations costs, including all labor costs, for the purpose
of verifying Tenant's calculation and amount of the Extra Costs.
Landlord on behalf of itself and such permittees, agrees to keep any
and all information obtained thereby strictly confidential (except to
the extent relevant to any arbitration proceeding as aforesaid). Any
amount of Extra Costs not in dispute shall be paid within the 30-day
period as provided in subsection 1.1(B)(3)(c) above. At such time as a
decision is rendered in the arbitration proceeding, Landlord shall pay
the amount determined within fifteen (15) Business Days thereafter. In
the event such Extra Costs are not paid within such 15-Business Day
period, the amount due shall bear interest at the Interest Rate from
the date such payment is due to the date of actual payment.
(e) For purposes of this Subsection
1.1(B)(3), the following terms shall have the meanings ascribed to them
below:
(i) "Extra Costs" shall mean any Rent prepaid by
Tenant and the following costs incurred by Tenant in
preparation of the commencement of Tenant's Initial
Alterations: (A) storage charges for materials; (B)
reimbursement of long lead items no longer usable by Tenant;
(C) charges by Tenant's contractors, subcontractors, or
suppliers for restocking materials or other items; and (D)
cancellation fees under any contract for construction work or
materials and (E) other reasonable out-of-pocket expenses paid
to architects, engineers and consultants not to exceed in the
aggregate One Million ($1,000,000) Dollars; and
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<PAGE> 18
(ii) "Tenant Delays" shall mean any circumstance or
event caused by or resulting from the actions, inactions or
other conduct, whether negligent or intentional, of Tenant
and/or its contractors affecting the timely performance and
timely "substantial completion" by Landlord of the Landlord's
Work by May 1, 2000, and not arising from (A) Landlord's own
failure to "substantially complete" the Landlord's Work by May
1, 2000, or (B) Unavoidable Delays.
(f) Except as expressly set forth in this
Section 1.1, Tenant hereby agrees that Tenant shall have no right to
terminate this Lease, or to claim any fees, sums or other payments from
Landlord, or to institute any action of claim against Owner for
damages, as a result of Landlord's failure to meet any of the preceding
terms and conditions of this Section 1.1. The foregoing sentence shall
not be deemed to preclude Tenant from asserting against Landlord a
claim for the day-for-day abatement of Fixed Rent as set forth in
Section 4.10 for Landlord's failure to comply with the provisions of
said Section.
(C) If "substantial completion" of the "Landlord's Work" (as
defined in Section 36.1(C) of this Lease) as to the Office Premises is delayed
beyond November 1, 1999 (other than due to or resulting from Tenant Delays (the
"Term Delay"), the Fixed Expiration Date and the initial Term of this Lease
shall be extended by the number of days contained in the Term Delay.
(D) If the Commencement Date has not occurred within four (4)
years from the date this Lease has been executed and delivered by the parties
hereto, this Lease shall automatically terminate without further action by
Landlord or Tenant, whereupon the parties hereto shall be freed from and
relieved of all further obligations arising under this Lease.
(E) (1) After the determination of the Commencement Date,
Landlord and Tenant, upon demand of either party, shall enter into a written
agreement setting forth the Commencement Date and the Fixed Expiration Date, but
the failure to execute such an agreement shall not affect the validity of the
Commencement Date or the Fixed Expiration Date as finally determined.
(2) Further, if the Fixed Expiration Date or the Term is
extended as provided in Section 1.1(C) above, Landlord and Tenant, upon the
demand of either party shall enter into a written agreement setting forth the
extended Fixed Expiration Date and the Initial Term of this Lease, but the
failure to execute such agreement shall not affect the validity of the extended
Fixed Expiration Date and Initial Term as finally determined.
Section 1.2 (A) On or before 12:00 noon on the Expiration Date, Tenant
shall quit and surrender to Landlord the Premises, broom clean, in good order
and condition, ordinary wear and damage by fire or other casualty excepted, and
in the manner and condition as required by this Lease. and Tenant shall remove
all "Tenant's Property" (as defined in Section 4.6 (B)) and specifically comply
with the requirements of Sections 4.6 with respect to the removal of
"Alterations"(as defined in Article 4) from the Premises. Tenant's obligation to
observe or perform this covenant shall survive the Expiration Date. In addition,
Landlord shall have the right, at its option, to treat any failure by Tenant to
comply with this covenant as a form of holding over and in that event, Landlord
shall be entitled to all of its rights and remedies hereunder with respect to a
holdover by Tenant.
(B) Tenant acknowledges that possession of the Premises must
be surrendered to Landlord on the Expiration Date in the condition required
hereunder. Tenant further acknowledges, recognizes and agrees that the damage to
Landlord resulting from any failure by Tenant to timely surrender possession of
the Premises on the Expiration Date, as aforesaid, will be substantial, will
exceed the amount of the monthly installments of the Rent theretofore payable
hereunder, and will be impossible to accurately measure. Tenant therefore agrees
that if possession of the Premises is not surrendered to Landlord within
twenty-four (24) hours after the Expiration Date in full compliance with the
terms of this Lease, then in addition to any and all other rights or remedies
Landlord may have hereunder, in equity or at law, Tenant shall pay to
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Landlord for each month and for each portion of any month during which Tenant
holds over in the Premises after the Fixed Expiration Date, a sum equal to one
and one-half (1 1/2) times the aggregate of that portion of the Fixed Rent and
Additional Rent which was payable under this Lease during the last month of the
Term. The parties agree that such amount is a reasonable forecast of just
compensation for the damage to Landlord that will result from such failure to
timely surrender possession of the Premises and the parties further agree that
the damage to Landlord that will result from such failure is one that is
incapable or very difficult to estimate, and that the aforesaid amount is
specifically acknowledged and agreed to be fair and reasonable, and not a
penalty.
(C) Nothing herein contained shall be deemed to permit Tenant
to retain possession of the Premises after the Expiration Date, and no
acceptance by Landlord of payments from Tenant after the Expiration Date shall
be deemed to be other than on account of the amount to be paid by Tenant in
accordance with the provisions of this Section 1.2. The acceptance of any Rent
paid by Tenant pursuant to this Section 1.2 shall not preclude Landlord from
commencing and prosecuting a holdover or summary eviction proceeding. It is
further stipulated and agreed that if Landlord shall, at any time after the
Expiration Date, proceed to remove Tenant from the Premises as a holdover, the
Rent for the use and occupancy of the Premises during any holdover period shall
be calculated in the manner as set forth above.
(D) Tenant expressly waives, for itself and for any person
claiming by, through or under Tenant, any rights which Tenant or any such person
may have under the provisions of any law, ordinance or regulation of any "Legal
Authority" (as defined in Section 7.1) then in force permitting or mandating the
issuance of a "stay" in connection with any holdover summary proceedings which
Landlord may institute to enforce the foregoing provisions of this Section 1.2.
If Tenant shall holdover or remain in possession of any portion of the Premises
beyond the Expiration Date, Tenant shall be subject to summary proceedings and
all damages related thereto, but not be subject to, and Landlord hereby waives
any losses and damages arising out of any lost opportunities (and/or new
leases), including, but not limited to, claims by, or damages to, any succeeding
tenant.
(E) All damages to Landlord by reason of such holding over by
Tenant may be the subject of a separate action and need not be asserted by
Landlord in any summary proceedings against Tenant. Tenant's obligations under
this Section 1.2 shall survive the Expiration Date.
Section 1.3 (A) (1) Tenant shall have the option (the "First Renewal
Option") to extend the Initial Term for an additional five (5) year period (the
"First Renewal Term"), which First Renewal Term shall commence on the date
immediately succeeding the Fixed Expiration Date (the "First Renewal Term
Commencement Date") and end on the fifth (5th) anniversary of the Fixed
Expiration Date (the "First Renewal Term Expiration Date"), provided, however,
that: (a) this Lease shall not have been previously terminated; (b) that no
"Event of Default" (as defined in Section 16.1) of a monetary nature or of a
material non-monetary nature shall then have occurred and be continuing on the
date Tenant gives Landlord written notice (the "First Renewal Notice") of
Tenant's election to exercise the First Renewal Option; (c) the Renewal must be
exercised for all of the Premises or not less than two (2) full floor increments
of the Office Premises (except if Tenant shall then lease less than all the
rentable area on a floor, Tenant may exercise the Renewal Option for not less
than two (2) full floors of the Office Premises plus such partial floor), which
full floor increments being renewed, must be contiguous and must be either the
upper-most or bottom-most floors of the Office Premises, and may also include
the Ground Floor Premises. The First Renewal Option may be exercised by Tenant
no earlier than twenty-four (24) months and not later than eighteen (18) months
prior to the Fixed Expiration Date, TIME BEING OF THE ESSENCE with respect to
the giving of the First Renewal Notice.
(2) Tenant shall have a further and final option (the
"Second Renewal Option") to extend the Term for an additional and final
five (5) year period (the "Second Renewal Term"), which Second Renewal
Term shall commence on the date immediately succeeding the First
Renewal Term Expiration Date (the "Second Renewal Term Commencement
Date") and end on the fifth (5th) anniversary of the First Renewal Term
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Expiration Date (the "Second Renewal Term Expiration Date"), provided,
however, that: (a) Tenant shall have exercised the First Renewal Option
for the First Renewal Term; (b) this Lease shall not have been
previously terminated; (c) that no Event of Default of a monetary
nature or of a material non-monetary nature shall then have occurred
and be continuing on the date Tenant gives Landlord written notice (the
"Second Renewal Notice") of Tenant's election to exercise the Second
Renewal Option; (d) the Renewal must be exercised for all of the
Premises or not less than two (2) full floor increments of the Office
Premises (except if Tenant shall then Lease less than all the rentable
area on a floor, Tenant may exercise the Renewal Option for not less
than two (2) full floors of the Office Premises plus such partial
floor); which full floor increments being renewed, must be contiguous
and must be either the upper-most or bottom-most floors of the Office
Premises and may also include the Ground Floor Premises. The Second
Renewal Option may be exercised by Tenant no earlier than twenty-four
(24) months and not later than eighteen (18) months prior to the First
Renewal Term Expiration Date, TIME BEING OF THE ESSENCE with respect to
the giving of the Second Renewal Notice. Tenant shall have no further
right or option to extend the then Term of this Lease.
(3) For purposes of this Section 1.3 and this Lease:
(a) the First Renewal Option and the Second Renewal Option are each
individually called a "Renewal Option" and are collectively called the
"Renewal Options"; (b) the First Renewal Term and the Second Renewal
Term are each individually called a "Renewal Term" and are collectively
called the "Renewal Terms"; (c) the First Renewal Term Commencement
Date and the Second Renewal Term Commencement Date are each
individually called a "Renewal Term Commencement Date" and are
collectively called the "Renewal Term Commencement Dates"; and (d) the
First Renewal Term Expiration Date and the Second Renewal Term
Expiration Date are each individually called a "Renewal Term Expiration
Date" and are collectively called the "Renewal Term Expiration Dates."
(B) In the event that Tenant timely and validly exercises a
Renewal Option for a Renewal Term as hereinafter provided, the Term shall
automatically be deemed to be extended to, and include the particular Renewal
Term so exercised, and the particular Renewal Term Expiration Date shall be
deemed to be the Fixed Expiration Date of this Lease for all purposes hereof.
(C) (1) Tenant covenants and agrees that with respect to its
exercise of a Renewal Option as set forth in this Section 1.3, Tenant's exercise
of such Renewal Option shall not be deemed to be valid and binding upon Landlord
unless (a) immediately prior to and immediately after the commencement of the
Renewal Term in question "Tenant is then in occupancy" (as such term is defined
below) of at least two (2) full floors of the Office Premises or 84,000 rentable
square feet of the Premises, and (b) Tenant shall have furnished Landlord the
"Occupancy Evidence" (as such term is defined and more particularly described in
subsection 1.3(C)(3) below).
(2) For purposes of this Lease, the term "Tenant is
then in occupancy" as to all or a portion of the Premises shall mean
that this Lease then covers, and at the time, Tenant is paying the Rent
for and is not receiving any rental, fees, sums or other consideration
from any subtenant or other occupant (other than a Related Entity of
Tenant or a User (as defined in Section 3.1(C) as to the portion of the
Premises in question, notwithstanding that such portion of the Premises
in question may not be physically occupied by Tenant and its employees
or may be left vacant.
(3) (a) Tenant shall be required, as part of its
exercise of a Renewal Option under this Section 1.3, to provide to
Landlord reasonably satisfactory evidence that Tenant is then in
occupancy of the required portion of the Premises, as set forth in
subsection (1) above, both immediately prior to and after the
commencement of the Renewal Term in question (the "Occupancy
Evidence").
(b) The Occupancy Evidence shall include a
breakdown, by floor
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of the Premises, showing the occupancy thereof (which may include the
use of hatched floor plans for illustration) by Tenant, any Related
Entity, subtenant and User and/or any portion thereof which is vacant,
the calculation by Tenant, based on the foregoing, as to the number of
floors in the Office Premises or the number of rentable square feet
contained in the Premises, respectively, as to which Tenant is then in
occupancy for purposes of complying with this Section 1.3(C) regarding
Tenant's exercise of the particular Renewal Option in question, a
listing of sublease or other occupancy agreements of the Premises and
their expiration or termination dates, and such other evidence with
respect to the foregoing as shall establish Tenant's compliance with
the foregoing.
(D) (1) Notwithstanding anything to the contrary contained in
this Lease and subject to the provisions of subsection 1.1(D)(2) below, the term
"Tenant" when used in this Section 1.3 shall be deemed to refer to and mean only
a "Related Tenant", which term shall mean the Tenant named in this Lease,
PAINEWEBBER INCORPORATED, or a "Permitted Tenant" (as defined in Section
12.9(B)) provided, however, that if the Permitted Tenant is (or its predecessor
in interest was) a Related Entity, such Related Entity must have been a "50%
Related Entity", which term shall mean an affiliate corporation or other
business entity "controlling", "controlled by" or "under common control with"
Tenant but in the definition of the terms "controlling", "controlled by" or
"under common control with" in Section 12.9(E), the figure twenty (20%) percent
shall be deemed to be fifty (50%) percent, and shall not be deemed to include
any other assignee or other successor-in-interest (immediate or remote) of
Tenant; it being agreed and understood that the Renewal Options and the other
rights set forth in this Section 1.3 have been granted only to Tenant named
herein and/or a Related Tenant for its sole and exclusive benefit, for so long
as such entity is the holder of Tenant's estate and interest granted by this
Lease, and that neither the Renewal Options nor any other rights set forth in
this Section 1.3 may be transferred or conveyed to any other person or entity.
(2) In addition to the foregoing provisions of this
Section 1.3(D), Tenant named herein or a Related Tenant shall have the right to
assign its right and option to exercise a Renewal Option hereunder to an
assignee or any other successor-in-interest which is not a Related Tenant
(whether immediate or remote) (x) approved by Landlord as part of, or in
connection with an assignment of this Lease, as provided and set forth in
Section 12.5 of this Lease, or (y) if an approval to an assignment is not
required pursuant to Section 12.9 because the proposed assignee is a Related
Entity, but the Related Entity is not a 50% Related Entity, then Tenant may
request approval of the assignment of the Renewal Option to such non-50% Related
Entity, which approval shall be in accordance with the procedures and subject to
the terms of Section 12.5; provided, however, that: (a) such assignee or other
successor-in-interest shall only have the right to exercise one (1) Renewal
Option for one (1) Renewal Term (i.e. if such assignment or transfer occurs
during the Initial Term, the assignee or other successor-in-interest may only
renew the Term of this Lease for the First Renewal Term, and shall have no right
to renew the Term of this Lease for the Second Renewal Term, and if such
assignment or transfer occurs during the First Renewal Term, the assignee or
other successor-in-interest shall have the right to renew the then Term of this
Lease for the Second Renewal Term; (b) the Fixed Rent for the Premises during
the Renewal Term shall be calculated and determined as provided in subsection
2.7(A)(y), rather than as provided in 2.7(A)(x) of this Lease; and (c) the term
"Tenant is then in occupancy", as used in Section 1.3(C) shall mean, with
respect to such assignee or other successor-in-interest, that such entity is
then in actual, physical occupancy of the required portions of the Premises.
(E) If Tenant exercises a Renewal Option, the Renewal Term for
such Renewal Option in question shall be upon the same terms, covenants and
conditions as those contained in this Lease, except that: (a) the Fixed Rent
shall be deemed to mean the Fixed Rent as determined pursuant to Section 2.7
below; (b) Tenant shall not be entitled to any work allowance or credit or any
waiver of Fixed Rent, Additional Rent or any other rent concession during the
Renewal Term in question; provided, however, that at the commencement of the
First Renewal Term, Landlord shall recover the floors and cover or repaint the
walls of the Premises in a Building standard manner, with materials equivalent
in quality and standard to those which, at the commencement of the First Renewal
Term, are then being installed or used in the Building; (c) that the Base Tax
Amount, for purposes of calculating increases in Taxes, and the Base Operating
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<PAGE> 22
Costs Amount, for the purposes of calculating increases in Operating Costs, and
the Base Ground Floor Operating Costs Amount for the purpose of calculating
increases in the Ground Floor Operating Costs, respectively, for the First
Renewal Term, and the Second Renewal Term, shall change to and be the amounts of
Taxes and Operating Costs and Ground Floor Operating Costs, respectively, as set
forth in Section 2.7 (A) (1) hereof; and (d) Tenant shall have no further right
to renew the Term of this Lease beyond the Second Renewal Term.
ARTICLE 2
FIXED RENT; ADDITIONAL RENT; ADDITIONAL CHARGES
Section 2.1 (A) Tenant shall pay rent for the Premises provided in this
Lease, at the annual fixed rental amounts (the "Fixed Rent") as set forth on
Exhibit B annexed hereto and made a part hereof. Tenant shall pay Fixed Rent in
equal monthly installments in advance on the first day of each month during the
Term commencing on the Commencement Date (the "Rent Commencement Date"), at the
office of Landlord or such other place as Landlord may designate, without any
set-off, offset, abatement or deduction whatsoever, other than as expressly
provided in this Lease, except that Tenant shall pay the first monthly
installment(s) of Fixed Rent on the execution hereof (unless this Lease is a
renewal). If the Rent Commencement Date occurs on a day other than the first day
of a calendar month, the Fixed Rent for such calendar month shall be pro rated
based upon a 30-day month and any balance of the first month's Fixed Rent
theretofore paid shall be credited against the next monthly installment of Fixed
Rent. Tenant shall also pay other sums under this Lease, in addition to Fixed
Rent, in the manner as hereinafter provided.
(B) All sums and charges other than Fixed Rent due and payable
by Tenant to Landlord under this Lease including, without limitation,
"Additional Charges" (as defined in Section 2.2), electrical costs under Article
13 and late charges assessed pursuant to this Lease are called "additional rent"
or "Additional Rent". Fixed Rent and Additional Rent are collectively called
"rent" or "Rent". The failure of Tenant to make any payment of Additional Rent
in this Lease shall entitle Landlord to all rights and remedies provided
hereunder for the non-payment of Fixed Rent.
(C) (1) All payments of Fixed Rent and the "Estimated Tenant's
Monthly Electric Amount" (as defined in Section 13.1(D)), the "Estimated
Tenant's Monthly Water Amount" (as defined in Section 24.1(B)(7) and the
"Estimated Tenant's Monthly Gas Amount" (as defined in Section 24.1(B)(12) shall
be made to Landlord on the first day of each month during the Term commencing on
the Rent Commencement Date without notice or demand. All payments of recurring
items of Additional Rent (for regular monthly Additional Charges and the parking
fees for the "Parking Spaces" (as defined in Article 15)), shall be made to
Landlord within twenty (20) days after delivery of a notice or demand therefor.
Notwithstanding anything to the contrary contained in this Lease, payment of all
non-recurring items of Additional Rent, shall be made to Landlord within thirty
(30) days after delivery of a notice or demand therefor.
(2) All Rent payments shall be made in lawful money of the
United States of America, which shall be legal tender in payment of any debts
and dues public and private, at the time of payment by good and sufficient check
subject to collection and drawn on a New York City or New Jersey bank or trust
company which is a member of the New York Clearinghouse Association.
(D) In the event any check issued by Tenant is dishonored for
any reason, Tenant shall submit a replacement check within five (5) Business
Days following notice from Landlord that the first check was dishonored. If
Tenant fails to submit a replacement check within the period of time set forth
above, such failure shall be deemed an Event of Default hereunder. Any notice
from Landlord pursuant to this paragraph shall not count towards the number of
rent notices Tenant shall be entitled to receive from Landlord in any twelve
(12) month period, as more fully provided in Section 16.1(A) hereof.
(E) No payment by Tenant or receipt or acceptance by Landlord
of a lesser
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<PAGE> 23
amount than the correct amount of Fixed Rent or Additional Rent shall be deemed
to be other than a payment on account, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any other remedy
in this Lease or at law provided. Tenant's obligation to pay Fixed Rent,
Additional Rent and any other charges accruing hereunder shall survive the
Expiration Date, to the extent necessary to carry out the provisions of this
Lease with respect to Tenant's obligations accrued prior to the Expiration Date.
(F) If at the commencement of, or at any time or times during
the Term, the Fixed Rent, additional rent or any other charge reserved in this
Lease shall not be fully collectible by reason of any "Legal Requirement" (as
defined in Section 7.1), Tenant shall enter into such agreements and take such
other steps (without additional expense to Tenant) as Landlord may request and
as may be legally permissible to permit Landlord to collect the maximum rents
which may from time to time during the continuance of such Legal Requirement be
legally permissible (and not in excess of the Rent reserved under this Lease).
Upon the termination of such Legal Requirement, (1) the Fixed Rent, additional
rent and all other charges shall become and thereafter be payable hereunder in
accordance with the amounts reserved in this Lease for the periods following
such termination, if such termination is prior to the Fixed Expiration Date, and
(2) Tenant shall pay to Landlord, if legally permissible, an amount equal to (a)
the Fixed Rent, additional rent and any other charges which would have been paid
pursuant to this Lease but for such Legal Requirement, less (b) the rents paid
by Tenant to Landlord during the period or periods such Legal Requirement was in
effect.
(G) Any payment of Fixed Rent or Additional Rent due from
Tenant to Landlord not paid within ten (10) days after the date herein specified
to be paid shall bear interest from the date such payment is due to the date of
actual payment at the rate of two and one-half (2 1/2) percentage points above
the daily Prime Rate or Base Rate published by the Wall Street Journal from time
to time, or the highest lawful rate of interest permitted by the laws of the
State of New Jersey, whichever rate of interest is lower (the "Interest Rate").
Notwithstanding the interest charge, non-payment of any Fixed Rent, additional
rent or other charges due hereunder shall constitute a default of this Lease.
Section 2.2 (A) Tenant shall also pay to Landlord, during the Term, as
additional rent, "Tax Payments" and "Operating Payments" (collectively, the
"Additional Charges") as defined and provided in Section 2.3 and Section 2.4
hereof.
(B) For purposes of Section 2.3 and 2.4, the following terms
shall have the meanings set forth below:
(1) (a) "Taxes" shall mean the aggregate amount of
real estate taxes and any general or special assessments (exclusive of
penalties and interest thereon) imposed upon the Building and other
improvements located upon the Land (the Building and Land are
collectively referred to as the "Property") including without
limitation, (i) any City, Town, County, Village, School or other local
tax, all "Annual Service Charges" (as defined in Section 1.2(ii) of the
Tax Agreement) payable under the provisions of the Financial Agreement
dated May 22, 1998 by and between N.O.C. III Urban Renewal Limited
Liability Company ("NOC III Urban Renewal") and the City of Jersey
City, as the same may have been or may hereafter be amended, provided,
however, that no such future amendment shall increase Tenant's Tax
Payment hereunder during the existence of such Financial Agreement),
entered into pursuant to the Long Term Tax Exemption Law, as amended
and supplemented (N.J.S.A. 40A:20-1 et seq.), Executive Order S-039
relating to long term tax exemption and Ordinance 98-038, adopted April
22, 1998 (the "Tax Agreement"); it being agreed and understood that for
the term of the Tax Agreement (as provided in Article III of the Tax
Agreement), Taxes shall be based on the "Annual Service Charge" (as
defined in Section 1.2(ii) Tax Agreement) rather than other Taxes
calculated and determined in accordance with clause (i) of this
subparagraph (a), and that the Annual Service Charges which shall
constitute Taxes under the Tax Agreement during
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<PAGE> 24
such period, is as set forth in Section 4.1 of the Tax Agreement and
shall be increased during the term of the Tax Agreement as provided in
the Tax Agreement; and (ii) any taxes or assessments levied after the
date of this Lease in whole or in part for public benefits to the
Property; without taking into account any discount that Landlord may
receive by virtue of any early payment of Taxes; provided, however,
that if because of any change in the taxation of real estate, any other
tax or assessment, however denominated (including, without limitation,
any franchise, income, profit, sales, use, occupancy, gross receipts or
rental tax), is imposed upon Landlord or the owner of the Property, or
the occupancy, rents or income therefrom, whether in substitution for
or in addition to any of the foregoing Taxes, such other tax or
assessment shall be deemed part of Taxes computed as if Landlord's sole
asset were the Property (provided that during the term of the Tax
Agreement, no such changes shall cause Tenant's Tax Payment to be in
excess of that as would have been in effect solely under the Tax
Agreement). With respect to any "Tax Year" (as defined below), all
expenses, including, without limitation, reasonable attorneys' fees,
court costs and disbursements and experts' and other witnesses' fees
incurred in contesting the validity or amount of any Taxes or the
"Assessed Valuation" (as defined below) or in obtaining a refund of
Taxes, shall be considered as part of Taxes for such Tax Year. Anything
contained herein to the contrary notwithstanding, Taxes shall not be
deemed to include (A) any taxes on Landlord's income, (B) franchise
taxes, (C) estate or inheritance taxes, (D) gift taxes, (E) transfer
taxes, (F) excise taxes, (G) profit taxes, (H) capital levies, (I) late
payment charges and penalties, unless caused by Tenant, and (J) special
assessments levied against property other than real estate imposed on
Landlord, unless such taxes are levied, assessed or imposed in lieu of
or as a substitute for the whole or any part of the taxes, assessments,
levies or impositions which now constitute Taxes computed as if
Landlord's sole asset were the Property and subject to the above
proviso.
(b) Notwithstanding anything above to the contrary, Taxes
shall not include any real estate tax increases imposed solely because
of a reassessment of the Assessed Valuation caused by a transfer of the
fee interest in the Property, as evidenced by the tax assessor's
worksheets or other similar documentation.
(c) Further, notwithstanding anything to the contrary
contained herein, Landlord hereby agrees that, in the event that as the
direct result of: (i) the failure of NOC III Urban Renewal or its
successors or assigns to file annual auditor's reports, as required
under the Tax Agreement; (ii) a prohibited transfer by NOC III Urban
Renewal or its successors or assigns (as set forth in Article VIII of
the Financial Agreement); (iii) the default by NOC III Urban Renewal or
its successors or assigns in the making of any payment due under the
Tax Agreement after any applicable notice and grace period for such
payment; (iv) the filing of materially false and misleading information
by NOC III Urban Renewal or Landlord in connection with its application
and ancillary filings to obtain the Tax Agreement; or (v) any breach by
NOC III Urban Renewal of its obligations to be observed or performed
under the Tax Agreement, or (vi) any other act or event not caused by
through or under Tenant, respectively, the Tax Agreement or the Annual
Service Charge is either terminated or is not put into effect, then,
from and after the first day of the month following the issuance of a
Certificate of Occupancy for the Building and until the end of the
period described in Article III of the Tax Agreement, Taxes shall be
computed as if (x) the Building were exempt from taxation, and (y) the
Annual Service Charge were in effect, computed in accordance with the
Tax Agreement. During the term of the Tax Agreement, Tenant shall
neither perform any act nor fail to perform any act which will
invalidate the Tax Agreement in whole or part.
(d) Landlord and Tenant further agree as follows with respect
to Taxes:
(i) Tenant shall not be responsible for any increase
in Taxes which results solely from the creation of additional
rentable area on the Property or from improvements or
alterations made by Landlord or other tenants, unless the
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Tenant's Tax Share is appropriately and proportionally
adjusted to reflect such additional rentable area or
improvements or alterations;
(ii) Landlord, Landlord's sole cost and expense,
shall take commercially reasonable steps to contest an
adjustment of the Annual Service Charge resulting from an
audit by the City of Jersey City of the "Total Project Cost"
(as defined in the Tax Agreement) provided that Landlord has,
in fact, a good faith dispute with the City of New Jersey as
to the determination reached by the City with respect to the
credit, and the Tax assessment in later Tax Years (i.e., after
the expiration of the term of the Tax Agreement), and in good
faith to prosecute such contest to completion;
(iii) Landlord represents and agrees that the tax
parcel for the Land and the Building as to which Taxes are
assessed for purposes of this Lease shall contain no building
other than the Building; provided, however, that if Landlord
constructs an additional building(s) on the Land, the
provisions of subdivision (i) above shall apply with respect
to approximately and proportionally adjusting Tenant's Tax
Share; and
(iv) Landlord represents and warrants to Tenant that
all existing public improvements on and forming a part of the
Property have been or will be paid for by Landlord, and
Landlord has, to the best of its knowledge, no knowledge of
any proposed public improvements which might result in a
future levy or assessment, and has received no notice of the
same; and in the event during the Term of this Lease, any
public improvements or betterments are made which would impose
a special assessment against the Property, and provided that
if any statute or ordinance relating to assessment allows for
installment payments, Landlord shall elect to pay the
assessment in installments and Tenant shall only be
responsible for its pro rata share of installment payments
paid by Landlord during the Term of this Lease, together with
any interest charged as a result of having elected to make
such payments in installments.
(2) "Assessed Valuation" shall mean the amount for
which the Property is assessed for the purposes of the imposition of
Taxes, pursuant to applicable law, statute, ordinance or other
legislation of any other legal authority.
(3) "Tax Year" shall mean the twelve (12) month
period of January 1 through December 31 (or such other period as may
hereafter be duly adopted by the City of Jersey City or such other
legal authority as its fiscal year for real estate tax purposes), any
portion of which occurs during the Term.
(4) "Base Taxes" shall mean the initial "Annual
Service Charge" (as defined in Section 1.2(ii) of the Tax Agreement),
which is currently estimated to be $1,100,000, and which may be subject
to adjustment at such time as the Building has been completed and an
audit regarding Building construction costs has been performed pursuant
to the Tax Agreement. In the event the Base Taxes are adjusted as a
result of such audit of the Building construction costs, then the
parties agree that the "Base Tax Amount" (as defined in Section
2.2(B)(13) shall be adjusted as provided in Section 2.2(B)(13) below.
(5) "Tenant's Operating Share" shall mean forty-six
and 25/100ths (46.25%) percent based on 548,827 rentable square feet
contained in the Building (designated for office or non-retail use) and
253,812 rentable square feet contained in the ninth (9th) through
fifteenth (15th) floor portion of the Premises.
(6) "Tenant's Tax Share" shall mean forty-six and
99/100ths (46.99%) percent based on 567,318 rentable square feet
contained in the Building and 266,560 rentable square feet contained in
the Premises.
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<PAGE> 26
(7) "Comparison Year" shall mean with respect to
"Operating Costs" (as defined in (8)(a) below) or "Ground Floor
Operating Costs" (as defined in (8)(e) below), any calendar year
subsequent to the calendar year 2000 for any part or all of which there
are Additional Charges pursuant to Section 2.3 and Section 2.4 below.
(8) (a) "Operating Costs" shall mean all costs and
expenses (and taxes, if any, thereon, including without limitation,
sales and value added taxes) incurred or payable by Landlord in
connection with the operation, maintenance, repair, replacement and
management of the Property (including the equipment located therein)
whether structural or non-structural, and whether capital or
non-capital in nature) including, without limitation, security costs
and alarm services, all operating costs pertaining to the "Heating
System" and the "A/C System" (as defined in Article 24), the
Building-wide mechanical, electrical, sanitary, plumbing, sanitary,
elevator, emergency generator, life safety, heating, air-conditioning,
ventilating, utility or any other Building-wide service systems and all
equipment thereof (collectively, the "Building Systems"), management
fees in an amount (i) in the case of the first (1st) Comparison Year,
not to exceed three (3%) per cent of the Management Fee set forth in
the Landlord's pro forma operating budget for the Building as shown on
Schedule 3 annexed hereto and made a part hereof (the "Pro Forma
Budget"), and (ii) in the case of each successive Comparison Year
actually incurred by Landlord but not to exceed three (3%) percent of
the Management Fee for the prior Comparison Year, respectively,
electricity furnished to all common areas of the Property, whether
inside or outside, and required to operate the Heating System, (as
measured by a meter or meters to be installed by Landlord) and all
other Building Systems (excluding, however, electricity paid for by
Tenant and other tenants in the Building as measured by Tenant's and
such other tenants' check meters including the electricity for the A/C
system in the Premises and other premises in the Building), water,
water rates, frontage charges, sewer rents, insurance, fuel, labor,
wages and salary, employee benefits and payroll taxes, maintenance and
service contracts, window and other cleaning costs (subject, however,
to the provisions of subsection 2.5(B) below), rubbish and refuse
removal, supplies, the amount of any "Assessments" payable by Landlord
with respect to the Property to Newport Property Owners Association,
Inc. (or any successor thereto) pursuant to the "Declaration" (as such
terms defined in clauses (11) and (12) below), costs of alterations and
improvements made by reason of the requirements of "Insurance Bodies"
(as defined in Section 7.1), and/or Legal Requirements and maintenance
and repair of the outside grounds of the Property (including without
limitation gardening and landscaping thereof).
(b) Notwithstanding the foregoing, Operating Costs shall not
include the following:
(i) wages, salaries, fees and
fringe benefits paid to executive personnel
or officers or partners of Landlord;
(ii) Taxes;
(iii) the costs of overtime or
other expense of Landlord in curing its
defaults or performing work expressly
provided in this Lease to be borne at
Landlord's expense;
(iv) any expenses for which the
Landlord is compensated through proceeds of
insurance or is otherwise compensated by
parties other than tenants of the Building;
(v) the costs of any alterations
made to premises in the Building leased to
other tenants;
(vi) the costs of any repair made
by Landlord resulting
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<PAGE> 27
from fire or other casualty or condemnation
of all or part of the Building (except for
the amount of commercially reasonable
deductibles);
(vii) the costs of correcting
defects in the initial design or
construction of the Building, except that
conditions not occasioned by construction
defects resulting from ordinary wear and
tear will not be deemed defects for the
purpose of this category;
(viii) the costs or expenses in
connection with the operation of any
commercial space in, and garage operations
on or serving the Building;
(ix) expenses related to activities
regarding the solicitation of, and execution
of leases involving new tenants in the
Building;
(x) the costs for items and services
for which Tenant or any other tenant of the
Building reimburses or is required to
reimburse Landlord (other than through
pass-through of the direct expenses) in
accordance with provisions similar to this
Section and/or which Landlord provides
selectively to one or more tenants (other
than Tenant);
(xi) franchise, gross receipt,
excess profit and income taxes imposed upon
Landlord's business;
(xii) ground rent paid under
"Superior Leases"(as defined in Section
4.2);
(xiii) the costs of any electric
energy furnished to the Premises or any
rentable area of the Building for purposes
other than the operating of the "Heating
Systems", the "Building Systems" and
Building equipment and machinery, and the
lighting of the common areas on the
Property, all public toilets, stairways and
Building machinery, fan or
machinery/equipment rooms, which shall be
measured by a meter or meters installed by
Landlord, provided that as Section 24.2(C)
requires that Tenant pay directly for the
provision of certain after-hours heating to
the Premises which includes electric cost of
Landlord, electric cost for such after-hours
heating shall not be included in Operating
Costs;
(xiv) interest on and amortization
of debts including "Mortgages" (as defined
in Section 4.2) and/or the depreciation of
the Building);
(xv) expenditures for capital
improvements except, however, for capital
expenditures, including reasonable interest
charges incurred in connection therewith (y)
required by any Legal Requirement not now in
effect, to be amortized in accordance with
generally accepted accounting principles
consistently applied ("GAAP") as more fully
set forth in Section 2.2(B)(8)(d), or (z)
made for the purpose of saving or reducing
Operating Costs or the Ground Floor
Operating Costs (as, e.g., a labor-savings
improvement or a replacement of a
then-existing improvement which Landlord
reasonably determines would be more
economically or commercially prudent than a
repair of such then-existing improvement),
to be amortized in accordance with GAAP, as
more
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fully set forth in subsection 2.2(B)(8)(d)
below provided, however, that the amounts
allowable under this clause (z) of
subsection (xv) shall not exceed the
Operating Costs which would have been
charged by Landlord had such capital
expenditures not been made (collectively,
the "Permitted Depreciated/Amortized
Costs");
(xvi) except for Permitted
Depreciated/Amortized Costs, costs incurred
by Landlord for Building additions made
subsequent to the completion of the
"Landlord's Work" (as defined in Section
36.1) which are considered capital
improvements and replacements in accordance
with GAAP;
(xvii) except for Permitted
Depreciated/Amortized Costs, costs of a
capital nature, including, without
limitation, capital improvements, capital
repairs, capital equipment and capital
tools, all as determined in accordance with
GAAP;
(xviii) the costs to remove, abate
or treat any hazardous materials, including
asbestos, unless such costs are incurred as
a result of the activities, actions,
negligence, conduct or use of the Premises
or the use by Tenant of premises by Tenant
or subtenants of Tenant and any User;
(xix) fees or expenditures paid by
Landlord to any affiliate, or related entity
of Landlord to the extent such payment is
not reasonable or exceeds the amount which
would have been paid in the absence of such
relationship;
(xx) any expenses incurred in
connection with the performance of any
services, amenities or work or the
furnishing of any facilities to any tenant
in the Building which are above the level of
services, amenities, work or facilities
provided to Tenant or for which Tenant is
charged directly, including any overtime
costs, decorating, redecorating or special
cleaning services;
(xxi) any increase in Landlord's
insurance premiums for the Property to the
extent such increase is caused by or results
from the use, occupancy, actions, negligence
or misconduct of another tenant in the
Building (excluding, however, any increase
in Landlord's insurance premiums resulting
from Tenant and its use, occupancy, actions,
negligence or misconduct, which shall be
reimbursed to Landlord as provided in this
Lease);
(xxii) the costs for lease buyouts,
take over or take-back agreements or other
like Lease arrangements;
(xxiii) the costs of work or work
allowances in lieu thereof, for tenant
installations for tenants of the Building;
(xxiv) the costs incurred for any
employee of Landlord who does not devote
substantially all of his or her time to the
Building and/or Building management unless
prorated to reflect the relative time spent
on the Building; and
(xxv) any liabilities, damages,
awards and judgments for injury or death to
persons or damage to property arising from
the ownership or operation of the Property,
unless caused by or resulting from the
negligence or willful misconduct of Tenant,
its
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subtenants, licensees, employees, agents and
contractors; and
(xxvi) rental and other expenses
incurred in leasing property and equipment
which if purchased would be considered a
capital improvement or replacement unless
included in Operating Costs pursuant to, and
subject to the limitations of, the above
provisions and except for or unless a
Permitted Depreciated/Amortized Costs.
(c) If, during all or part of any Comparison Year, Landlord
shall not furnish any particular item(s) of work or any service which
would constitute an Operating Cost or Ground Floor Operating Cost to
any leasable premises in the Building because: (i) such premises is/are
not occupied or leased; or (ii) such item of work or service is not
required or desired by the tenant(s) occupying such premises because
(A) such tenant(s) is itself obtaining and providing such item or work
or service, or (B) for any other reason, then Operating Costs or Ground
Floor Operating Cost for such period shall be deemed to include an
amount equal to the additional costs and expenses which would
reasonably have been incurred during such period by Landlord if it had
furnished such item of work or services to such portion(s) of the
Building or to such tenant(s).
(d) Landlord shall amortize or depreciate the cost of capital
improvement items included in Operating Costs or Ground Floor Operating
Costs over the reasonable life of such improvements (as determined by
Landlord in accordance with GAAP, with interest at the rate of three
(3%) over the "base" lending rate announced by Chase Manhattan Bank
from time to time.
(e) Tenant acknowledges and agrees that some of the Operating
Costs benefit the Ground Floor Premises and Landlord and Tenant wish to
hereafter make provisions therefor. In this regard the following terms
shall have the following meanings:
(i) "Ground Floor Operating Costs" shall mean only
those Operating Costs included in the categories of Operating
Costs set forth in the Landlord's pro forma retail space
budget as shown on Schedule 3-A annexed hereto and made a part
hereof (the "Pro Forma Retail Space Budget"), limited as to
any category of Operating Costs with respect to which a
percentage is shown on Schedule 3-A, to the percentage of
Operating Costs so shown for that category; and
(ii) "Tenant's Ground Floor Operating Share" shall
mean two and 25/100ths (2.25%) percent based on 567,318
rentable square feet contained in the Building and 12,748
rentable square feet contained in the Ground Floor Premises.
(9) "Operating Statement" shall mean an instrument or
instruments setting forth a final comparison of actual Operating Costs
and Ground Floor Operating Costs and the "Operating Payment" (as
defined in Section 2.4(A) below) due and owing with respect to
Operating Costs and Ground Floor Operating Costs for the preceding
Comparison Year, which shall be in reasonable detail and shall show the
categories of Operating Costs and Ground Floor Operating Costs then
typically itemized by owners of comparable buildings in the "Comparable
Market" (as such term is hereinafter defined) and substantially similar
to the Operating Costs and Ground Floor Operating Costs categories,
respectively, in Landlord's Pro Forma Budget as shown on Schedule 3 and
Landlord's Pro Forma Retail Space Budget as shown on Schedule 3-A, in
each case annexed hereto and made a part hereof. The Operating
Statement shall be certified by the Chief Financial Officer of Landlord
or by an independent accounting firm if an Operating Statement so
certified by an accounting firm is to be provided to any other tenant
in the Building under such tenant's lease with Landlord, in each case
stating that such Operating Statement was prepared in accordance with
this Section.
(10) "Tax Statement" shall mean a statement setting
forth a comparison of the Taxes for the Tax Year with the Base Tax
Amount, and the "Tax Payment" (as
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defined in Section 2.3 (A) below) due and owing, together with a copy
of the tax bill for the Tax Year in question and such other information
as is or may be reasonably be necessary, in Landlord's reasonable
judgment, to determine the accuracy of the calculation.
(11) "Declaration" shall mean that certain
Declaration of Covenants, Restrictions, Easements, Charges and Liens of
the Newport Property Owners Association, Inc. ("POA") dated as of July
28, 1992, but deemed effective as of September 1, 1987, recorded in the
Hudson County Register of Deeds in Book 4575, Page 243, as amended by
First Amendment to Declaration of Covenants, Restrictions, Easements,
Charges and Liens dated as of July 1, 1993, recorded in the Hudson
County Register of Deeds in Book 4622, Page 096.
(12) "Assessments" shall mean those common area
maintenance charges for the NEWPORT development assessment against the
Property by the POA pursuant to the Declaration.
(13) "Base Tax Amount" shall mean and be equal to
$1,100,000; provided, however, that if the initial Annual Service
Charge under the Tax Agreement, as audited, is finally established to
be greater than $1,210,000, then the Base Tax Amount shall be the
initial Annual Service Charge, as audited, and in such event, for each
year during the Term of this Lease, Tenant shall pay an additional
amount equal to $110,000 multiplied by Tenant's Tax Share, and the term
"Tax Payment" shall include such additional amount.
(14) "Base Operating Costs Amount" shall mean and be
equal to $2,875,853.
(15) "Base Ground Floor Operating Costs Amount" shall
mean and be equal to $46,657.68.
Section 2.3 (A) If Taxes for any Tax Year (any part or all of which
falls within the Term) shall increase above the Base Tax Amount, Tenant shall
pay as Additional Rent an amount equal to Tenant's Tax Share of such increase
(the "Tax Payment"), which amount shall be payable as hereinafter provided.
(B) At any time during or after the Term, Landlord may render
to Tenant a Tax Statement showing (1) a comparison of the Taxes for the Tax Year
with the Base Taxes, and (2) the amount of the Tax Payment resulting from such
comparison. On the first day of the month following the furnishing to Tenant of
a Tax Statement, but no sooner than thirty (30) days thereafter, Tenant shall
pay to Landlord a sum equal to one-twelfth (1/12th) of the Tax Payment shown
thereon to be due for such Tax Year multiplied by the number of months (and any
fraction thereof) of the Term then elapsed since the commencement of such Tax
Year. If Landlord furnishes a Tax Statement for a Tax Year subsequent to the
commencement thereof, until the first day of the month following the month in
which the Tax Statement is furnished to Tenant: (x) Tenant shall continue to pay
to Landlord on the first day of each month an amount equal to the monthly sum
payable by Tenant to Landlord with respect to the next previous Tax Year; (y)
promptly after the Tax Statement is furnished to Tenant, Landlord shall give
notice to Tenant stating whether the amount previously paid by Tenant to
Landlord for the current Tax Year was greater or less than the installments of
the Tax Payment to be paid for the current Tax Year in accordance with the Tax
Statement, and (a) if there shall be a deficiency, Tenant shall pay the amount
thereof, as Additional Rent, in accordance with Section 2.1(C), or (b) if there
shall have been an overpayment, Landlord shall credit the amount thereof against
the next monthly installments of the Tax Payment payable under this Lease; and
(z) on the first day of the month following the month on which the Tax Statement
is furnished to Tenant, but no sooner than thirty (30) days thereafter, and
monthly thereafter throughout the remainder of the current Tax Year, Tenant
shall pay to Landlord an amount equal to one-twelfth (1/12th) of the Tax Payment
shown on the Tax Statement. Tax Payments shall be collectible by Landlord in the
same manner as
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Fixed Rent. Subject to the provisions of Section 2.5(C), Landlord's failure to
render a Tax Statement shall not prejudice Landlord's right to render a Tax
Statement during or with respect to any subsequent Tax Year, and shall not
eliminate or reduce Tenant's obligation to make a Tax Payment for such Tax Year.
If the amount of any overpayment cannot be recouped by credit under clause (b)
of this subsection (B) within thirty (30) days from the date the overpayment has
been determined then interest at the Interest Rate shall accrue on the unpaid
balance of the overpayment from the thirty-first (31st) day or, at Tenant's
option, Landlord shall refund such amount plus such interest to Tenant within
thirty (30) days after notice..
(C) (1) If Landlord shall receive a refund of Taxes applicable
to any Tax Year for which a Tax Payment shall have been made by Tenant,
Landlord, at its option, shall either repay to Tenant or credit against
subsequent payments of Additional Charges hereunder, Tenant's Tax Share of such
refund, together with Tenant's Tax Share of any interest thereon received by
Landlord from the taxing authority, after deducting from the refund the costs
and expenses of obtaining the same (to the extent such costs and expenses were
not theretofore included in Taxes for such Tax Year); but if the refund is
received after the expiration or earlier termination of this Lease, Landlord
shall repay such sum to Tenant within thirty (30) days after receipt by Landlord
; provided, however, that such refund to Tenant shall in no event exceed
Tenant's Tax Payment paid for the particular Tax Year in question.
(2) The expiration or termination of this Lease
during any Tax Year shall not affect Landlord's obligation to so repay
or credit Tenant's Tax Share of any refund with respect to such Tax
Year, and such obligation shall survive any such expiration or
termination of this Lease. If the amount of any refund is not paid to
Tenant or recouped by a credit against subsequent payments of
Additional Rent within thirty (30) days from the date the refund was
received by Landlord, then interest at the Interest Rate shall accrue
on the unpaid balance of the overpayment from the thirty-first (31st)
day.
(D) (1) Tenant shall pay, prior to delinquency, any and all
taxes levied against any of Tenant's Property placed by Tenant in or about the
Premises. If any such taxes on Tenant's Property are levied against Landlord or
the Property, or if the assessed valuation of the Property is increased by the
inclusion therein of a value attributable to Tenant's Property, Landlord shall
have the right, but not the obligation, to pay such taxes. The amount of any
such payment by Landlord shall constitute Additional Rent payable by Tenant upon
demand but no sooner than thirty (30) days thereafter.
(2) Landlord shall pay, prior to any delinquency and
subject, however, to Landlord's right to contest the same, all Taxes
levied against the Property. Tenant hereby acknowledges and agrees that
Landlord may contest and appeal all Taxes provided such contest is done
with all reasonable promptness, and provided further that such contest
or such appeal shall not constitute a default under any Superior Lease
or Mortgage under which Landlord may be obligated, or to cause the
Property, the Building and/or the Premises, or any part thereof, to be
in danger of being subject to a tax sale or of being foreclosed upon.
(E) If any alterations to or improvements in the Premises by
or on behalf of Landlord or Tenant, irrespective of ownership thereof, are
assessed for real property tax purposes at a valuation higher than the valuation
at which improvements conforming to Landlord's "Building standard" in other
spaces in the Building are assessed, as evidenced by the tax assessor's
worksheets or other similar documentation, then the Taxes levied against
Landlord or the Property by reason of such excess assessed valuation shall be
deemed to be taxes levied against Tenant's Property and shall be governed by the
provisions of clause (D) (1) above. Similarly, Tenant shall not be required to
pay its share of any Taxes which are increased because of alterations or
improvements made to any other tenant's premises in the Building which are
assessed for real property tax purposes at a valuation higher than the valuation
at which Building- standard improvements are assessed, as so evidenced by the
tax assessor's worksheets or other similar documentation.
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(F) Provided that the taxing authority in question provides
Landlord with a receipted tax bill evidencing Landlord's payment of Taxes for a
particular Tax Year, Landlord shall, after receipt from Tenant of a written
request therefore, supply Tenant with a copy of such receipted tax bill
requested by Tenant in such written notice, for the particular Tax Year in
question, within thirty (30) days after Landlord receives such receipted tax
bill, if provided, from such taxing authority. Notwithstanding the foregoing, if
Tenant fails to request from Landlord a copy of a receipted tax bill for a
particular Tax Year within one (1) year after the expiration of such Tax Year,
Tenant shall be deemed to have waived and shall be deemed precluded from asking
or requesting Landlord to supply such receipted tax bill, if available, and
Landlord shall have no obligation thereafter to supply Tenant with a copy of
such receipted tax bill for such Tax Year.
Section 2.4 (A) If (1) the Operating Costs for any Comparison Year (any
part or all of which falls within the Term) shall increase above the Base
Operating Costs Amount, then Tenant shall pay as additional rent for such
Comparison Year an amount equal to Tenant's Operating Share of such increase, or
(2) if the Ground Floor Operating Costs for any Comparison Year (any part or all
of which falls within the Term) shall increase above the Base Ground Floor
Operating Costs Amount, then Tenant shall pay as additional rent for such
Comparison Year an amount equal to Tenant's Ground Floor Operating Share of such
increase (such aggregate amount is called the "Operating Payment"), which amount
shall be payable as hereinafter provided.
(B) (1) By no later than May 1st of each Comparison Year,
Landlord shall render to Tenant a written statement ("Landlord's
Estimate") setting forth Landlord's reasonable estimate of the
Operating Payment for such Comparison Year, which shall be based on the
comparison of the estimated increase in the Operating Costs for such
Comparison Year with the Base Operating Costs Amount and in the Ground
Floor Operating Costs for such Comparison Year with the Base Ground
Floor Operating Costs Amount, respectively, but such estimated amounts
shall not exceed the Operating Costs or Ground Floor Operating Costs,
respectively, for the immediately preceding Comparison Year (or in the
case of the first Comparison Year, the amount of the Base Operating
Costs Amount or the Base Ground Floor Operating Costs Amount,
respectively) multiplied by one hundred ten percent (110%).
(2) If Landlord furnishes a Landlord's Estimate for any
Comparison Year subsequent to the commencement thereof, Tenant shall
within thirty (30) days thereafter pay to Landlord an amount equal to
one-twelfth (1/12th) of the Operating Payment shown thereon to be due
for such Comparison Year multiplied by the number of months (and any
fraction thereof) of the Term then elapsed since the commencement of
such Comparison Year (less any amounts already paid by Tenant on
account of the Operating Payment since the beginning of such Comparison
Year). Until the first day of the month following the month in which
the Landlord's Estimate is so furnished to Tenant, Tenant shall
continue to pay to Landlord on the first day of each month an amount
equal to the monthly sum payable by Tenant to Landlord with respect to
the immediately preceding Comparison Year. On the first day of the
month following the month on which the Landlord's Estimate is furnished
to Tenant, and monthly thereafter throughout the remainder of the
current Comparison Year, Tenant shall pay to Landlord an amount equal
to one-twelfth (1/12th) of the Operating Payment shown on the
Landlord's Estimate.
(3) After the end of each Comparison Year, but no later
than the following May 1, Landlord shall furnish to Tenant an Operating
Statement for such Comparison Year. If the Operating Statement shall
show that the sums paid by Tenant based upon Landlord's Estimate for
such Comparison Year exceed Tenant's Operating Payment required to be
paid by Tenant for such Comparison Year, Landlord shall pay to Tenant
the amount of such excess (together with interest at the Interest Rate
on any excess payments made by Tenant, based on the prior year's
estimates, for any period after May 1 of such year if the Operating
Statement is delivered after May 1 of such year) within thirty (30)
days after the Operating Statement has been furnished, and in the event
such refund has not been made within such thirty (30) day period, the
refund shall thereafter
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accrue interest at the Interest Rate, and at Tenant's option, Tenant
may credit such sums against the next monthly installments of Operating
Payments payable under this Lease by providing written notice to
Landlord of such election. If the Operating Statement for such
Comparison Year shall show that the sums so paid by Tenant were less
than Tenant's Operating Payment for such Comparison Year, Tenant shall
pay the amount of such deficiency as a non-recurring item of Additional
Rent in accordance with Section 2.1(C). Operating Payments, whether
based on a Landlord's Estimate or an Operating Statement, shall be
collectible by Landlord in the same manner as Fixed Rent. Subject to
the provisions of Section 2.5 (c), Landlord's failure to render an
Operating Statement shall not prejudice Landlord's right to render an
Operating Statement during or with respect to any subsequent Comparison
Year, and shall not eliminate or reduce Tenant's obligation to make an
Operating Payment for such Comparison Year.
Section 2.5 (A) Each Tax Statement and Operating Statement shall be
conclusive and binding upon Tenant unless within one hundred twenty (120) days
after the receipt of such Tax Statement or Operating Statement, as the case may
be, Tenant shall notify Landlord that it disputes the correctness thereof,
specifying the particular respects in which the Tax Statement or Operating
Statement, as the case may be, is claimed to be incorrect. If such dispute is
not settled by agreement, either party may submit the dispute to arbitration, as
provided in Article 34 hereof, within one hundred fifty (150) days after receipt
of said Tax Statement or Operating Statement. Pending the determination of such
dispute by agreement or arbitration as aforesaid, Tenant shall pay the
Additional Charges, as additional rent, in accordance with Section 2.3 and
Section 2.4 above. If the dispute shall be determined in Tenant's favor,
Landlord shall, within thirty (30) days, pay to Tenant the amount of Tenant's
overpayment of Additional Charges resulting from compliance with the Tax
Statement or Operating Statement, as the case may be together with interest
thereon at the Interest Rate accruing from the last day of the Tax Year or
Comparison Year, as the case may be, which is the subject of such dispute and,
at Tenant's option, it may credit such sums against the next monthly
installments of Operating Payments payable under this Lease by providing written
notice to Landlord of such election. Upon twenty (20) days prior written notice
from Tenant (which notice shall be given within the aforesaid one hundred twenty
(120) day period), Landlord agrees to permit Tenant's employees or outside
consultants, accountants or other advisors selected by Tenant reasonable access
(for a period not to exceed thirty (30) days following the initial appointment
date) to review Landlord's books and records applicable to the Building for the
purpose of verifying Tenant's Operating Payment and Operating Costs and Ground
Floor Operating Costs in respect of the Comparison Year in question. Any such
review shall be conducted at any office of Landlord or its managing agent
located in the tri-state area or, if no such office exists or if Landlord
otherwise elects, at the Building. Tenant, on behalf of itself and such
permittees, agrees to keep any and all information obtained thereby strictly
confidential (except to the extent relevant to any arbitration proceeding as
aforesaid). If such arbitration or audit shall require Landlord to refund more
than ten (10%) percent of the original Additional Charge, Landlord shall
reimburse Tenant in addition thereto (or Tenant may have a credit) for the
reasonable cost of the arbitration or audit in the same manner and time as
applies to the refund itself.
(B) In the event that Tenant, after its review of an Operating
Statement for a particular Comparison Year as provided above in Section 2.5(A),
determines that any increase of the costs incurred by Landlord for window and
other Building cleaning services during such Comparison Year, exceeds the amount
of such window and other Building cleaning costs for the immediately prior
Comparison Year by more than the "Index" (as such term is defined in Article 4)
for the relevant Comparison Year, or if Tenant, during a particular Comparison
Year, has advised Landlord, in writing, of Tenant's complaints or
dissatisfaction with the quality of the cleaning services being rendered by the
existing cleaning contractor, which written complaints shall indicate, with
reasonable specificity, the alleged nature of the cleaning deficiencies or poor
quality, respectively, as the case may be, and such cleaning quality has not
improved notwithstanding Landlord's discussions of the alleged cleaning problems
with the existing cleaning contractor, Tenant shall have the right to request in
writing that Landlord, upon the expiration of the then existing cleaning
contract for the Building for such cleaning services rebid the Building's
cleaning contract and include as part of any bid package for such cleaning
services the name of
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a cleaning contractor reasonably acceptable to Tenant to perform such cleaning
services, provided, however, that Tenant's requested cleaning contractor
provides the same quality and quantity of cleaning services as those then being
performed as provided by the existing Building cleaning contractor. Landlord
agrees in such event, to select in good faith and its commercially reasonable
judgment, as the next cleaning contractor for the Building the lowest eligible
bidder and terminate the existing contract as soon as possible, and for that
purpose not to enter into a cleaning contract, for a term in excess of one (1)
year, and provided, however, in no event shall Landlord be obligated to comply
with the foregoing more than once during any Comparison Year.
(C) The expiration or termination of this Lease during any
Operating Year or Tax Year shall not affect the rights and obligations of the
parties hereto respecting any payments of Operating Payments due for such
Operating Year and any payments of Tax Payments for such Tax Year (or as to any
refunds required of Landlord), provided, however, that Landlord renders to
Tenant a Tax Statement or Operating Statement, as the case may be, within one
(1) year following the end of such Operating Year or Tax Year, as applicable.
Further, notwithstanding the immediately preceding sentence, Tenant shall not be
responsible for Tenant's Operating Share of any Operating Expenses or of
Tenant's Ground Floor Operating Share of any Ground Floor Operating Expenses
attributable to any Comparison Year and/or Tenant's Tax Share of any Taxes
attributable to any Tax Year, respectively, which are first billed to Tenant
more than one (1) calendar year after the earlier of the expiration of the
applicable Comparison Year or Tax Year, respectively or the Lease termination or
Expiration Date. Any Operating Statement relating to such Operating Payment and
any Tax Statement relating to such Tax Payment may be sent to Tenant subsequent
to, and all such rights and obligations shall survive, any such expiration or
termination (subject to the one (1) year limitation aforesaid). In determining
the amount of the Operating Payment for the Operating Year or the Tax Payment
for the Tax Year in which the Term shall expire, the payment of the Operating
Payment for such Operating Year or the Tax Payment for the Tax Year shall be
prorated based on the number of days of the Term which fall within such
Operating Year or Tax Year, as the case may be. Any payments due under such
Operating Statement or Tax Statement shall be payable within twenty (20) days
after such Operating Statement or Tax Statement, as the case may be, is sent to
Tenant.
Section 2.6 (A) Notwithstanding anything to the contrary contained in
this Article 2, Landlord hereby agrees to make an equitable adjustment to
Tenant's Operating Share in the event that Landlord elects to add, as office
space in the Building, space on the ground floor of the Building currently
designated as a retail space, in order to reflect the increase in the total
amount of office space in the Building used to calculate the Tenant's Operating
Share.
(B) Landlord represents that the rentable area for
the Building has been and will be determined in accordance with the methodology
established by the Real Estate Board of New York ("REBNY") and that such
methodology has been used to determine the rentable (and usable) area for the
Premises. In the event that Tenant leases other space in the Building from
Landlord as provided in Article 39 hereof, or the rentable square feet in the
Premises is reduced pursuant to any of the provisions of this Lease, Tenant's
Operating Share and Tenant's Tax Share shall be adjusted in accordance with the
rentable square feet so affected. In the event that the square footage of the
Building is increased, the rentable area and usable area of the new space shall
be established in accordance with REBNY methodology, with a loss factor within a
range of twelve (12%) percent to sixteen (16%) percent.
(C) Landlord has advised Tenant that the rentable
square feet of each floor in the Building are as set forth on Schedule 7 annexed
hereto. The measurement of the rentable area of the Building or of the floors
which constitute or may constitute part of the Premises will not be subject to
change except by reason of (1) a condemnation, acquisition in lieu thereof or
other taking of the Building or any portion thereof, or (2) an alteration or
improvement to the Building which increases or decreases the rentable area of
the Building or of floors which constitute or may constitute part of the
Premises (unless any alteration shall be constructed as a condominium unit
operating separately from the existing Building).
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<PAGE> 35
Section 2.7 In the event Tenant timely and validly exercises a Renewal
Option for the Renewal Term, as provided in Article 1 of this Lease, the parties
hereto agree that the Fixed Rent for the Premises (it being agreed and
understood that reference in this Section 2.7 to the term "Premises" shall mean
the Premises as to which Tenant has renewed the Lease for the applicable Renewal
Term), for the Renewal Term in question shall be as follows:
(A) The Fixed Rent for the Premises for a Renewal Term (the
"Rental Value") shall be an amount equal to: (x) if Tenant is then Tenant named
herein or a Permitted Tenant, the annual fair market rental value of the
Premises (the "Fair Market Rent") as of the Renewal Term Commencement Date for
the Renewal Term in question; and (y) if Tenant is then an assignee or other
successor-in-interest other than a Permitted Tenant, the greater of (i) one
hundred (100%) of the Fair Market Rent on the Renewal Term Commencement Date for
the Renewal Term in question, or (ii) the Fixed Rent and Additional Charges
payable by Tenant during the last full twelve (12) months of (i) the initial
Term, in the case of the First Renewal Term, and (ii) the First Renewal Term, in
the case of the Second Renewal Term, respectively. The Fair Market Rent shall be
determined on the basis of the highest and best use of the Premises as offices
assuming the Premises are free and clear of all leases and tenancies (including
this Lease), that the Premises were available in the then rental market for
comparable first class office buildings of similar quality, size, age, character
and location of the Building (the "Comparable Market"), that Landlord has had a
reasonable time to locate a tenant who rents with the knowledge that the
Premises can be used as offices, that neither Landlord nor the prospective
tenant is under any compulsion to rent, and taking into account:
(1) that the Base Tax Amount, for purposes of
calculating increases in Taxes, and the Base Operating Costs Amount and
the Base Ground Floor Operating Costs Amount, for purposes of
calculating increases in Operating Costs and Ground Floor Operating
Costs, respectively (a) for the First Renewal Term, shall change to and
be the amounts of the Taxes, Operating Costs, and Ground Floor
Operating Costs, respectively, for the calendar year in which the
Renewal Term Commencement Date shall occur, and (b) for the Second
Renewal Term, shall change to and be the amounts of Taxes, Operating
Costs and Ground Floor Operating Costs, respectively, for the calendar
year in which the Second Renewal Term Commencement Date shall occur,
respectively, as the case may be;
(2) that if the Tax Agreement is then in effect, the
fact that Tenant may realize a cost savings with respect to its
obligation to pay a share of Taxes or, if the Tax Agreement is
scheduled to expire during the applicable Renewal Term, that Tenant may
not realize a cost savings with respect to its obligation to pay a
share of Taxes levied after such scheduled expiration of the Tax
Agreement;
(3) that as of a particular Renewal Term Commencement
Date, Tenant shall not be required to pay, in addition to the
Additional Charges presently provided for under this Lease, Tenant's
Tax Share and Tenant's Operating Share of Additional Charges or other
escalation payments which Landlord is then charging tenants under other
leases or offers for leases in the Building or in other buildings then
owned by Landlord or its affiliates or under common management with the
management company then managing the Building, respectively, or of such
other escalation payments which other landlords are then charging
tenants under leases or offers for leases in other office buildings
located in the Comparable Market;
(4) that the then existing improvements located at
the Premises shall be considered as the equivalent of the standard new
Building installation in the Comparable Market, subject to reasonable
wear and tear which shall have occurred from the date(s) of completion
thereof (which need not be ascertained) to the approximate date of the
arbitration as such wear and tear shall be revealed by an inspection
made by the arbitrator, or, if Landlord and Tenant then agree, by
pictures, testimony or other evidence as stipulated and agreed to by
Landlord and Tenant for submission to the arbitrator; and that
consideration or value shall be given for any brokerage commissions or
finder fees paid by Landlord, but that no consideration or value shall
be given for improvements over and
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above what would constitute a standard new Building installation
typically given to new tenants in the Comparable Market; and provided,
further, that if it is then customary for owners of comparable
buildings in Comparable Market with respect to leases for a term the
length of the Renewal Term (i.e. five (5) years), that Landlord shall
not be deemed to have (a) incurred and/or paid any fees, costs or
expenses for marketing costs, (b) granted to Tenant (i) any rental
concessions, (ii) other abatements, (iii) improvement allowances, or
(iv) any other allowances, any or all of which are typically given to
new tenants in the Comparable Market, taking into account Landlord's
obligation to perform the work in the Premises at the commencement of
the First Renewal Term, more particularly described in Section 1.3((E)
above, and (c) incurred any rental loss due to marketing or
construction down-time with respect to the leasing of the Premises; and
(5) the credit worthiness of Tenant, the then current
rentals or occupancy fees which Landlord or other owners of comparable
buildings in the Comparable Market shall then be receiving for the
renting of or granting of use or occupancy rights for comparable office
space in the Building or in such other comparable buildings, as the
case may be, for the purposes described in this Lease, and the manner
in which technological, engineering and/or other scientific advances
over time shall affect the utilization of such space in the Building
and such comparable buildings in the Comparable Market, and the fact
that Tenant shall incur no fees or expenses for (a) moving, (b)
relocation, and/or (c) business interruption.
Tenant's obligation to pay Additional Charges, as Additional Rent, on account of
increases in the amounts of the Taxes, Operating Costs and Ground Floor
Operating Costs, as the case may be, as set forth in Sections 2.3 and 2.4, shall
continue during the Renewal Terms, subject to adjusted base amounts as more
fully set forth in Section 2.7(A)(1).
(B) For purposes of determining the Fair Market Rent, the
following procedure shall apply:
(1) Landlord shall give Tenant written notice (the
"Rent Notice") at least three hundred and sixty five (365) days prior
to (a) the Fixed Expiration Date in the case of the First Renewal Term,
and (b) the First Renewal Term Expiration Date in the case of the
Second Renewal Term, as the case may be, setting forth Landlord's
determination of the Fair Market Rent for the First Renewal Term and
the Second Renewal Term, as the case may be. If Landlord shall fail or
refuse to give the Rent Notice as aforesaid, Landlord's determination
of the Fair Market Rent shall be deemed to be the Fixed Rent and
Additional Charges payable by Tenant on (x) the Fixed Expiration Date
in the case of the First Renewal Term, and (y) the First Renewal Term
Expiration Date in the case of the Second Renewal Term, as the case may
be. The amount of the Fair Market Rent set forth in the Rent Notice, or
the deemed amount in the case where Landlord has failed to deliver a
Rent Notice, shall be called "Landlord's Determination."
(2) Tenant shall give Landlord written notice (the
"Tenant's Notice") (a) within twenty (20) days after Tenant's receipt
of the Rent Notice, or (b) if Landlord has failed to deliver a Rent
Notice as aforesaid then at least three hundred and forty (340) days
prior to (i) the Fixed Expiration Date in the case of the First Renewal
Term, and (ii) the First Renewal Term Expiration Date in the case of
the Second Renewal Term, as the case may be, that Tenant accepts or
disputes Landlord's Determination. If Tenant, in Tenant's Notice,
accepts Landlord's Determination, Tenant shall be deemed to have
accepted Landlord's Determination for the Renewal Term in question. If
Tenant fails or refuses to give Tenant's Notice, as aforesaid, Tenant
shall be deemed to have rejected or shall be deemed to dispute
Landlord's Determination. If Tenant, in Tenant's Notice, disputes or if
Tenant is deemed to have disputed Landlord's Determination, as
aforesaid, Tenant shall deliver to Landlord, together with Tenant's
Notice, Tenant's determination of the Fair Market Rent (the "Tenant's
Determination").
(3) Landlord shall give Tenant written notice (the
"Landlord's Notice"),
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within ten (10) days after Landlord's receipt of Tenant's
Determination, that Landlord accepts or disputes Tenant's
Determination. If Landlord in Landlord's Notice accepts Tenant's
Determination, Landlord shall be deemed to have accepted Tenant's
Determination. If Landlord fails or refuses to give a Landlord's
Notice, as aforesaid, Landlord shall be deemed to have rejected or
shall be deemed to dispute Tenant's Determination. If Landlord disputes
or is deemed to have disputed Tenant's Determination, Tenant shall
appoint an independent real estate appraiser (the "Tenant's Appraiser")
to prepare a determination of the Fair Market Rent ( the "Tenant's
Determination") and Landlord shall appoint an independent real estate
appraiser (the "Landlord's Appraiser") to prepare a determination of
the Fair Market Rent (the "Landlord's Determination"). Landlord will
deliver to Tenant a copy of Landlord's Determination, together with
Landlord's Notice, or if Landlord fails to provide a Landlord's Notice,
within fifteen (15) days after the Landlord's Appraisal has been
prepared and delivered to Landlord, and Tenant will deliver to Landlord
to copy of Tenant's Determination within ten (10) days after receipt of
Landlord's Notice, or if Landlord fails to give a Landlord's Notice
after receipt of Landlord's Determination respectively, as the case may
be. Landlord and Tenant shall promptly meet in order to resolve the
dispute and arrive at a mutually acceptable determination of the Fair
Market Rent for the Renewal Term, in question.
(4) If Landlord and Tenant are unable to agree upon
the determination of the Fair Market Rent within thirty (30) days from
the earlier to occur of (a) the date on which the Rent Notice shall be
provided to Tenant by Landlord, or (b) if Landlord fails to provide a
Rent Notice, the date on which Tenant provides the Tenant's Notice to
Landlord, as aforesaid, the determination of the Fair Market Rent for
the Renewal Term in question, and the amount of the Fixed Rent for such
Renewal Term, shall promptly be referred to arbitration in accordance
with the provisions of Section 2.7(B)(5) below.
(5) (a) Any dispute with respect to the Fair Market
Rent of the Premises for the First Renewal Term, as of the Fixed
Expiration Date, and the Second Renewal Term, as of the First Renewal
Term Expiration Date, respectively, submitted to arbitration pursuant
to this Section 2.7(B)(5), shall be determined by a single arbitrator
appointed in accordance with the American Arbitration Association Real
Estate Valuation Arbitration Proceeding Rules. Such arbitrator shall be
impartial and shall have not less than ten (10) years' experience in
the Northern New Jersey-New York metropolitan area in a calling related
to the leasing of commercial office space in office buildings located
in the Comparable Market, and his or her fee shall be borne equally by
Landlord and Tenant..
(b) Within fifteen (15) days following the
appointment of such arbitrator, each party shall submit a report to the
arbitrator setting forth its determination of the Fair Market Rent for
the Premises for the particular Renewal Term in question, which report
may include or consist of the Landlord's Determination (at Landlord's
election) and/or the Tenant's Determination (at Tenant's election),
respectively, as the case may be, together with such other information
on comparable rentals or such other evidence as such party shall deem
relevant. Each party authorizes the arbitrator to promptly release to
the other party all such reports and other information as such party
has submitted to the arbitrator after the expiration of such fifteen
(15) day period for submissions of reports. If either party fails to so
deliver its report within such time period, the arbitrator shall
promptly notify both parties, by certified or registered mail, return
receipt requested, and by hand or by courier guaranteeing overnight
delivery, and if the party who shall have so failed to deliver its
report shall not deliver the same within two (2) days after delivery to
it of such notice, TIME THEN BEING OF THE ESSENCE with respect to such
delivery, such party shall be deemed to have irrevocably waived its
right to deliver a report and the arbitrator, without holding a
hearing, shall accept the report of the submitting party as the Fair
Market Rent.
(c) The arbitrator shall, within fifteen
(15) days following such
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hearing and submission of evidence, render his/her decision by
selecting the determination of the Fair Market Rent of the Premises for
the particular Renewal Term in question submitted by either Landlord or
Tenant which, in the judgment of the arbitrator, most nearly reflects
the Fair Market Rent of the Premises for the particular Renewal Term in
question. It is expressly understood that the decision of such
arbitrator as to the Fair Market Rent shall be final and binding upon
the parties hereto and non-appealable.
(d) It is expressly understood that any determination
of the Fair Market Rent shall be based on the assumptions and criteria
stated in this Section 2.7 and the arbitrator shall not have the power
to add to, modify or change any of the provisions of this Lease.
(C) After a determination has been made of the Rental Value
for the Renewal Term, the parties shall execute and deliver to each other an
agreement setting forth the Rental Value as hereinabove determined.
(D) If the final determination of the Rental Value shall not
be made on or before the Renewal Term Commencement Date for the particular
Renewal Term in question, in accordance with the provisions of this Section 2.7,
then pending such final determination Tenant shall continue to pay, as the Fixed
Rent for the Renewal Term the amount of the Rental Value set forth in the
Landlord's Determination or the deemed amount where Landlord has not delivered a
Rent Notice. If, based upon the final determination hereunder of the Rental
Value, the payments made by Tenant on account of the Rent for such portion of
the Renewal Term in question were (x) less than the Rental Value payable for the
Renewal Term, Tenant shall pay to Landlord the amount of such deficiency within
five (5) days after demand therefor, or (y) greater than the Rental Value
payable for the Renewal Term, Landlord shall refund to Tenant the amount of such
excess within twenty (20) days after demand therefor.
(E) At the request of either party made after the
determination of the Rental Value for a Renewal Term, the parties shall enter
into a supplementary agreement expressly confirming the extension of this Lease
for the Renewal Term, redefining the term "Premises", if appropriate, to be the
Premises as to which Tenant has renewed this Lease and establishing the amount
of Fixed Rent payable during the Renewal Term as the Rental Value for such
Renewal Term, provided, however, such extension and the terms thereof shall be
effective notwithstanding the failure of either or both parties to request to
execute and deliver such supplemental agreement.
ARTICLE 3
OCCUPANCY; PERMITTED USE; RESTRICTED USES
Section 3.1 (A) Tenant shall use and occupy the Premises for the
"Permitted Use" (as hereinafter defined) and for no other purpose. Tenant will
not at any time use or occupy the Premises in violation of the certificate of
occupancy (whether temporary or permanent) issued for the Premises and/or the
Building, as initially issued or thereafter amended or modified (the
"Certificates of Occupancy") except as provided in Section 3.3(B). In the event
that any Legal Authority shall hereafter contend or declare by notice,
violation, order or in any other manner whatsoever that the Premises are used
for a purpose which is a violation of the Certificate of Occupancy then in
effect, Tenant, upon five (5) days' written notice from Landlord or any Legal
Authority, shall immediately discontinue such use of the Premises subject to the
provisions of Section 7.2.
(B) For purposes of this Lease, the term "Permitted Use" shall
mean and include, but shall not be limited to, the right of Tenant to use all or
portions of Premises for: (1) general or executive offices, and/or retail
brokerage services, the conduct of an insurance, investment or securities
business, or for other financial services or any combination of the foregoing,
and for similar or allied businesses as an adjunct thereto, and for unrelated
businesses as an incident thereto; (2) computer, electronic data processing
equipment and business machines, including computer networks and printing and
duplicating equipment [subject, however, to
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compliance, with Legal Requirements, including "Environmental Laws" (as
hereinafter defined in Article 7)], all used for purposes incidental in the
business of the Tenant or its subtenants or Users; (3) training facilities which
are incidental to Tenant's or its subtenant's respective business, such as
training of Tenant's or its subtenant's or User's respective personnel; (4)
cafeteria or other dining and cooking facilities or vending machines
(collectively, "Dining Facilities") for the purpose of preparing and serving
food and beverages for the respective officers, directors, employees and guests
of Tenant and its Related Entities and their respective subtenants or Users, and
for the sale of snack foods, beverages, confections, newspapers and other
convenience items by vending machines or otherwise for such personnel (except
that any cafeteria in the ground floor portion of the Premises may also be used
by other occupants of the Building if Tenant so elects and Landlord has provided
its prior written consent to such use of the cafeteria by other Building
occupants, which consent Landlord agrees shall not be unreasonably withheld or
delayed; it being agreed and understood that it shall not be deemed unreasonable
for Landlord to withhold consent to such expanded use of the cafeteria if
Landlord shall have granted to a restaurant operator or other food service
operator a right to operate a restaurant or other food service operation in the
Building on an exclusive basis (an "exclusive") and Tenant has received written
notice thereof, and/or such expanded cafeteria use by Tenant, will, in
Landlord's good faith, commercially reasonable opinion, interfere with any such
restaurant or other food service operation whether or not such restaurant or
food operator shall have an exclusive in the Building; (5) meeting rooms,
auditoriums, exercise, health, medical and day care facilities, for service to
and use only by officers, directors, employees and guests of Tenant, its
subtenants or Users and in no event open to or available for use by the general
public; (6) messenger service in connection with and incidental to Tenant's or
its subtenant's or User's business; (7) a barber shop or shoeshine service
available only to officers, directors, employees and guests of Tenant and its
subtenants or Users and in no event open to or available for use by the general
public; (8) the storage of supplies, furniture, furnishings and equipment,
books, records and files and other items incidental to office uses or, as to the
Ground Floor Premises, incidental to cafeteria use, so long as that portion of
the Building is being used as a cafeteria, or if such portion of the Building is
then being used for general retail use, incidental to retail use; provided,
however, that such storage area above the Ground Floor Premises shall not exceed
more than ten (10%) percent of the usable area of the Premises; (9) the
installation of "private" lavatory or bathroom facilities; (10) the operation of
"ATM" machines, vending machines and similar equipment for the sole and
exclusive use of officers, directors, employees and guests of Tenant or its
subtenants or Users and in no event open to or available for use by the general
public; and (1l) the installation of trading floors and other electronic and
technological support systems in connection with the foregoing uses. With
respect to the Ground Floor Premises, Tenant's Permitted Use thereof shall
include the aforementioned Dining Facilities and/or any other retail uses
consistent with or better than the first class nature, occupancy and character
of the Building; provided however, that no such retail uses shall be
inconsistent with the Certificate of Occupancy for the Premises or, except for
the use of the Dining Facilities solely for the respective officers, directors,
employees and guests of Tenant and its Related Entities and their respective
subtenants and Users, violate any exclusive or prohibited retail use(s) in the
Building of which Landlord has theretofore provided written notice to Tenant.
(C) For purposes of this Lease the term "User" shall mean any
person or entity affiliated with Tenant and any Related Entity, or providing a
business service to Tenant and any Related Entity, or having a business
relationship in the ordinary course of business with Tenant and any Related
Entity, and which person or entity shall only use desk space in the Premises for
the purposes permitted by this Lease and subject to and in compliance with the
following terms and conditions:
(1) a User shall have no rights under this Lease and
Landlord shall have no liability or obligation to any User under this
Lease or for any reason whatsoever in connection with the use or
occupancy of the Premises;
(2) no more than fifty percent (50%) of the Premises
shall be occupied by Users which are not Related Entities;
(3) no separate entrances to the Premises from public
areas shall be
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constructed to access the space used by any User;
(4) Tenant shall give written notice to Landlord
prior to the occupancy of any User;
(5) each User shall use the Premises in conformity
with and subject to all provisions of the Lease;
(6) any breach or violation of this Lease by a User
shall be deemed to be and shall constitute a default by Tenant under
this Lease, and any act or omission of a User shall be deemed to be and
shall constitute the act or omission of Tenant under this Lease;
(7) the right of a User to occupy a portion of the
Premises shall not be deemed to be an assignment of, or sublease under,
this Lease and any occupancy of the Premises shall automatically
terminate upon expiration or earlier termination of this Lease;
(8) Tenant hereby indemnifies and holds harmless
Landlord, any Lessor and any Mortgagee against loss, claim or damage
arising from the acts or omission of any User;
(9) no User shall be entitled, directly or
indirectly, to diplomatic or sovereign immunity and each User shall be
subject to the service of process at and the jurisdiction of the courts
of, the State of New Jersey; and
(10) nothing herein shall be deemed a consent to use
of the Premises by any party other than Tenant and a User.
Section 3.2 Landlord shall obtain a Certificate of Occupancy for the
common areas and core spaces of the Building. A temporary Certificate of
Occupancy for the common areas and core spaces shall be in effect as of the
substantial completion of the "Phase 2 Base Building Work" (as defined in
Article 36), and a Certificate of Occupancy shall also be in full force on the
date Tenant occupies all or a portion of the Premises for the Permitted Uses.
Landlord agrees not to initially obtain nor amend such Certificate of Occupancy
in any manner which would cause same to prohibit the use of the Premises for the
Permitted Use.
Section 3.3 (A) Tenant shall obtain a temporary or permanent
Certificate of Occupancy for the Premises permitting the Premises to be used as
"offices" (as defined in Section 27(A) hereof) or for such other use(s) which
are not "offices" as shall be included within and/or as part of the Permitted
Use. Such temporary or permanent Certificate of Occupancy will be in force upon
the date upon which Tenant shall occupy all or any portion of the Premises for
the Permitted Use. Tenant will perform such work (other than Landlord's Work,
which Landlord shall be required to perform) necessary to obtain such
Certificate of Occupancy, including without limitation, the filing of any
documents or plans required by the Legal Authority, the scheduling of
inspections and correction of deficiencies, if any, with respect to the
Premises. Landlord shall, by the date Tenant is ready to commence its business
operations at the Premises, and in no event later than the occurrence of
substantial completion of the Phase 2 Base Building Work, perform such items of
Landlord's Work necessary for Tenant to obtain a Certificate of Occupancy or
temporary Certificate of Occupancy for the Premises.
(B) Tenant may cause application to be made for and obtain
amendments to the Certificate(s) of Occupancy for the Premises to permit the use
of the Premises, or portions thereof, for any of the uses specifically
enumerated in and as part of the Permitted Use, which are not "offices".
Landlord shall cooperate with Tenant in respect of any such application,
including making same in the name of Landlord if necessary, but provided that
Landlord shall incur no fee, cost, expense or liability in connection with such
co-operation to or with Tenant unless Tenant agrees to reimburse Landlord
therefor.
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Section 3.4 Without limitation of the prohibitions contained in Section
3.5 below, and in amplification thereof, Tenant shall not use or occupy or
permit or suffer the Premises to be used or occupied for any purposes other than
the Permitted Use set forth in this Article 3. In no event shall Tenant use or
permit the use of the Premises, or any portion thereof, in any manner which, in
Landlord's reasonable judgment, will: (1) materially and adversely affect (a)
the appearance or first-class nature of the Building, or (b) the proper or
economic furnishing of services to other tenants in the Building, or (c) the use
and enjoyment of any other portion of the Building by any other tenant(s), or
(d) the proper and economic functioning of any of the Building Systems, or (e)
Landlord's ability to obtain from reputable insurance companies authorized to do
business in New Jersey, at standard rates, all risk property insurance or
liability, elevator, boiler or other insurance required to be furnished by
Landlord under the terms of any "Superior Lease" and/or "Mortgage" (as such
terms are defined in Section 4.2) covering the Property; (2) violate any Legal
Requirements of Legal Authorities, or any requirements of Insurance Bodies, or
the Certificates of Occupancy with which Tenant is required to comply pursuant
to this Lease; or (3) be in violation of any of the Restricted Uses as are set
forth and defined below in Section 3.5.
Section 3.5 Tenant shall not use or permit the use of the Premises, or
any part thereof by itself, any subtenant or other occupant or User for the
following uses and/or purposes (collectively, the "Restricted Uses"): (1) for
the business of photographic, multilith or multigraph reproductions or offset
printing (but this subdivision "(1)" shall not be deemed to prohibit Tenant from
operating, on an incidental basis, a photocopy center as part of the Permitted
Use, subject to and in strict compliance with all applicable Legal Requirements
including Environmental Laws); (2) for manufacturing of any kind; (3) as a
restaurant or bar or for the sale of confectionery, beverages, sandwiches, ice
cream or baked goods or for the preparation, dispensing or consumption of food
or beverages in any manner whatsoever (except as part of the Permitted Use); (4)
as a retail bank offering banking services to the general public (i.e.,
off-the-street customers or potential customers, but excluding sales conducted
by phone or computer or banking services offered to Tenant and its officers,
directors and employees), but Tenant may use the Premises as a financial
services office including retail brokerage services; (5) as a trade school,
employment agency, labor union office, physician's, dentist's, medical or
psychiatric office, medical or dental laboratory, dance or music studio, or
health club or sports or exercise facility (except for a nurse's or first aid
station and except as part of the Permitted Use); (6) as a barber shop or beauty
salon except as part of the Permitted Use; (7) for the direct sale, at retail or
otherwise, of any goods or products of any sort or kind not incident to services
permitted by the Permitted Uses; (8) by any Legal Authority or instrumentality,
or by any foreign or domestic governmental or quasi-governmental entity
entitled, directly or indirectly, to diplomatic or sovereign immunity or not
subject to the service of process in, and the jurisdiction of, the courts of the
State of New Jersey; (9) for the conduct of an auction; (10) for gambling
activities; (11) for the conduct of obscene, pornographic, similar type or any
other disreputable activities or for the sale of obscene, pornographic or
similar type books, magazines, periodicals or other literature or materials, as
determined by Landlord in its sole judgment; (12) as a retail travel agency
offering travel and related services to the general public (i.e., off-the-street
customers or potential customers) but excluding sales conducted by phone or
computer or travel services offered to Tenant and its officers, directors and
employees; or (13) by or for any charitable, religious or other not-for-profit
organization's activities other than activities which are limited to office use
only; provided, however, that so long as consistent with the first class nature,
occupancy and character of the Building, the storefront, storefront displays and
window signage criteria set forth in the final sentence of this Section 3.5, and
subject to the provisions of subsection 3.1 (B)(4) and the final sentence of
Section 3.1(B), the Ground Floor Premises may be used by Tenant for the
Restricted Uses set forth in subdivisions (1), but only for an operation similar
to a "Kinko's", (3), (4), (7) and (12) above. Tenant agrees that Tenant's
storefront, storefront displays and window signage (paper signage being hereby
expressly prohibited in the Ground Floor Premises) shall be in keeping with a
first class office building with retail space in the Comparable Market.
Section 3.6 (A) In connection with and incidental to the Permitted Use
of the Premises, Tenant, at its sole cost and expense and upon compliance with
(1) all applicable Legal Requirements, including, without limitation, the
obtaining of all required licenses and permits, (2) all insurance requirements
and (3) the other provisions of this Lease, may use the fire
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stairwells (the "Fire Stairs") between contiguous floors of the Premises and
located above or below the Premises for the sole purpose of gaining ingress to,
and egress from, the floors of the Premises. In the event that Tenant so uses
the Fire Stairs, Tenant shall, at its sole cost and expense, install and
thereafter maintain and remove on the Expiration Date, a card key security
access system or other security system reasonably satisfactory to Landlord in
order to gain access from such Fire Stairs to the Premises, and agrees that it
shall not compromise such system or any life safety system of the Building. If
Tenant shall so use the Fire Stairs, Tenant shall keep the Fire Stairs
unobstructed and free of debris, refuse, trash and any other materials caused by
Tenant's use. Further in the event of such use by Tenant of the Fire Stairs,
Tenant agrees that the Tenant shall be solely responsible for insuring security
for and to the Premises from the Fire Stairs, and for insuring against any
unauthorized entry into, and access to and from the Premises from the Fire
Stairs except that Landlord shall remain liable and responsible for insuring
general Building security below the lowest floor and above the highest floor of
the Premises. Tenant further agrees that Landlord shall have no responsibility,
obligation or liability with respect to the furnishing of security for the
Premises and/or unauthorized entry into and access to and from the Premises from
the Fire Stairs except that Landlord shall remain liable and responsible for
insuring general Building security below the lowest floor and above the highest
floor of the Premises.
(B) Tenant shall indemnify and save harmless Landlord and all
"Landlord Indemnitees" (as defined in Section 9.1(B)) from and against any and
all claims of whatever nature against Landlord and/or the Landlord Indemnitees
arising from (1) any use by Tenant and its contractors, licensees, agents,
servants, invitees or employees of the Fire Stairs, as aforesaid, and (2) any
accident, injury or damage whatsoever caused to any person or to the property of
any person and occurring during the Term of the Lease, in or about the Fire
Stairs (unless resulting from an act, omission or negligence of Landlord, or its
contractors, licensees, agents, servants or employees) except that Landlord
shall remain liable and responsible for insuring general Building security below
the lowest floor and above the highest floor of the Premises.
(C) (1) Landlord has advised Tenant that Tenant's opening and
closing of the fire doors to the Fire Stairs, and the use of the Fire Stairs as
a means of ingress, egress and access to and from the various floors of the
Premises (the "Fire Stair Use") may interfere with the proper operating and
functioning of the Heating System and A/C System and its provision of the level
of cooled and/or ventilated air meeting the criteria described on Exhibit D
annexed to this Lease, as the Fire Stair Use is not deemed to be part of normal
office occupancy and Building- standard use of the Premises for the Permitted
Use, for purposes of the proper functioning and operation of these Systems as
set forth in subsection 24.4(A) of this Lease.
(2) Accordingly, if Landlord determines, in its reasonable
judgment, that the Fire Stairs Use has caused or contributed to failure
of the Heating System and/or the A/C System to operate or function
properly, Tenant acknowledges and agrees that Landlord shall not be
responsible to that extent that the Fire Stairs Use has caused or
contributed to such improper functioning of such System and the failure
of such System to meet the criteria set forth on Exhibit D, and as
provided in Subsection 24.2.(B).
Section 3.7 (A) Provided this Lease shall then be in full force and
effect, the named Tenant or a Permitted Tenant thereof shall then be the Tenant,
and "Tenant is in then occupancy" (as such term is defined in Section 1.3(C) of
this Lease) pursuant to the Occupancy Evidence furnished by Tenant to Landlord
of either (i) at least three (3) or more full floors or 126,000 rentable square
feet of the Office Premises or (ii) at least two (2) full floors or 84,000
rentable square feet of the Office Premises together with the Ground Floor
Premises, and Tenant shall have furnished Landlord with the Occupancy Evidence
with respect thereto, then Landlord agrees that it will not lease or permit the
use or occupancy of any space on the ground floor of the Building (1) by any
"Financial Services Institution" (as such term is defined below) provided that
Tenant is operating a stock brokerage or investment banking business in the
Building, or (2) for any "Noncompatible Use" (as such term is defined below) and
without limiting any other provision of this Lease which requires the Building
to be operated as first-class office building in the Comparable Market.
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(B) (1) For purposes of this Lease, the term "Financial
Services Institution" shall mean any stock brokerage or investment banking firm
other than Tenant or a Related Entity; it being agreed and understood, however,
that a "Financial Services Institution" shall specifically exclude any bank or
other like financial services organization, who shall lease, license or occupy
(1) any ground floor or retail space in the Building for retail banking or other
like retail financial services and use, occupy or lease a non-material portion
of such space for retail stock brokerage or investment banking operations
provided that stock brokerage or investment banking operations is ancillary to
such entity's main business (e.g., a commercial bank); and/or (2) any space in
the Building above the ground floor for office use.
(2) For purposes of this Lease, the term "Non-Compatible
Use" shall mean any use which is not in keeping with a first class
office building with retail space in the Comparable Market.
(C) (1) Notwithstanding anything contained in this Section
3.7, in the event Landlord desires to lease a portion of the ground floor of the
Building for a use which may be considered a Non-Compatible Use, and the
conditions of Section 3.7(A) shall then be in effect, Landlord shall advise
Tenant in writing of Landlord's intention to enter into such Lease, stating the
identity of the proposed use and if Tenant notifies Landlord within ten (10)
days after receipt of such notice that in its reasonable judgment the proposed
use is a Non-Compatible Use, Landlord shall not enter into such lease until it
shall furnish Tenant in writing with a "deal memo" setting forth the germane
terms and conditions of the proposed lease transaction, including the name of
the proposed tenant, the size and location of the ground floor space in question
and the term, rental and other financial terms of the proposed lease.
(2) Tenant shall have a period of fifteen (15) days after
receipt of such deal memo from Landlord regarding the proposed lease
transaction to elect whether or not to lease such ground floor premises
in question from Landlord on the terms and conditions set forth in the
deal memo, TIME BEING DEEMED OF THE ESSENCE as to such fifteen (15) day
period.
(3) (a) In the event that Tenant elects by written notice
to Landlord to lease the aforesaid portion of the ground floor from
Landlord on the terms and conditions set forth in the deal memo, such
portion of the ground floor premises shall be deemed added to and
included within the Premises demised under the Lease on such terms and
conditions, and Landlord and Tenant shall thereafter enter into an
appropriate amendment to this Lease adjusting the amount of the Fixed
Rent, Tenant's Operating Share, Tenant's Ground Floor Operating Share
and Tenant's Tax Share and making such other modifications to this
Lease as shall be required or deemed necessary as a result of such
inclusion.
(b) In the event that Tenant elects not to lease the
aforementioned ground floor premises by written notice to Landlord, or Tenant
fails to respond to Landlord's notice and deal memo within the aforesaid fifteen
(15) day period (such failure to respond within such fifteen (15) day period
being deemed by the parties hereto to be an election by Tenant not to lease such
ground floor premises), Landlord shall have the right to lease such ground floor
premises to the user in question on the terms and conditions as outlined in the
deal memo, and on such other terms and conditions which are consistent with such
deal memo, and such ground floor lease with such user in question shall not be
deemed to violate or contravene any of terms, conditions, covenants or
agreements set forth in this Section 3.7. In the event, however, that Tenant
shall notify Landlord within said fifteen (15) day period that the prospective
use is a Non- Compatible Use, and that it does not want Landlord to lease same,
the question as to whether or not the proposed use is a Non-Compatible Use shall
be resolved by Expedited Arbitration as provided in Article 34.
Section 3.8 (A) Landlord has advised Tenant and Tenant hereby
acknowledges having been so advised by Landlord that the Building and the
Property are a part of, and are included within a larger on-going residential
and commercial development project known as NEWPORT (the "Project").
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(B) Landlord hereby advises Tenant that certain streets and
roadways in the Project have been dedicated to the City of Jersey City. Further
Landlord hereby advises Tenant that certain portions of the Project, including
certain walkways and sidewalks, common area parks and recreational areas
(collectively the "Common Areas") have been or will be dedicated by property
owners in the Project to the Newport Property Owners Association (the "POA") for
use by the public and all property owners in the Project and those holding
rights by, through or under each such property owner (each a "POA Member"). Each
POA Member has certain rights, benefits and duties with regard to the POA and
the Project as are made particularly set forth in the Declaration, including
rights of ingress, egress and access to and from the Common Areas of the
Project. The POA maintains the Common Area(s) of the Project as are set forth in
the Declaration on behalf of the POA Members. Landlord further advises Tenant
that the "Lessor" (as such term is hereinafter defined) of the Land is a POA
Member.
(C) Landlord hereby agrees that for so long as this Lease is
in full force and effect, Tenant and Tenant's employees, agents, guests and
invitees shall be deemed entitled to, and shall be deemed a beneficiary of any
and all rights and benefits which Landlord has by, through or under Lessor as a
POA Member, to use and enjoy the Common Areas of the Project and to have access,
ingress and egress to and from the Property and all such Common Areas, in common
with the general public and other POA Members, and those holding by, through or
under such POA Members. Landlord agrees that it shall enforce or cause Lessor,
as a POA Member, to enforce all such rights on behalf of Tenant. Landlord
further agrees that it will comply, to the extent permissible under the
Declaration, or will use commercially reasonable efforts to cause the Land
Lessor to comply, with all obligations applicable to the Land Lessor under the
Declaration, not to modify or permit Land Lessor to modify the Declaration in
any manner which would materially adversely affect Tenant's rights under this
Lease and to use commercially reasonable efforts to enforce or cause the Land
Lessor to enforce, the other parties' obligations under the Declaration, if
Tenant's rights under this Lease would be materially adversely affected.
Section 3.9 Landlord hereby agrees that Tenant's lease of the Premises
includes the nonexclusive right to use in common with Landlord and other tenants
or other occupants of the Building and their agents, employees, guests,
subtenants, licensee and business invitees, the "common areas" of the Building,
which shall include (A) with respect to any partial floor which Tenant may lease
in the Building, the corridors and passenger and freight elevator lobbies of
such floors, (B) the public restrooms on such partial floors, (C) the sidewalks,
driveways, entrances, passages, plaza in the front of the Building, vestibules,
lobbies, halls, corridors, elevators and public stairways, and (D) other
portions of the Property that Landlord makes available from time to time for the
common use of the tenants or other occupants of the Building and their
respective agents, employees, guests, subtenants, licensee and business
invitees, subject to the terms and conditions of this Lease and the Rules and
Regulations.
ARTICLE 4
ALTERATIONS
Section 4.1 (A) (1) Tenant shall make no "Alterations" (as hereinafter
defined) in or to the Premises, of any nature, without Landlord's prior written
consent, which shall be granted or withheld in the manner as hereinafter
provided. For the purposes of this Lease, the term "Alteration" shall mean any
change, alteration, installation, addition or improvement, whether of a
structural or non-structural nature, which Tenant shall make or perform to the
Premises at any time during the Term, including all initial alterations,
installations, additions or improvements (collectively, the "Tenant's Initial
Alterations") proposed to be made by Tenant to adapt the Premises for the
Permitted Use.
(2) Landlord shall not unreasonably withhold its
consent to any Alterations, provided such Alterations: (a) will not
adversely affect the proper functioning of the Building Systems; (b)
will not result in a violation of, or require a change in, the
Certificates of Occupancy for the Building and/or the Premises except
as provided in
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Section 3.3; (c) will not affect the utility, rentability or outside
appearance of the Building or any part thereof (other than the
Premises) in any material adverse way, in the case of an Alteration
involving the Building Systems and/or the "Structural Elements" (as
hereinafter defined), nor weaken or impair (temporarily or permanently)
the Building's structural elements such as the roof, exterior/load
bearing walls (including exterior windows), foundation, structural
floor slabs, support columns and other common Building facilities
(collectively, the "Structural Elements"), or lessen the utility of the
Building (other than the Premises) upon their completion; and (d) will
not, when completed, physically affect any part of the Building outside
of the Premises (other than Building Systems by reason of connection
thereto or when this Lease expressly permits such Alterations to be
made outside the Premises) (the aforesaid Alterations set forth in (a)
through (d) hereof are hereinafter called "Non-Structural
Alterations").
(3) Tenant hereby acknowledges and agrees that it
shall be reasonable for Landlord to disapprove of any Alteration if the
performance of such Alteration will have an adverse affect on the
particular element or items of the Building in question, as set forth
in subsection 4.1(A)(2) above, provided Landlord makes such
determination in accordance with its commercially reasonable business
judgment and good construction practices.
(B) Landlord shall have the right, in its sole and absolute
discretion, to approve or disapprove of any Alteration(s) which are not
Non-Structural Alterations.
Section 4.2 Prior to making any Alterations, including, but not limited
to, Tenant's Initial Alterations, Tenant shall (1) submit to Landlord detailed
plans and specifications (including drawings for layout, architectural,
mechanical, structural, interior design, fixturing and finishing work) for each
proposed Alteration and shall not commence any such Alteration without first
obtaining Landlord's written approval of such plans and specifications (except,
however, Landlord's approval will not be required with respect to any
Non-Structural Alteration referred to in Section 4.9 hereof), which , in the
case of Non-Structural Alterations which meet the criteria set forth in Section
4.1(A) above, shall not be unreasonably withheld or delayed, and (2) obtain
worker's compensation insurance in statutory limits (covering all persons
employed and to be employed by Tenant, including Tenant's contractors and
subcontractors engaged in connection with any such Alteration), builder's risk
insurance covering all physical loss and other risks covered by the usual
extended coverage and "all risk" endorsements, and comprehensive public
liability (including property damage coverage), which builder's risk and
comprehensive public liability insurance policies shall be in such form, with
such companies, for such periods and such amounts as Landlord may require, and
shall as and to the extent provided in accordance with the provisions of Section
9.4(A), name as additional insureds, Landlord, its agents, any lessee under any
ground or underlying lease now or hereafter affecting the Land or the Building
(any such lease is called a "Superior Lease"), and any holder of any mortgage
which may now or hereafter affect any Superior Lease or the Land or the
Building, respectively (any such mortgage is called a "Mortgage").
Section 4.3 Tenant hereby acknowledges and agrees that Landlord's
review of, and Landlord's granting of its approval to, any plans and
specifications submitted to it under this Lease shall not constitute or be
deemed to constitute a judgment, acknowledgment, representation or agreement by
Landlord that such plans and specifications comply with the Legal Requirements
of any Legal Authorities and/or the requirements of any Insurance Bodies, and/or
that such plans and specifications will be approved by the Jersey City
Department of Buildings (the "Buildings Department") or any other Legal
Authority, respectively, as the case may be. Tenant further acknowledges and
agrees that all such compliance and approval requirements shall be Tenant's sole
obligation, as required by the provisions of this Article 4.
Section 4.4 (A) Tenant shall, before making any Alterations, at its
expense, obtain all permits, approvals and certificates (collectively, the
"Permits") required by any Legal Authority and (upon completion) certificates of
final approval thereof (subject to the provisions of Section 4.8) ,and shall
deliver promptly to Landlord duplicates of all such Permits, together
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with the "as-built" plans and specifications (or marked shop drawings) for such
Alterations. In that regard, Landlord agrees to reasonably cooperate with Tenant
in the signing of any documents and plans required to obtain any Permit,
provided, however, Landlord thereby incurs no liability, fee, cost or expense,
unless Tenant shall reimburse Landlord for same.
(B) (1) All Alterations shall be made and performed in
accordance with the plans and specifications therefor, as approved by Landlord,
and also in accordance with the reasonable rules and regulations established by
Landlord governing the manner in which work may be performed in the Building and
in effect at the time such Alterations are undertaken. Tenant hereby
acknowledges having received from Landlord a set of the initial rules and
regulations for which apply to the performance of Tenant's Initial Alterations
in the Building. Where a conflict exists between the terms of such rules and
regulations and the terms of this Lease, the terms of this Lease shall prevail.
No amendments or additions of a material nature to the aforesaid plans and
specifications shall be made without the prior written consent of Landlord to be
given on the same basis as for the original plans and specifications and within
the time provided in Section 4.11(A).
(2) All materials, equipment and fixtures to be
incorporated in the Premises as a result of such Alterations shall be
new and first quality. No such materials, equipment or fixtures shall
be subject to any liens, encumbrances, chattel mortgages or security
interests (as such terms are defined in the Uniform Commercial Code as
in effect in the State of New Jersey on the date hereof) or any other
title retention or security agreement. Tenant shall perform all
Alterations at Tenant's sole cost and expense, with contractors or
mechanics reasonably approved by Landlord subject to the provisions of
Section 4.11(B) and shall complete such Alterations within a reasonable
time after undertaking their performance.
(3) (a) All Alterations shall be done at such times as
Landlord may from time to time designate in accordance with good
construction practice and such rules and regulations for construction
referred to above. In accordance with the rules and regulations for
construction referred to above, Tenant shall have the right to perform
Alterations after 6:00 p.m. on Business Days or on days other than
Business Days after the Building is occupied and before such occupancy
at any hour on any day, if (i) Tenant has given Landlord reasonable
notice prior to commencing such Alteration and (ii) a representative of
Tenant's general contractor or construction manager (i.e., a job
foreman) shall be present at the Premises during such non-business
hours or on non-Business Days. Tenant agrees that Landlord shall have
the right to have a representative of Landlord present at the Premises
during performance of such Alteration Work after 6:00 p.m. on Business
Days or on days other than Business Days, and Tenant shall pay
Landlord's supervisory fee in connection therewith, which shall be
Landlord's actual costs and expenses for having such representative at
the Premises during such time, without any mark-up or profit.
(b) After the Building (or portions) are occupied,
all demolition work, core drilling or other comparably noisy work
performed within the Premises must be performed as expeditiously as
possible after 6:00 p.m. on Business Days or on days other than
Business Days, provided, however, that demolition work performed in
accordance with this Section 4.4 shall be deemed not to cause
interference with use of other portions of the Building solely by
reason of noise or vibrations caused by such work in the course of
performing the same in accordance with good construction practices,
provided, however, that Tenant shall take or cause its contractors to
take all commercially reasonable efforts to minimize such noise and
vibrations caused by the performance of such work. If any such
Alterations affect the Building's fire protection and safety systems,
Landlord shall have the right to require that such Alterations be
performed by Landlord and/or Landlord's contractor(s) at Tenant's cost
and expense, which cost and expense shall be commercially reasonable.
(C) Tenant shall not, at any time prior to or during the Term,
directly or
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indirectly employ, or permit the employment of, any contractor, mechanic or
laborer, whether in connection with any Alteration or otherwise, if in
Landlord's reasonable opinion, such employment would interfere, cause any
conflict, or create any difficulty, strike or jurisdictional dispute with, other
contractors, mechanics, or laborers engaged in the construction, maintenance or
operation of the Building by Landlord, Tenant or others. In the event of any
such interference, conflict, difficulty, strike, or jurisdictional dispute,
Tenant, upon demand of Landlord, shall cause all contractors, mechanics or
laborers causing the same to leave the Building as soon as is reasonably
practicable.
Section 4.5 Tenant hereby indemnifies and saves harmless Landlord from
and against any liability, loss, cost, damage and expense of every kind and
nature incurred by reason of, or arising out of, any and all mechanic's and
other liens filed in connection with any Alterations or repairs undertaken by
Tenant hereunder, including, without limitation, the liens of any conditional
sales, or chattel mortgages, title retention agreements, security agreements or
financing statements upon any materials, fixtures, furniture or equipment
installed in and constituting a part of the Premises. Any mechanic's or other
lien filed against the Premises or the Property for work claimed to have been
performed for, or materials claimed to have been furnished to Tenant shall be
discharged by Tenant by bonding, payment or otherwise, within thirty (30) days
after the filing of such lien. If Tenant shall fail to cause any such lien to be
discharged within the aforesaid period, then in addition to any other available
right or remedy, Landlord may, but shall not be obligated to, discharge same,
either by paying the amount claimed to be due, by deposit, bonding proceedings
or otherwise, and in such event Landlord shall be entitled, if it elects, to
compel the prosecution of an action for the foreclosure of such lien and to pay
the amount of the judgment in favor of the lienor, with interest, costs and
allowances. Any amount so paid, and all costs and expenses so incurred by
Landlord in connection therewith, shall constitute Additional Rent hereunder,
and shall bear interest thereon at the Interest Rate until paid by Tenant to
Landlord.
Section 4.6 (A) All Alterations, including Tenant's Initial
Alterations, and all fixtures (other than moveable trade fixtures, as
hereinafter provided), equipment (to the extent affixed to the realty other than
moveable trade fixtures), paneling, partitions, railings and like installations,
installed in the Premises at any time, shall, upon installation, become the
property of Landlord and shall remain upon and be surrendered with the Premises,
provided, however, that if Landlord notifies Tenant in writing (1) at the time
of Landlord's approval of any Alterations to the Premises requiring Landlord's
approval, including Tenant's Initial Alterations, or (2) within thirty (30) days
after Landlord has received notice of such Alterations where notice is required
under Section 4.9 hereof, then Landlord may, at Landlord's option, require
Tenant to remove any of the following Alterations: antenna installments on the
Building's roof, any outdoor "Signage" (more particularly described in Article
19 below), kitchens (excluding pantries), cafeterias, executive or "private"
lavatory facilities or bathrooms, vaults (but excluding reinforced floors),
sloping or terraced floors, internal staircases, private elevators, dumbwaiters,
and fire suppression or uninterrupted power supply systems (collectively,
"Specialty Alterations"), at the expiration or earlier termination of this
Lease. Notwithstanding the foregoing provisions of this Section 4.6(A), Tenant
hereby acknowledges and agrees that Tenant shall be required to remove from the
Premises all Alterations which Tenant has placed or installed therein without
Landlord's approval (where such approval was required pursuant to this Article
4) or without notice to Landlord or which are not performed in accordance with
the terms of this Article 4, and to repair the Premises as a result of such
removal, at the expiration or earlier termination of this Lease. Tenant shall
repair any damages to the Premises or the Building caused by the removal of any
of the aforesaid items, such repairs to be performed in a good and workmanlike
manner.
(B) All personal property, furniture, furnishings, moveable
equipment, moveable trade fixtures and moveable partitions supplied by or
installed by or on behalf of Tenant prior to and during the Lease Term
(collectively, the "Tenant's Property"), shall remain the property of Tenant and
Tenant shall, upon the Expiration Date, remove Tenant's Property from the
Premises but only to the extent that Tenant's Property (or any portion thereof)
is not affixed or attached to, or built into the Premises or any of the Building
Systems, and/or can be removed without damage to the Structural Elements; and
provided, however, that Tenant shall repair any damage to the Premises and the
Building caused by such removal, in a good and workmanlike
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manner. Any of the Tenant's Property not so removed by Tenant at or prior to the
Expiration Date, shall be deemed abandoned and may, at the election of Landlord,
either be retained by Landlord as Landlord's property or may be removed from the
Premises and stored or disposed of by Landlord, all at Tenant's sole risk and
expense.
(C) (1) Tenant has requested that Landlord perform the "Raised
Floor Work" (as such term is hereinafter defined) in the Office Premises as part
of the Phase 2 Base Building Work to be performed under this Lease.
(2) Landlord hereby agrees that Landlord and/or its
contractor(s) shall perform the Raised Floor Work in accordance with
Tenant's drawings dated February 11, 1999 and March 2, 1999 therefor
annexed hereto as Exhibit H and made a part hereof (collectively, the
"Raised Floor Plans"), on the following terms and conditions:
(a) Tenant shall reimburse Landlord, as Additional
Rent, for one-half (1/2) of the actual cost of performing the Raised
Floor Work, such payment to be made to Landlord within twenty (20)
days after receipt by Tenant of invoice(s) from Landlord (which may be
submitted to Tenant by Landlord during and/or upon conclusion of the
performance of such work), setting forth with reasonable specificity
the items or elements comprising the cost(s) for the performance of
such work; and
(b) at the expiration or earlier termination of
this Lease, Landlord shall, at Tenant's sole cost and expense to be
paid by Tenant as provided in subdivision (a) above, (i) remove or
cause the removal of all portions of the Raised Floor Work from the
Premises (if and to the extent such Raised Floor Work is not required
by Landlord or the next succeeding tenant in the Premises), and (ii)
restore the Premises, in which the Raised Floor Work was located
including the public bathrooms therein, to the condition which would
have existed without the making or installation of the Raised Floor
Work, such restoration work to include, but not be limited to, the
installation of new or reconfigured Building-standard plumbing and
bathroom fixtures in the common bathrooms, the adjustment of elevator
bucks or openings to their Building-standard level and the
readjustment of any elevator call buttons, etc., the lowering of the
Building's floors to their original height, the performance of any
floor patching and leveling and the removal of all ramps installed in
connection with the Raised Floor Work.
(3) For purposes of this Lease and this Section 4.6, the
term "Raised Floor Work" shall mean and be deemed to include the work
to be performed in the Office Premises (and not the Ground Floor
Premises) as shown and described on the Raised Floor Plans, including:
(a) the installation of a raised floor or floors of approximately
seven (7) inches above the existing floor heights of the Premises,
within the public bathrooms and the janitorial closet on each floor of
the Office Premises (but not the elevator lobbies or mechanical rooms;
it being agreed and understood that Tenant shall be responsible, at
Tenant's sole cost and expense, for raising the floor level within any
mechanical room, if desired by Tenant, and within the elevator lobbies
to match the raised level of the elevator door bucks); (b) the raising
of the elevator bucks or openings approximately seven (7) inches to
align with the floor level of the elevator lobbies which is to be
raised by Tenant and the adjustment of the elevator call buttons, as
required to reflect such adjustment of the elevator opening; (c) the
raising of all fire stair landings at all floor levels of the Premises
approximately seven (7) inches in order to match the level of the
raised floor; and (d) the reinstallation or reconfiguring of the
public bathroom plumbing and fixtures to accommodate the raised floor
in all public bathrooms in the Premises.
Section 4.7 Tenant shall reimburse Landlord for all reasonable
out-of-pocket costs and expenses incurred by Landlord in connection with the
review of Tenant's plans and specifications for Tenant's Initial Alterations by
any outside consultant engaged by Landlord to review the same, if Landlord's
in-house personnel are unable or incapable of reviewing the same, but Tenant
shall have no obligation to pay Landlord for Landlord's supervisory fee for
Tenant's performance of the Tenant's Initial Alterations. With respect to
Alterations made after Tenant's Initial
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Alterations, Tenant shall reimburse or pay Landlord for (A) all reasonable,
actual, out-of-pocket costs and expenses incurred by Landlord in connection with
the review of plans and specifications for such Alterations, and (B) Landlord's
supervisory fee for inspecting or supervising the progress of completion of
same, which fee shall be based on Landlord's actual costs and expenses for
having Landlord's representative at the Premises for such supervision, without
any mark-up or profit. Tenant also shall pay any fee (based on actual costs and
without any mark-up or profit) charged by any Lessor or Mortgagee which is not a
"Landlord Related Entity" (as defined in Section 12.5(A)(8)(b), in reviewing the
plans and specifications for such Alterations or inspecting the progress or
completion of the same.
Section 4.8 Upon the request of Tenant, Landlord, at Tenant's cost and
expense, shall join in any applications for any permits, approvals or
certificates required to be obtained by Tenant in connection with any permitted
Alteration (provided that the provisions of the applicable Requirement shall
require that Landlord join in such application) and shall otherwise cooperate
with Tenant in connection therewith, provided, however, that Landlord shall not
be obligated to incur any cost or expense, including, without limitation,
attorneys' fees and disbursements, unless Tenant shall reimburse Landlord for
the same, or suffer any liability in connection therewith.
Section 4.9 (A) Anything contained in this Lease to the contrary
notwithstanding, Landlord's consent shall not be required with respect to any
Non-Structural Alteration, provided that (1) such Non-Structural Alteration
meets the conditions set forth in clauses (a) through (d) of Section 4.1(A)
hereof, and (2) the estimated cost of the labor and materials for such
NonStructural Alteration shall not exceed (x) Two Hundred Fifty Thousand
($250,000) Dollars, either individually or in the aggregate with other
Non-Structural Alterations performed during the same construction project, and
(y) One Million ($1,000,000) Dollars in the aggregate for all NonStructural
Alterations constructed within any such twelve (12) month period; provided,
however, the $250,000 and $1,000,00 limitations, as aforesaid, shall be
increased annually by an amount equal to the percentage increase in the Consumer
Price Index for all Urban Consumers (CPI-U), New York-New Jersey-Long Island
(NY-NJ-CT), All Items, unadjusted 1982-1984=100, published by the Bureau of
Labor Statistics of the United States Department of Labor the ("Index") for the
month of January in each calendar year following the Rent Commencement Date over
the Index for the month of January, 2000.
(B) Tenant hereby agrees that at least ten (10) days prior
to making any of the aforesaid Non-Structural Alterations, Tenant shall submit
to Landlord for information purposes only and where customary to prepare same in
accordance with good construction practices, detailed plans and specifications
for such Non-Structural Alteration, as required by Section 4.2 hereof. Any such
Alteration shall otherwise be performed in compliance with the provisions of
this Article 4.
(C) Notwithstanding anything to the contrary contained in
this Article 4, Landlord hereby agrees that if any Non-Structural Alteration is
merely cosmetic (such as painting or wall covering) or relates to relocating
electric outlets or moving low voltage communications cables, the cost
limitations and notice provisions above contained in this Section shall not be
applicable thereto.
Section 4.10 Landlord hereby agrees that if: (A) Landlord shall fail
(1) to approve or disapprove of Tenant's plans and specifications for the
performance of any Alterations within the time periods specified in subsection
4.11(A) of this Lease after receipt of such plans and specifications, or (2) to
provide the cooperation described in Section 4.8 above with respect to Tenant's
obtaining necessary permits, approvals or certificates for the performance of
Tenant's Initial Alterations; or (B) violations against the Building (not caused
by or resulting from Tenant or Tenant's agents, employees or contractors)
interfere with Tenant's ability to obtain any Permits or a Certificate of
Occupancy; or (C) Landlord, its agents or contractors unreasonably and
materially interfere with or preclude the construction of Tenant's Initial
Alterations or materially interfere with access by Tenant, its agents and
contractors to the Building or any Building facilities or service (including
loading docks and freight elevators), or the use thereof during normal
construction hours, or (D) failure by Landlord to substantially complete (1) the
Phase 2
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Building Work with respect to the Office Premises and substantially complete the
Buildings Plans Work in accordance with the Building Plans, but only in regard
to the lobby area, exterior common areas (only to the extent necessary to
provide reasonable access to and from the Building) and all Building Systems in
operating condition ready to service the Office Premises, by November 1, 1999,
and/or (2) the Ground Floor Premises Work by October 1, 1999, respectively, and
such failure (I) is not caused by (x) "Unavoidable Delays" (as such term is
defined in Section 25.1(B), or (y) any action, inaction or other conduct,
whether negligent or intentional, of Tenant and/or its contractor(s), and (II)
actually causes Tenant to be delayed in (i) commencing, performing and
completing Tenant's Initial Alterations in the Office Premises and the Ground
Floor Premises, respectively, in accordance with Tenant's construction schedule
for the performance of the Tenant's Initial Alterations therein (the "Tenant's
Construction Schedule"), a copy of which Tenant shall provide to Landlord within
ninety (90) days after full execution and delivery of this Lease, or (ii)
occupying the Premises for the conduct of its normal business then for each day
that Tenant is actually delayed in commencing, performing and completing
Tenant's Initial Alterations in accordance with the Tenant's Construction
Schedule, or occupying the Premises as aforesaid, Tenant shall receive a
day-for-day abatement of the Fixed Rent to be paid hereunder. With respect to
the day for day abatement described in subsection 4.10(D)(1), the per diem
amount is agreed to be $20,165.88. With respect to the day for day abatement
described in subsection 4.10(D)(2), the per diem amount is agreed to be
$1,012.85.
Section 4.11 (A) If Landlord withholds any consent or approval required
by this Article 4, Landlord shall specify its reasons therefor. Landlord shall
consent or deny its consent to any plans, specifications or other requests
submitted by Tenant pursuant to this Article 4 within ten (10) Business Days (in
the case of any initial submission) or five (5) Business Days (in the case of
any amendment or re-submission) after Landlord's receipt thereof. If Landlord
fails to timely respond, and such failure to respond continues for more than two
(2) Business Days following Landlord's receipt of a notification from Tenant
that Landlord's failure to respond to Tenant's request shall result in the
plans, specifications or other requests being deemed approved by Landlord, then
Landlord's failure to respond within such two (2) Business Day period shall
constitute Landlord's approval of such plans, specifications or other requests.
No such consent by Landlord shall add to or detract from the provisions of this
Lease. If Landlord denies consent to any such plans, specifications or other
requests for such Alterations or consent to use of a contractor for which such
consent is required hereby, then, at Tenant's request, the reasonableness of
Landlord's denial shall be submitted to "Expedited Arbitration"(as such term is
defined in Section 34.2 below).
(B) Landlord's approval of any general contractor or other
contractor shall not be unreasonably withheld and shall depend on (x) whether
such general contractor or other contractor is competent, and (y) such general
contractor's or other contractor's reputation in the industry and previous
experience with Landlord, in the Building or otherwise. Tenant may submit to
Landlord a list of contractors for Landlord's approval prior to, or together
with, the submission to Landlord of Tenant's plans and specifications. Any
approval by Landlord of a contractor shall be effective during the performance
by such contractor of the particular Alteration in question, unless such
contractor's performance of such Alteration is of such inferior quality, and/or
such performance materially and adversely affects the Property, the Building,
the Building Systems and Structural Elements or is a threat to the life, health,
safety or property of Landlord and/or other tenants or occupants in the
Building, in which event Landlord, by written notice to Tenant, may revoke such
consent by specifying the reasons for such revocation in a revocation notice to
Tenant. Any contractor consent granted by Landlord hereinafter shall exist for
up to six (6) months following the completion of the Alteration in question,
unless such consent is revoked as provided in this Section 4.11(B).
Section 4.12 Tenant shall have the right, at Tenant's sole cost and
expense, and subject to the provisions of this Article, to (A) install private
bathroom facilities in the Premises and ventilate and exhaust same by connecting
Tenant's toilet exhaust ducts to Landlord's toilet exhaust riser system, (B)
exhaust kitchen or the Dining Facilities' fumes, at Landlord's election, through
the exterior wall of the Building or through space (to be provided by Landlord
at Landlord's direction) within a vertical shaft to the Building's roof for the
same purpose, in either case subject
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to applicable Legal Requirements, and install and maintain the necessary piping,
flues, vents, grease traps, kitchen hood fire extinguishing systems, wiring or
other equipment required in connection with Tenant's kitchen facilities, (C)
install a private elevator serving the Premises, (D) remove the existing
Building vision window glass, as necessary, on the north side of the Building,
in order to install duranodic air vents and/or louvers on such north side of the
Building within such windowed portions of the Premises, to provide fresh air
intake for Tenant's supplemental air conditioning system, which air vents and/or
louvers shall be of color, material, aesthetic quality and finish to match the
texture of the Building's facade and curtain wall, and/or [(F) as to the Ground
Floor Premises, install duranodic air vents or louvers at the western ground
floor facade of the Building where louvers already exist matching in color,
material, aesthetic quality and texture such existing louvers] the and all of
the above shall be performed in accordance with and subject to all applicable
Legal Requirements. All such Alterations shall be deemed to be Structural
Alterations for all purposes of the Lease.
Section 4.13 (A) Landlord hereby agrees that Tenant shall have the
right to the sole and exclusive use of the vertical shaft area(s) in the
Building's core space, in the locations as shown on the plans therefor
designated as the "Telephone Closet" annexed hereto as Exhibit I and made a part
hereof (collectively the "Communications Dedicated Shaft Area(s)"). Tenant shall
have the sole and exclusive use of the Communications Dedicated Shaft Area(s) at
all times during the term of this Lease, and Landlord will not use or permit
anyone else to use the Communications Dedicated Shaft Area(s) during the Lease
Term.
(B) Tenant shall have the right to install within the
Communications Dedicated Shaft Area(s), at Tenant's sole cost and expense,
dedicated telecommunications conduits and risers to service Tenant's
telecommunications requirements in the Premises, subject, however, to the
requirements of Article 4 regarding the performance of such installation work as
a Structural Alteration, including payment to Landlord of the fees and expenses
as set forth in Section 4.7 of this Lease. In the alternative, Tenant may
request that Landlord perform, and Landlord will perform on behalf of Tenant, as
Tenant's contractor, such electrical and telecommunications conduit and riser
installation work at Tenant's cost and expenses (which cost and expense shall
include a mark-up of ten (10%) percent profit and five (5%) percent overhead.
(C) Tenant shall be required, at Tenant's sole cost and
expense, to keep in good condition, maintain, repair and replace, if required
during the Term of this Lease, any of the telecommunications conduits and risers
installed within the Communications Dedicated Shaft Area(s) which shall be
deemed to be Alterations for all purposes of this Lease.
(D) Landlord agrees that Tenant shall have twenty-four
(24) hour access to the Communications Dedicated Shaft Area(s) for the purposes
of maintaining and servicing the telecommunications risers, conduits and other
installations therein, provided, however, that Landlord shall have the right to
have a supervisory person present during Tenant's access to the Communications
Dedicated Shaft Area(s) as aforesaid. Tenant agrees that Tenant shall pay
Landlord's supervisory fee therefore as provided in Section 4.7.
(E) The rights granted to Tenant in this Section shall
include Tenant's communications providers.
ARTICLE 5
MAINTENANCE AND REPAIRS
Section 5.1 (A) Except as specifically set forth in Section 5.2 below,
Tenant shall, throughout the Term, maintain the Premises and the fixtures and
appurtenances located therein or exclusively serving the Premises in good
condition, and repair and replace same as necessary, other than Building Systems
and Structural Elements, except as provided in the next sentence in this Section
5.1 . In all events, Tenant shall be responsible for all damage or injury to the
Premises or any other part of the Building and the Building Systems and the
Structural Elements, respectively, whether requiring structural or nonstructural
repairs, caused by or resulting from
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carelessness, omission, neglect or improper conduct of Tenant, Tenant's
subtenants, agents, employees, invitees or licensees, or which arise out of any
work, labor, service or equipment done for or supplied to Tenant or any
subtenant or other occupant or arising out of the installation, use or operation
of the property or equipment of Tenant or any subtenant. Tenant shall also
repair all damage to the Building and the Premises caused by the moving in and
out thereof of any of Tenant's Property.
(B) Tenant shall promptly make, at Tenant's sole cost and
expense, all repairs in and to the Premises for which Tenant is responsible, in
strict compliance with the provisions of Article 4 pertaining to Alterations
made by Tenant. If any such repairs for which Tenant is responsible affect the
Building Systems and/or the Structural Elements, Landlord shall have the right
to require that such repairs be performed by Landlord and/or Landlord's
contractor(s) at Tenant's reasonable cost and expense.
Section 5.2 (A) Landlord shall maintain in good working order and
repair the exterior and the Structural Elements of the Building, including the
structural portions of the Premises and all public portions of the Property, the
Heating System and the A/C System and the Building Systems serving the Premises,
the lobbies, entrances, landscaping, plazas, stairwells, elevators, (other than
private elevator(s) located within and serving the Premises) and common area
washrooms. In addition, Landlord shall make all repairs, restorations and
replacements, structural and otherwise, interior and exterior, ordinary and
extraordinary, in and to the Building and the Property the need for which arises
out of the acts or negligence of Landlord or its employees, agents, contractors
or invitees. All such repairs shall be made and performed with reasonable
diligence and so as to minimize interference with the conduct of Tenant's
business and access to the Premises, provided, however, nothing contained in
this sentence shall be deemed to impose upon Landlord any obligation to employ
contractors or labor at so-called overtime or other premium pay rates; provided,
further, however, that in cases where there is or will be a material
interference with Tenant's business or access to the Premises, or the health or
safety of the occupants of the Premises is or will be adversely affected,
Landlord shall employ contractors or labor at overtime or other premium pay
rates. In all other cases, at Tenant's written request and sole cost and
expense, Landlord shall employ contractors or labor at so-called overtime or
other premium pay rates and incur any other overtime costs or expenses in making
any repairs, alterations, additions or improvements. All repairs and
replacements made by Landlord shall be at least equal in utility and quality to
the utility and quality that the materials and equipment being replaced had when
they were initially installed. Tenant agrees to endeavor to give prompt written
notice of any repairs required to be made in the Premises for which Landlord may
be responsible hereunder and Landlord shall not be obligated to make such
repairs until it receives such written notice from Tenant or otherwise has
notice thereof. Landlord shall operate and maintain the Building as a first
class office building with retail premises similar to buildings of like age,
construction and size in the Comparable Market.
(B) Except as otherwise expressly provided in Section 25.2 of
this Lease, there shall be no allowance to Tenant for diminution of rental value
and no liability on the part of Landlord by reason of inconvenience, annoyance
or injury to business arising from Landlord or others making repairs,
alterations, additions or improvements in or to any portion of the Building or
the Premises or in and to the fixtures, appurtenances or equipment thereof, or
any portion of the Building Systems located therein. Landlord shall perform, or
cause the performance of all such work in a manner so as to minimize, to the
extent practicable and commercially reasonable, material interference with the
conduct of Tenant's business and access to the Premises in accordance with the
provisions of Section 5.2(A).
(C) Except as otherwise expressly provided in Section 25.2 of
this Lease, it is specifically agreed that Tenant shall not be entitled to any
setoff or reduction of Rent by reason of any failure of Landlord to comply with
any of the terms, provisions, conditions or the covenants or any other Article
of this Lease. Tenant agrees that Tenant's sole remedy at law in such instance
shall be by way of an action for damages for breach of contract. The provisions
of this Article 5 shall not apply in the case of fire or other casualty which
are dealt with in Article 10 hereof.
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ARTICLE 6
WINDOW CLEANING
Tenant will not clean nor require, permit, suffer or allow any window
in the Premises to be cleaned from the outside in violation of any applicable
Legal Requirements of any Legal Authority having or asserting jurisdiction over
the Building and/or the Premises. Landlord shall clean the exterior surfaces of
the outside windows of the Premises no less than four (4) times per year.
ARTICLE 7
LEGAL REQUIREMENTS; FLOOR LOADS
Section 7.1 (A) At all times during the Term, Tenant, at Tenant's sole
cost and expense, shall promptly comply with all present and future laws,
orders, directives and regulations including, but not limited to, all
environmental or hazardous substance laws (collectively, the "Legal
Requirements") of all state, federal, municipal and local governments,
departments, commissions, bureaus and boards and any directives or directions of
any public officer acting under or pursuant to law (each, a "Legal Authority";
collectively, the "Legal Authorities"), and any orders, rules or regulations of
any of the New Jersey Board of Fire Underwriters or the Insurance Services
Office or any similar body (each, an "Insurance Body"; collectively, the
"Insurance Bodies") which shall impose any violation, order or duty upon
Landlord or Tenant with respect to the Premises, if arising out of "Tenant's
particular manner of use or occupancy of or method of operation" (as defined
below) in the Premises, or with respect to the Building, if arising out Tenant's
particular manner of use or occupancy of or method of operation in the Premises
or the Building, respectively, as the case may be.
(B) Nothing herein shall require Tenant to make repairs or
Alterations to the Structural Elements of the Building, unless Tenant has by its
particular manner of use or occupancy of the Premises or method of operation
therein, violated any Legal Requirements with respect thereto.
(C) As used in this Article 7, the phrase "Tenant's
particular manner of use or occupancy or method of operation" shall mean use of
the Premises for other than the Permitted Use, any repairs to, or Alterations
of, the Premises performed by or on behalf of Tenant, any breach of a covenant,
agreement, term, provision or condition of this Lease on the part of Tenant to
be observed or performed, and any cause or condition created by or on behalf of
Tenant (as opposed to any Legal Requirement imposed on all office space
generally or, with respect to the Ground Floor Premises, imposed on all retail
space generally).
(D) In all events, Tenant shall promptly deliver to
Landlord true and complete copies of all documents and correspondence submitted
by Tenant to or received by Tenant from any Legal Authority or Insurance Body
with respect to the Premises or this Lease.
Section 7.2 Tenant may, contest and appeal any such Legal Requirements
without being in default hereunder provided Tenant indemnifies and holds
Landlord harmless from and against all damages, interest, penalties and
expenses, including, but not limited to, attorneys' fees, and court costs,
resulting from or arising out of such non-compliance or contest, and further
provided such contest is done with all reasonable promptness and provided such
appeal shall not subject Landlord to prosecution for a criminal offense or
constitute a default under any Superior Lease or Mortgage held by an entity
which is not a Landlord Related Entity, under which Landlord may be obligated,
or cause the Premises or any part thereof to be condemned or vacated.
Section 7.3 Tenant shall not do or permit any act or thing to be done
in or to the Premises which is contrary to or in violation of any Legal
Requirement, or which will invalidate
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or be in conflict with public liability, fire or other policies of insurance at
any time carried by or for the benefit of Landlord with respect to the Premises
or the Building, or which shall or might subject Landlord to any liability or
responsibility to any person or entity for personal injury or for property
damage. Landlord agrees that the use of the Premises by Tenant in a normal and
customary manner will not be a breach of the previous sentence. Tenant shall not
keep anything in the Premises except as now or hereafter necessary or desirable
in connection with the Permitted Use and as permitted by the fire department or
any Insurance Body having jurisdiction, and then only in such manner and such
quantity so as not to increase the rate for fire insurance applicable to the
Building, and shall not use the Premises in any manner (other than for the
Permitted Use) which will increase the insurance rate for the Building.
Section 7.4 Tenant shall pay all costs, expenses, fines, penalties or
damages, which may be imposed upon Landlord by reason of Tenant's failure to
comply with the provisions of this Article 7 and, if by reason of such failure,
the fire insurance rate shall, at the time in question, be higher than it
otherwise would be, then Tenant shall reimburse Landlord, as additional rent
hereunder, for that portion of all fire insurance premiums thereafter paid by
Landlord which shall have been charged because of such failure by Tenant to
comply with the terms of this Article 7. In any action or proceeding wherein
Landlord and Tenant are parties, a schedule or "make-up" of rate for the
Building or Premises issued by any Insurance Body or other body making fire
insurance rates applicable to the Premises shall be prima facie evidence of the
facts therein stated and of the several items and charges in the fire insurance
rate then applicable to said Premises.
Section 7.5 (A) In amplification of and supplementing the Legal
Requirements with which Tenant is required to comply, and without limitation,
Tenant acknowledges the existence of federal, state and local environmental
laws, rules and regulations (collectively, the "Environmental Laws"), including,
without limitation, the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq.
("ISRA") and the Spoil and Compensation and Control Act N.J.S.A. 58:10-23.11 et
seq. Tenant agrees, from and after the date hereof, to act in compliance with
all such Environmental Laws. Tenant shall not perform any acts in violation of
Environmental Laws. Tenant represents to Landlord that Tenant's Standard
Industrial Classification (SIC) Number as used on its Federal Tax Return will
not, under the applicable rules and regulations existing as of the date hereof,
subject the Premises or the Property to ISRA applicability. Tenant represents to
Landlord and covenants that Tenant will not change to an operation with a
different SIC Number without Landlord's prior written consent. Any such proposed
change shall be sent in writing to Landlord sixty (60) days prior to the
proposed change. Landlord may deny consent if, inter alia, the different SIC
Number would subject the Premises or the Property to ISRA applicability.
Notwithstanding anything to the contrary set forth herein, in the event that
Tenant's SIC Number or the SIC Number of any subtenant or other party holding
by, through or under Tenant (including any assignee hereof) shall subject the
Premises or the Property to ISRA applicability, the same shall not constitute a
violation hereunder if the criteria of the so-called "office exemption"
established under N.J.A.C. 7:26B-2.1(b)(2) shall be satisfied and the entity
whose SIC Number is in question certifies to Landlord in writing and under oath
that such entity satisfies the exemption criteria.
(B) Upon the occurrence of any event requiring Tenant's
compliance with ISRA, or if Landlord by reason of any act or omission or failure
to act or not act on the part of Tenant, shall be required to comply with ISRA,
Tenant shall make all necessary filings with the New Jersey Department of
Environmental Protection ("DEP") and any other relevant Legal Authority and, at
its own expense, shall cause all necessary tests and studies to be performed.
Landlord shall complete such documents and otherwise cooperate (provided such
cooperation does not subject Landlord to any fee, cost, expense or liability or
require performance by Landlord of Tenant's obligations hereunder) as may be
reasonably requested by Tenant or required by the ISRA requirements of the DEP.
In the event that the DEP or any other Legal Authority shall require a clean-up
of the Premises or the Property or other remedial action in order to comply with
any Environmental Law, or in the event of the imposition of any fine or penalty
arising out of an environmental violation affecting the Premises, then, if and
only if such cleanup or other remedial actions shall have been caused by the
activities or occurrences of Tenant, its agents, employees, invitees or
independent contractors, and expressly excluding such obligations,
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remedial actions, fines and penalties actually resulting from the conduct of
Landlord, its employees, agents, licensees or independent contractors, whether
before, during or after the Term hereof, arising out of performance of
Landlord's obligations under this Lease or otherwise, Tenant shall assume
responsibility, at its sole cost and expense, for such clean-up obligations,
remedial actions, fines and penalties not expressly excluded above.
(C) Tenant hereby agrees to execute such documents and
provide such information as Landlord reasonably deems necessary and to make such
applications as Landlord reasonably requires to assure Tenant's compliance with
ISRA or with any Environmental Laws, rules or regulations of any relevant Legal
Authority. Tenant shall bear all costs and expenses incurred by Landlord
associated with any required ISRA compliance resulting from Tenant's use of the
Premises or any acts and/or omissions which Tenant, its agents, employees,
invitees or independent contractors initiate, including, without limitation,
State agency fees, engineering fees, clean-up costs, filing fees and suretyship
expenses. As used in this Lease, ISRA compliance shall include applications for
determinations of nonapplicability by the appropriate Legal Authority.
(D) Tenant agrees to indemnify and hold Landlord harmless
from and against any fines, suits, proceedings, claims and actions and any other
cost, expense or liability of any kind arising under Environmental Laws, rules
or regulations resulting from Tenant's use of the Premises or any acts and/or
omissions which Tenant, its agents, employees, invitees or independent
contractors initiate, Tenant's failure to comply with this Section 7.5 or
Tenant's failure to provide all information, make all submissions and take all
actions required by any Legal Authority. Landlord agrees to indemnify and hold
Tenant harmless from and against any fines, suits, proceedings, claims and
actions, and any other cost, expense or liability of any kind arising under
Environmental Laws, rules or regulations resulting from Landlord's construction
or management of the Building or any other acts and/or omissions of Landlord.
(E) Tenant shall not place a load upon any floor of the
Premises exceeding the floor load per square foot area which it was designed to
carry (i.e., one hundred (100) pounds per square foot live load) and which is
allowed by law. Landlord reserves the right to prescribe the weight and position
of all safes, business machines and mechanical equipment. Such installations
shall be placed and maintained by Tenant, at Tenant's expense, in settings
sufficient, in Landlord's judgment, to absorb and prevent vibration, noise and
annoyance. Tenant shall be required to obtain Landlord's prior written consent
(as provided in Article 4) to any increasing of the floor load capacity of the
floor(s) of the Premises resulting from the performance of an Alteration
hereunder, any such increasing of the floor load capacity being deemed a
Structural Alteration for all purposes of this Lease.
Section 7.6 (A) Landlord shall develop the Property, construct the
Building and thereafter maintain those portions of the Property which Landlord
is required to maintain and repair in accordance with Section 5.2, in compliance
with all then-existing Environmental Laws and the "Newport Remedial Plan" (as
defined in Section 36.7), and in compliance with all then-existing Legal
Requirements, including the then-existing requirements of the "ADA" (as defined
in Section 7.6 (B) below). Tenant shall perform or cause to be performed the
Tenant's Initial Alterations and other improvements or alterations made or to be
made by Tenant in accordance with the express terms of this Lease in compliance
with all then-existing Environmental Laws and Legal Requirements.
(B) Landlord shall be responsible, during the Term, for
compliance in the Building's common areas with Title III of the Americans with
Disabilities Act of 1990 and the Accessibility Guidelines for Buildings and
Facilities issued pursuant thereto, as modified and amended from time to time
(collectively, the "ADA"), subject to Tenant's express obligation to comply with
the ADA and other Legal Requirements as set forth in this Article 7 or elsewhere
in this Lease, and Landlord agrees to indemnify and hold Tenant harmless from
and against any fines, suits, proceedings, claims and actions, and any other
cost, expense or liability of any kind arising from any failure by Landlord to
so comply as aforesaid.
(C) Tenant shall be responsible during the Term, for
compliance with
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ADA within the Premises subject to Landlord's obligation to complete Landlord's
Work in compliance with then-existing requirements of the ADA.
ARTICLE 8
SUBORDINATION; ATTORNMENT; MODIFICATIONS
Section 8.1 (A) This Lease is and shall be subject and subordinate to
all Superior Leases and to all Mortgages which may now or hereafter affect such
Superior Leases or the Land and/or the Building and to all renewals,
modifications, consolidations, replacements and extensions of any such Superior
Leases and Mortgages, provided however, and only on the condition that (1) a
mortgagee under a Mortgage (a "Mortgagee") shall execute and deliver to Tenant
for Tenant's signature an agreement which shall provide that, if there shall be
a foreclosure of its Mortgage, such Mortgagee will not make Tenant a party
defendant to such foreclosure, or to evict Tenant, disturb Tenant's possession
under this Lease, or terminate or disturb Tenant's leasehold estate or rights
hereunder, and will recognize Tenant as the direct tenant of such Mortgagee on
the same terms and conditions as are contained in this Lease, subject to the
provisions hereafter set forth, provided no Event of Default shall at the time
have occurred and be continuing hereunder, or (2) a lessor under a Superior
Lease (a "Lessor") shall execute and deliver to Tenant for Tenant's signature an
agreement to the effect that if its Superior Lease shall terminate or be
terminated for any reason, Lessor will not make Tenant a party defendant in any
action to terminate such Superior Lease, or to evict Tenant, disturb Tenant's
possession under this Lease, or terminate or disturb Tenant's leasehold estate
or rights hereunder, and will recognize Tenant as the direct tenant of such
Lessor on the same terms and conditions as are contained in this Lease, subject
to the provisions hereafter set forth, provided no Event of Default shall at the
time have occurred and be continuing hereunder (any such agreement, or any
agreement of similar import, from a Mortgagee or a Lessor, as the case may be,
is called a "Non-disturbance Agreement"). This clause shall be self-operative
and no further instrument of subordination shall be required by any Lessor or
Mortgagee, respectively, as the case may be. In confirmation of such
subordination, Tenant shall execute promptly any certificate that Landlord may
request if same is consistent with the provisions of this Lease. If a Mortgagee
of any first priority Mortgage requests or requires that this Lease not be made
subject or subordinate to any other Mortgage, then, notwithstanding anything to
the contrary herein contained, for so long as such request or requirement
continues, this Lease shall be superior to any such subordinate Mortgage.
(B) Tenant shall not do anything in breach of this Lease
which would cause Landlord to be in default under any Superior Lease or
Mortgage, or omit to do anything Tenant is obligated to do under the terms of
this Lease so as to cause Landlord to be in default thereunder.
(C) Any Non-disturbance Agreement may be made on the
condition that and Tenant hereby agrees that neither the Mortgagee nor the
Lessor, as the case may be, nor anyone claiming by, through or under such
Mortgagee or Lessor, as the case may be, including a purchaser at a foreclosure
sale, or of a deed or assignment in lieu thereof, or any nominee or designee
thereof (each a "Successor Landlord"), shall be, as of the date such Successor
Landlord shall succeed to the position of Landlord under this Lease (the
"Succession Date"):
(1) liable for any previous act or omission
of Landlord under this Lease, except to the extent that such
act or omission continues after the Succession Date (in which
event such act or omission shall be deemed to have occurred on
the Succession Date); or
(2) subject to any credit, claim,
counterclaim, demand, defense or offset, not expressly
provided for in this Lease and asserted with reasonable
promptness, which Tenant may have or shall have theretofore
accrued to Tenant against Landlord prior to the Succession
Date; or
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(3) bound by any previous modification of
this Lease, not expressly provided for in this Lease, or by
any previous prepayment of more than one (1) month's Fixed
Rent to Landlord (or its predecessors-in-interest) not
expressly provided for in this Lease, unless such modification
or prepayment shall have been expressly approved in writing by
any Lessor or any Mortgagee (the name of which Lessor or
Mortgagee was theretofore provided in writing to Tenant)
through or by reason of which such Successor Landlord shall
have succeeded to the rights of Landlord under this Lease; or
(4) obligated to perform any alteration or
improvements of the Premises not expressly required under this
Lease; or
(5) responsible for any monies owing by
Landlord to the credit of Tenant unless such monies have come
into actual possession of a Successor Landlord, and Tenant is
entitled to the return or payment of such monies pursuant to
the terms of this Lease; or
(6) bound by any obligation to make any
payment to Tenant, or be subject to any credits, except for
(i) services, repairs, maintenance and restoration provided
for under this Lease to be performed after the Succession Date
and (ii) for payments or credits to which Tenant would be
entitled by reason of acts, omissions or circumstances arising
after the Succession Date or continuing after the Succession
Date (provided, however, that the Successor Landlord shall
only be obligated for payments or credits accruing on and
after the Succession Date) pursuant to the express provisions
of this Lease, or by reason of Article 2 relating to
Additional Charges; it being expressly understood, however,
that the Successor Landlord shall not be bound by any
obligation to make payment to Tenant with respect to
construction performed by or on behalf of Tenant at the
Premises but shall be subject to Section 36.9(B)(7) and
Section 42.2; or
(7) required to remove any person occupying
the Premises, or any part thereof.
The provisions set forth in clause (C) above and the reference in clause (A)
above to Tenant not being in default) shall not apply if Landlord or a Landlord
Related Entity is the Successor Landlord.
(D) If required by a Mortgagee or a Lessor, within seven
(7) days after notice thereof, Tenant shall join in any Non-Disturbance
Agreement to indicate its concurrence with the provisions thereof and its
agreement set forth in Section 8.2 hereof to attorn to such Mortgagee or Lessor,
as the case may be, as Tenant's landlord hereunder. Tenant shall promptly so
accept, execute and deliver any Non-Disturbance Agreement proposed by any such
Mortgagee or Lessor which conforms to the provisions of this Article 8, or which
is substantially identical to the form(s) of Non-Disturbance Agreement annexed
to this Lease as Exhibit J and made a part hereof, or any other agreement that
Landlord or such Mortgagee or Lessor may request in confirmation of such
subordination if same is consistent with the provisions of this Lease. Any such
Non-disturbance Agreement may also contain other terms and conditions as may
otherwise be required by such Mortgagee or Lessor, as the case may be, which do
not increase Tenant's monetary obligations under this Lease, or adversely affect
or diminish the rights of Tenant under this Lease, except to a de minimis
extent, or increase the other obligations of Tenant under this Lease, except to
a de minimis extent. The names of all Lessors and Mortgagees under Superior
Leases or Mortgages encumbering the Property as of the execution date hereof are
as set forth in Schedule 4 annexed to this Lease and made a part hereof, each of
which is a Landlord Related Entity. Landlord will deliver to Tenant, for
Tenant's execution, concurrently with the execution and delivery of this Lease,
Non-disturbance Agreements from the existing Lessors and Mortgagees.
Section 8.2 (A) If at any time prior to the expiration of the Term, any
Superior Lease
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shall terminate or be terminated for any reason, or any Mortgagee comes into
possession of the Land and/or the Building or the estate created by any Superior
Lease, by receiver or otherwise, this Lease shall continue in full force and
effect as a direct lease between Tenant and the then owner of the Land and/or
the Building or its nominee or designee or a purchaser at a foreclosure sale or
transferee in lieu thereof, upon all of the terms, covenants and conditions of
this Lease, and Tenant agrees, at the election and upon demand of any owner of
the Land and/or the Building, or its nominee or designee or a purchaser at a
foreclosure sale or transferee in lieu thereof, to attorn, from time to time, to
any such owner, Lessor or Mortgagee or any person acquiring the interest of
Landlord as a result of any such termination, or as a result of a foreclosure of
the Mortgage or the granting of a deed in lieu of foreclosure, upon the then
executory terms and conditions of this Lease, subject to the provisions of
Section 8.1 hereof, for the remainder of the Term, provided that such owner,
Lessor or Mortgagee, respectively, as the case may be, or receiver caused to be
appointed by any of the foregoing, shall then be entitled to possession of the
Premises.
(B) The provisions of this Section 8.2 shall inure to the
benefit of any such owner, Lessor or Mortgagee, and shall apply notwithstanding
that, as a matter of law, this Lease may terminate upon the termination of any
Superior Lease, and shall be self-operative upon any such demand, and no further
instrument shall be required to give effect to said provisions. Tenant, however,
upon demand of any such owner, Lessor or Mortgagee, shall execute, at Tenant's
expense, from time to time, instruments, in recordable form in confirmation of
the foregoing provisions of this Section 8.2 and consistent with the provisions
of this Section, satisfactory to any such owner, Lessor or Mortgagee,
acknowledging such attornment and setting forth the terms and conditions of its
tenancy. Nothing contained in this Section 8.2 shall be construed to impair any
right otherwise exercisable by any such owner, Lessor or Mortgagee.
Section 8.3 As long as any Superior Lease or Mortgage shall exist,
Tenant shall not seek to terminate this Lease by reason of any act or omission
of Landlord until Tenant shall have given written notice of such act or omission
to all Lessors and Mortgagees (the names of which Lessors and Mortgagees were
theretofore provided in writing to Tenant) at such addresses as shall have been
furnished to Tenant and, if any such Lessor or Mortgagee, as the case may be
(other than a Lessor or Mortgagee which is a Landlord Related Entity), shall
have notified Tenant within a reasonable time, but no more than thirty (30) days
following receipt of such notice, of its intention to remedy such act or
omission, until a reasonable period of time shall have elapsed following the
giving of such notice, during which period such Lessors and Mortgagees shall
have the right, but not the obligation, to remedy such act or omission. Such
reasonable period of time shall not exceed thirty (30) days in the case of a
monetary default or sixty (60) days in the case of a non-monetary default,
except that in the case of a non-monetary default which cannot reasonably be
cured within such sixty (60) day period, if such Lessor or Mortgagee, as the
case may be, shall have commenced to remedy such act or omission within such
sixty (60) day period and shall thereafter proceed with reasonable diligence,
subject to Unavoidable Delays, to remedy such act or omission, then such sixty
(60) day period shall be extended until such act or omission is remedied (it
being understood that if Tenant shall duly give the notice to all Mortgagees
required by this Section 8.3 but the Mortgagees shall not give Tenant notice
within such 30-day period of its intention to commence to remedy such act or
omission, or cause the same to be remedied as above provided, then Tenant may
exercise all of its rights and remedies under this Lease and/or at law to
terminate this Lease by reason of such act or omission of Landlord).
Section 8.4 If, in connection with the procurement, continuation or
renewal of any financing for which the Property or the interest of the lessee
therein under a Superior Lease represents collateral in whole or in part, an
institutional lender shall request reasonable modifications of this Lease as a
condition of such financing, Tenant will not withhold its consent thereto
provided that such modifications do not: (A) increase the items of Rent payable
under this Lease; or (B) adversely affect any rights of Tenant under this Lease
(except to a de minimis extent); or (C) diminish the obligations of Landlord
under this Lease (except to a de minimis extent).
ARTICLE 9
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INSURANCE; PROPERTY LOSS; DAMAGE; REIMBURSEMENT;
INDEMNITY; EXCULPATION AND NON-LIABILITY
Section 9.1 (A) Tenant shall not do or permit any act or thing to be
done upon the Premises which may subject Landlord to any liability or
responsibility for injury or damage to persons or property, but shall exercise
such control over the Premises as to fully protect Landlord against any such
liability.
(B) Tenant shall indemnify and save harmless Landlord and
Landlord's members, partners, shareholders, officers, directors, employees,
agents and contractors (collectively, the "Landlord Indemnitees") from and
against any and all claims of whatever nature against Landlord and/or the
Landlord Indemnitees arising from (1) any accident, injury or damage whatsoever
caused to any person or to the property of any person and occurring during the
Term in the Premises, (2) any accident, injury or damage whatsoever occurring
outside the Premises but anywhere within or about the Property, where such
accident, injury or damage results or is claimed to have resulted from an act,
omission or negligence of Tenant, its contractors, licensees, agents, servants,
invitees or employees, and (3) any breach, violation or non-performance of any
term, covenant, condition or agreement in this Lease set forth on the part of
Tenant or parties claiming by or under Tenant to be fulfilled, kept, observed or
performed. Tenant's liability under clauses (2) and (3) of this Section 9.1(B)
extends to the acts and omissions or negligence of any subtenant or User, and
any agent, contractor, employee, invitee or licensee of any such subtenant or
User. In case any action or proceeding is brought against Landlord by reason of
any such claim, Tenant, upon written notice from Landlord, will, at Tenant's
expense, resist or defend such action or proceeding by counsel selected by
Tenant's insurance carrier or, otherwise, by counsel approved by Landlord in
writing, such approval not to be unreasonably withheld.
(C) The foregoing indemnity and hold harmless agreement in
clause (B) above shall include indemnity from and against any and all liability,
loss, cost, damage and expense of any kind or nature incurred in or in
connection with any such claim or proceeding brought thereon and the defense
thereof including, without limitation, reasonable attorneys' fees and
disbursements. Landlord, from time to time, may submit to Tenant copies of
Landlord's legal bills in connection with the foregoing, and Tenant, upon
receipt of such bills, shall promptly pay to Landlord the amount shown thereon
as additional rent. This indemnity and hold harmless agreement shall survive the
expiration or earlier termination of this Lease.
(D) Tenant shall be relieved of its obligation and
liability to Landlord under any provisions indemnifying Landlord against claims,
liabilities, costs and expenses if and to the extent that, and so long as,
Tenant provides, and maintains in force, insurance for the benefit of Landlord,
enforceable by Landlord as an additional insured, against such claims,
liabilities, costs and expenses. Nothing contained herein shall be construed to
require Tenant to indemnify, defend or hold Landlord harmless to the extent that
any damage or claim is a result of the acts or omissions of Landlord or any of
its contractors, licensees, employees, servants or agents (subject to Sections
9.6 and 9.8 hereof).
(E) Landlord shall indemnify and save harmless Tenant and
Tenant's members, partners, shareholders, officers, directors, employees, agents
and contractors (collectively, the "Tenant Indemnitees") from and against any
and all claims of whatever nature against Tenant and/or the Tenant Indemnitees
arising from (1) any accident, injury or damage whatsoever caused to any person
or to the property of any person and occurring during the Term in the Building
and the Property outside the Premises (except as provided in Section 9.1(B)(2)
above), or (2) accident, injury or damage whatsoever occurring inside the
Premises where such accident, injury or damage results or is claimed to have
resulted from an act, omission or negligence of Landlord, its contractors,
licensees, agents, servants, invitees or employees, or (3) any breach, violation
or non-performance of any term, covenant, condition or agreement in the Lease
set forth on the part of Landlord to be fulfilled, kept, observed or performed.
In case any action or proceeding is brought against Tenant by reason of any such
claim, Landlord, upon written notice from Tenant, will, at Landlord's expense,
resist or defend such action or proceeding by counsel selected by Landlord's
insurance carrier or, otherwise, by counsel approved by Tenant in writing, such
approval not to
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be unreasonably withheld.
(F) The foregoing indemnity and hold harmless agreement in
clause (E) above shall include indemnity from and against any and all liability,
loss, cost, damage and expense of any kind or nature incurred in or in
connection with any such claim or proceeding brought thereon and the defense
thereof, including, without limitation, reasonable attorneys' fees and
disbursements. Tenant, from time to time, may submit copies of Tenant's legal
bills in connection with the foregoing, and Landlord shall promptly pay to
Tenant the amounts thereon.
(G) This indemnity and hold harmless agreement shall
survive the expiration or earlier termination of this Lease.
(H) Landlord shall be relieved of its obligation and
liability to Tenant under any provisions indemnifying Tenant against claims,
liabilities, costs and expenses if and to the extent that, and so long as,
Landlord provides, and maintains in force, insurance for the benefit of Tenant,
enforceable by Tenant as an additional insured, against such claims,
liabilities, costs and expenses. Nothing contained herein shall be construed to
require Landlord to indemnify, defend or hold Tenant harmless to the extent that
any damage or claim is a result of the acts or omissions of Tenant or any of its
contractors, licensees, employees, servants, agents or invitees (subject to
Sections 9.6 and 9.8 hereof).
Section 9.2 Landlord or its agents shall not be liable for any damage
to property of Tenant or of others entrusted to employees of the Building, nor
for loss of or damage to any property of Tenant by theft or otherwise, nor for
any injury or damage to persons or property resulting from any cause of
whatsoever nature, unless caused by or due to the negligence of Landlord, its
agents, servants, employees, contractors, licensees or invitees.
Section 9.3 If at any time any windows of the Premises are temporarily
closed, darkened or bricked up for any reason whatsoever including, but not
limited to, Landlord's own acts due to repairs or other work being performed by
Landlord in accordance with this Lease or other tenants in the Building as may
be permitted by such tenant's leases (or permanently closed, darkened or bricked
up, if required by Legal Requirements), Landlord shall not be liable for any
damage Tenant may sustain thereby and Tenant shall not be entitled to any
compensation therefor nor abatement or diminution of rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction.
Landlord shall use commercially reasonable efforts to minimize the amount of
time that the windows of the Premises are so closed, darkened or bricked up,
subject to Legal Requirements and Unavoidable Delays.
Section 9.4 (A) Tenant shall obtain and keep in full force and effect
during the Term:
(1) a policy of commercial general liability and
property damage (1973 occurrence or successor form) insurance with
broad form liability coverage, including contractual liability
coverage, covering Tenant's obligations under Section 9.1(A), and
personal injury liability coverage, against claims for personal injury,
death and/or property damage occurring in or about the Premises and/or
the Property and under which the insurer agrees to indemnify and hold
Landlord harmless from and against, among other things, all cost,
expense and/or liability arising out of or based upon any and all
claims with respect to accidents, injuries and damages covered by
Tenant's indemnity described in Section 9.1(B), and which policy shall
also contain a provision that no act or omission of Tenant shall affect
or limit the obligation of the insurance company to pay the amount of
any insured loss sustained, and minimum limits of liability under such
policy including products liability and completed operations shall be a
combined single limit with respect to each occurrence in an amount of
not less than Three Million and 00/000 ($3,000,000.00) Dollars for
injury (or death) and damage to property (or in any increased amount
reasonably required by Landlord, if consistent with the requirements of
clause (D) of this Section 9.4); it being agreed and understood that
such limit of coverage may be provided by Tenant's commercial general
liability and property damage policy in conjunction with an umbrella or
excess liability policy;
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(2) insurance against loss or damage by fire and such
other risks and hazards (including, during the period of construction
of any Tenant's Property and Alterations, casualty insurance in the
so-called "Builder's Risk Completed Value Non-Reporting Form",
burglary, theft and breakage of glass within the Premises) as are
insurable under the available standard forms of "all risk" insurance
policies, to Tenant's Property and Alterations for the full replacement
cost value thereof (including an "agreed amount" endorsement); and
(3) worker's compensation insurance, in such amounts
as shall be required, from time to time during the Lease term, by Legal
Requirements of any applicable Legal Authority.
(B) For purposes of this Lease, Tenant hereby agrees that
Landlord, Landlord's managing agent, if any, all Lessors and Mortgagees,
respectively, as the case may be, shall be designated as additional insureds and
the beneficiaries of the indemnification furnished by Tenant in Section 9.1(B)
and Section 9.1(C) above, and that each policy of insurance shall contain a
provision that no act or omission of Tenant shall affect or limit the obligation
of the insurance company to pay the amount of any insured loss sustained, and
shall provide that it will be non-cancelable with respect to the additional
insureds without thirty (30) days written notice to such insureds by certified
mail, return receipt requested, which notice shall contain the policy number and
the names of the insureds and certificate holders. A certificate of each of the
required policies shall be delivered to Landlord on or prior to the Commencement
Date or any earlier date of entry upon the Premises by Tenant or anyone claiming
by or under Tenant.
(C) All insurance required to be carried by Tenant pursuant to
the terms of this Lease shall be effected under valid and enforceable policies
issued by reputable and independent insurers licensed to do business in the
State of New Jersey, and rated in Best's Insurance Guide or any successor
thereto (or if there be none, an equivalent organization having a national
reputation) as having a general policyholder rating of "A-" and either (1) a
financial rating of at least "VIII", or (2) a policy holder surplus of at least
Fifty Million and 00/00 Dollars ($50,000,000.00).
(D) Landlord may, at any time and from time to time during the
Term, require that the amount of the insurance to be maintained by Tenant
hereunder be increased, so that the amount thereof adequately protects
Landlord's interest; provided, however, that the landlords of comparable first
class office buildings located in the Comparable Market have similarly increased
the amount of insurance required to be obtained by tenants under leases for such
properties.
(E) Landlord hereby agrees that Tenant shall have the right to
provide the insurance which is required hereunder as part of so-called "blanket
insurance policies" which insure other properties of Tenant, provided, however,
that such "blanket insurance" policies cover any casualty, damage or injury at
the Property or Premises for which Tenant is required to obtain insurance
coverage separately hereunder. If Landlord consents, which consent may be given
or withheld in Landlord's sole and absolute discretion and with such conditions
as Landlord shall require, Tenant may self-insure any of the insurance coverages
required hereby.
(F) Tenant shall pay all premiums and charges for all of such
policies, and if Tenant shall fail to make any payment when due or carry any
such policy, Landlord may, but shall not be obligated to, make such payment or
carry such policy after notice to Tenant, and the amount paid by Landlord, with
interest thereon at the Interest Rate set forth in Section 2.1(H) of this Lease,
shall be repaid to Landlord by Tenant on demand, and all such amounts so
repayable, together with interest at the Interest Rate, shall be considered as
additional rent hereunder. Payment by Landlord of any such premium or the
carrying by Landlord of any such policy shall not be deemed to waive or release
Tenant with respect to such default.
(G) Tenant's failure to provide and keep in force the
aforementioned insurance shall be a material default hereunder, entitling
Landlord to exercise any or all of the remedies
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provided in this Lease in the event of Tenant's default.
Section 9.5 Notwithstanding the limits of insurance specified Section
9.4, Tenant and Landlord each agrees that its respective indemnification
obligations contained in Section 9.1 above shall operate whether or not Tenant
and Landlord each has placed and maintained the insurance specified in this
Lease.
Section 9.6 (A) Landlord and Tenant shall each procure an appropriate
clause in, or endorsement to, each of its property insurance policies (insuring
the Property, in the case of Landlord, and insuring Tenant's Property and
Alterations, in the case of Tenant), pursuant to which each insurance company
waives subrogation or consents to the waiver of right of recovery by the insured
prior to any loss. The waiver of subrogation or permission for waiver of the
right of recovery in favor of Tenant shall also extend to any permitted
assignees hereof or subtenants and/or Users occupying or using the Premises in
accordance with the terms of this Lease. The waiver of subrogation or permission
for waiver of the right of recovery in favor of Landlord shall also extend to
the Building's managing agent, if any, and to any Lessor and any Mortgagee.
(B) If such waiver of subrogation shall be unenforceable, each
party shall instead have included in each of its insurance policies (a) an
express agreement that such policy shall not be invalidated if the insured
waives the right of recovery against any party responsible for a casualty
covered by the policy before the casualty, or (b) any other form of permission
or release of the party. If such waiver, agreement or other form of permission
or release shall not be, or shall cease to be, obtainable from either party's
then-current insurance company, the insured party shall so notify the other
party promptly after learning thereof, and shall use its best efforts to obtain
the same from another insurance company described in Section 9.4 hereof.
(C) Landlord shall provide Tenant with written confirmation of
such waiver, agreement or other form of permission or release contained in
Landlord's current insurance policies.
Section 9.7 (A) Landlord shall obtain and keep in full force and effect
during the Term with respect to the Building, all -risk property insurance
coverage for not less than eighty percent (80%) of the replacement cost of the
Building (excluding foundations and footings), with earthquake and flood
endorsements. Notwithstanding the foregoing provisions of this Section 9.7,
Tenant hereby acknowledges and agrees that Landlord shall be in full compliance
with its obligations under this Section 9.7 for so long as Landlord shall then
be carrying the insurance required to be carried, and shall then be in
compliance with the insurance requirements imposed on Landlord as mortgagor
under any institutional third-party Mortgage then encumbering the Building
and/or the Land.
(B) Tenant hereby agrees that Landlord shall have the right to
provide the insurance which is required hereunder as part of so-called "blanket
insurance policies" which insure other properties of Landlord or Affiliates of
Landlord or LeFrak Organization, Inc. or its affiliates, provided, however, that
such "blanket insurance" policies cover any casualty, damage or injury at the
Property for which Landlord is required to obtain insurance coverage separately
hereunder; it being agreed and understood that any limits of coverage hereunder
may be provided by Landlord's commercial general liability and property damage
policy in conjunction with an umbrella or excess liability policy.
(C) Landlord will not carry insurance of any kind on Tenant's
Alterations or Tenant's Property and shall not be obligated to repair, any
damage to or replace Tenant's Alterations or Tenant's Property; provided,
however, that if Tenant shall fail to maintain such insurance, Landlord shall
have the right to obtain insurance on such Tenant's Alterations and Tenant's
Property and the cost thereof, with interest thereon at the Interest Rate, shall
be payable by Tenant to Landlord as additional rent on demand.
Section 9.8 Each party hereby releases the other (its servants, agents,
employees and invitees) with respect to any claim (including a claim for
negligence) which it might otherwise
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have against the other party for loss, damage or destruction with respect to
property by fire or other casualty (i.e., in the case of Landlord, as to the
Property, and, in the case of Tenant, as to Tenant's Alterations and Tenant's
Property) (including rental value or business interruption, as the case may be)
occurring during the Term with respect to and to the extent to which it is
insured, or is obligated to be insured under this Lease, under a policy or
policies containing a waiver of subrogation or permission to release liability
or naming the other party as an additional insured, as provided in Section 9.6.
Each party shall cooperate with the other party in connection with the
collection of any insurance monies that may be due in the event of loss and each
party shall execute and deliver to the other party such proofs of loss and other
instruments which may be required to recover any such insurance monies.
Section 9.9 (A) No recourse shall be had on any of Landlord's
obligations hereunder against any incorporator, subscriber of capital stock,
stockholder, officer or director, past, present or future, of any corporation,
or against any general or limited partner of any partnership or joint venture,
or against any member of any limited liability company which shall be Landlord
hereunder, or other holders of any equity interest in such corporation,
partnership, joint venture or limited liability company, respectively, or the
shareholders, directors or officers of such partners, or the partners comprising
such partners, or of any successor of any such corporation, partnership, joint
venture, or limited liability company, respectively, or against any principal of
any of the foregoing, disclosed or undisclosed, or any affiliate of any party
which shall be Landlord or be included in the term "Landlord", whether directly
or through Landlord or through any receiver, assignee, trustee in bankruptcy or
through any other person, firm or corporation, respectively, as the case may be
(collectively, the "Parties") whether by virtue or any Legal Requirement or by
enforcement of any assessment or penalty or otherwise; it being expressly
understood and agreed that Tenant shall look solely to Landlord to enforce
Landlord's obligations hereunder and shall not seek any damages against any of
the Parties. The liability of Landlord for Landlord's obligations under this
Lease shall not exceed and shall be limited to Landlord's interest in the
Property including, without limitation, the net proceeds of sale and the
proceeds of fire and extended coverage insurance or condemnation awards received
by Landlord, and Tenant shall not look to other property or assets of Landlord
or of any of the Parties in seeking either to enforce Landlord's obligations
under this Lease or to satisfy a judgment for Landlord's failure to perform such
obligations.
(B) Neither Landlord (except as expressly provided by the
terms and provisions of this Lease), nor any of the Parties, nor any Lessor nor
any Mortgagee, nor any partner, director, officer, shareholder, principal,
agent, servant or employee of such Lessor or Mortgagee (in any case, whether
disclosed or undisclosed), shall be liable to Tenant for any loss, injury or
damage to Tenant or to any other person, or to its or their property,
irrespective of such injury, damage or loss (except to the extent caused by
their negligence or wilful misconduct, and then subject to Sections 9.6 and 9.8
hereof) , nor shall any of the aforesaid entities or Parties be liable for any
damage to property of Tenant or of others entrusted Landlord nor for loss of or
damage to any such property by theft or negligence of Landlord, its agents,
servants or employees, or any of the Parties in the operation or maintenance of
the Premises or the Building, without contributory negligence of the party of
Tenant or any of its subtenants or licensees or its or their respective agents,
contractors or employees.
(C) Neither Landlord nor any of the Parties, nor any Lessor
nor any Mortgagee, nor any partner, director, officer, agent, servant or
employee of Landlord or any such Lessor or Mortgagee shall be liable for any
such damage caused by other tenants or persons in, upon or about the Building,
or caused by operations in construction of any private, public or quasi-public
work; or even if negligent, for consequential damages arising out of any loss of
use of the Premises or any equipment or facilities therein by Tenant or any
person claiming by, through or under Tenant.
Section 9.10 Except as may be expressly provided in this Lease, neither
Landlord nor Tenant shall be liable for consequential damages by reason of any
indemnity contained in this Article or a breach of this Lease by the other.
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ARTICLE 10
DESTRUCTION, FIRE AND OTHER CASUALTY
Section 10.1 (A) If the Premises or any part thereof shall be damaged
by fire or other casualty, Tenant shall give immediate notice thereof to
Landlord and this Lease shall continue in full force and effect except as
hereinafter set forth.
(B) Subject to Landlord's right to elect not to restore the
same as hereinafter provided in Sections 10.1(D) and 10.4(A) below and subject
to Tenant's right to terminate this Lease as provided in Sections 10.1(E) and
10.4(A) below, if the Premises are partially damaged or rendered partially
unusable by fire or other casualty customarily covered by an "all risk"
insurance policy, or if access to a portion of the Premises is rendered unusable
by fire or other casualty, or if any Building Systems serving the Premises are
damaged by fire or other casualty and a portion of the Premises is rendered
unusable thereby, then the damages to the Landlord's Work within or affecting
the Premises shall be repaired by and at the expense of Landlord to
substantially the condition prior to the damage and, until such repairs which
are required to be performed by Landlord shall be substantially completed, the
Fixed Rent and Additional Charges shall be apportioned from the day following
the casualty according to the part of the Premises which is usable. Tenant's
liability for payment of Fixed Rent and Additional Charges shall resume thirty
(30) days after the repairs to the Landlord's Work within or affecting the
Premises have been substantially completed and Landlord shall have given Tenant
notice thereof. Tenant acknowledges that Landlord will not carry insurance on
any of Tenant's Property or Alterations (including Tenant's Initial Alterations)
and agrees that Landlord will not be obligated to repair any damage thereto or
replace the same.
(C) Subject to Landlord's right to elect not to restore the
same as hereinafter provided in Sections 10.1(D) and 10.4(A) below and subject
to Tenant's right to terminate this Lease as provided in Sections 10.1(E) and
10.4(A) below, if the Premises are totally damaged or rendered wholly unusable
by fire or other casualty customarily covered by an "all risk" insurance policy,
or if access to all or substantially all of the Premises is rendered unusable by
fire or other casualty, or if any Building Systems serving the Premises are
damaged by fire or other casualty, and all or substantially all of the Premises
is rendered unusable thereby, then the Fixed Rent and Additional Charges shall
be proportionately paid up to the time of the casualty and thenceforth shall
cease until the date when the repairs to the Landlord's Work within or affecting
the Premises have been substantially completed and Landlord has given Tenant
notice thereof.
(D) If (whether or not the Premises are damaged in whole or in
part) the Building shall be so damaged that its repair or restoration requires
the expenditure (as estimated by a reputable contractor or architect designated
by Landlord and reasonably approved by Tenant) of more than fifty percent (50%)
of the replacement cost of the Building (excluding foundations and footings)
immediately prior to the fire or other casualty, and Landlord shall decide to
demolish it or to rebuild it, then, in any of such events, Landlord may elect to
terminate this Lease by written notice to Tenant given within sixty (60) days
after such fire or casualty specifying the date for the expiration of this
Lease, which date shall not be more than sixty (60) days after the giving of
such notice. Upon the date specified in such notice, the Term shall expire as
fully and completely as if such date were the date set forth above for the
Expiration Date, and Tenant shall forthwith quit, surrender and vacate the
Premises without prejudice, subject, however, to Landlord's rights and remedies
against Tenant under this Lease and its provisions in effect prior to such
termination, and any Rent owing shall be paid up to such date and any payments
of Rent made by Tenant which were on account of any period subsequent to such
date shall be returned to Tenant.
(E) (1) In the event that Landlord elects not to terminate
this Lease, as provided in Section 10.1(D) above, and the Premises are
materially damaged or rendered substantially unusable, or (whether or not the
Premises are damaged in whole or in part) if the Building shall be so damaged
that the Premises are rendered materially unusable, Landlord shall, after the
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occurrence of such damage or destruction, advise Tenant in writing of Landlord's
reputable contractor's or architect's estimate of the amount of time which will
be required to repair and/or restore the Landlord's Work within or affecting the
Premises (the "Landlord's Repair Notice").
(2) If Landlord, in the Landlord's Repair Notice,
advises Tenant that Landlord shall require more than one (1) year from
the date of the casualty to repair and restore the Landlord's Work
within or affecting the Premises, Tenant shall have the right to
terminate this Lease by written notice to Landlord given within thirty
(30) days after receipt of the Landlord's Repair Notice (TIME BEING OF
THE ESSENCE as to such thirty (30) day period).
(3) If Tenant elects not to terminate this Lease (or
fails to exercise its right to terminate this Lease) as provided in
subsection (2) above, or if Landlord advises Tenant, in the Landlord's
Repair Notice, that Landlord estimates that Landlord will repair and
restore the Landlord's Work within or affecting the Premises within one
(1) year from the date of casualty (the date as specified being the
"Restoration Period"), this Lease shall remain in full force and effect
and Landlord shall, promptly after receipt of any required permit(s)
from the Buildings Department or any other applicable Legal Authority
for the aforesaid restoration and repair work, commence or cause the
commencement of the repair and restoration of the Landlord's Work
within or affecting the Premises and diligently perform the same to
substantial completion within the Restoration Period, which Restoration
Period shall be subject to extension for an additional period of time
not to exceed sixty (60) days for Unavoidable Delays and/or adjustment
of insurance claims.
(4) If Landlord fails to substantially complete the
repair or restoration, or cause the substantial completion of the
repair or restoration of the Landlord's Work within or affecting the
Premises within the Restoration Period, and any extension thereof as
set forth in clause (3) above, then Tenant shall have the one-time
right, within thirty (30) days after the expiration of the Restoration
Period (TIME BEING DEEMED OF THE ESSENCE), to terminate this Lease by a
written notice given to Landlord, such termination to be effective as
of a date specified in such notice, which termination date shall be no
earlier than thirty (30) days nor later than forty-five (45) days from
the date of such termination notice, and unless Landlord shall have
substantially completed the repair and/or restoration of the Landlord's
Work within or affecting the Premises by the termination date specified
in such Tenant's notice, this Lease shall terminate and become null and
void, and the Term shall expire as fully and completely as if such date
were the date set forth above for the Expiration Date, and Tenant shall
forthwith quit, surrender and vacate the Premises without prejudice,
subject, however, to Landlord's rights and remedies against Tenant
under this Lease and its provisions in effect prior to such
termination, and any Rent owing (which has not been abated in
accordance with subsections (B) and (C) above) shall be paid up to such
date and any payments of Rent made by Tenant which were on account of
any period subsequent to such date shall be returned to Tenant.
(5) Within thirty (30) days after completing any
insurance adjustment made with respect to a casualty, Landlord shall
give Tenant notice thereof. In the event Landlord shall not commence
the repair or restoration of Landlord's Work within sixty (60) days
after the completion of the insurance adjustment, subject to
Unavoidable Delays, and thereafter proceed with reasonable dispatch to
do the required work, Tenant may elect to terminate this Lease by
giving Landlord thirty (30) days notice of its intention to do so; and
upon expiration of said 30-day period, if such work has not yet been
commenced, or if commenced shall not be proceeding with reasonable
dispatch so that it is reasonably anticipated by Landlord's contractor
that such work will be completed within the Restoration Period and any
extension thereof as set forth in clause (3) above, Tenant may give
Landlord a second notice of intention to terminate the Lease specifying
a date not less than ten (10) days thereafter and, upon the giving of
the second notice, this Lease and the Term shall expire and terminate
unless Landlord shall commence and diligently proceed with the work
prior to the end of such 10-day period.
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(6) The word "materially" as used in this subsection
(E) shall mean more than twenty-five percent (25%) of the Premises
shall be damaged by fire or other casualty or rendered unusable.
(7) In lieu of terminating the entire lease as
provided in (2), (4) or (5) above, Tenant may surrender one or more
floors thereof affected by the casualty (or if Tenant shall then lease
less than all the rentable area on a floor, the entire portion of the
Premises on the floor so affected) and the Fixed Rent and Additional
Charges shall thereafter be proportionately reduced; provided that such
surrendered floors consist of the bottom-most or upper-most floor(s) of
the Premises.
(F) Unless Landlord shall serve a termination notice as
provided for in Section 10.1(D) above or Section 10.4(A) below or Tenant shall
serve a termination notice as provided for in Section 10.1(E) above or Section
10.4(A) below, Landlord shall make the repairs and restorations under the
conditions as provided in Section 10.1(B) and (C) hereof, with all reasonable
expedition subject to delays resulting from or caused by (1) "Unavoidable
Delays" (as defined in Article 25), or (2) adjustment of insurance claims.
Section 10.2 After the occurrence of any such casualty, Tenant shall
cooperate with Landlord's repairs and restoration by removing from the portion
of the Premises to be repaired or restored as promptly as reasonably possible,
all of Tenant's salvageable inventory and Tenant's Property.
Section 10.3 Nothing contained herein above shall relieve Tenant from
liability that may exist as a result of damage from fire or other casualty,
subject, however, to Sections 9.6 and 9.8 above.
Section 10.4 (A) Notwithstanding the foregoing, if the Premises shall
be substantially damaged during the last year of the Term (without regard to
unexercised renewal options), either Landlord or Tenant may elect by notice,
given within thirty (30) days after the occurrence of such damage, to terminate
this Lease and if either party makes such election, the Term shall expire upon
the thirtieth (30th) day after notice of such election is given by such party
and Tenant shall vacate the Premises and surrender the same to Landlord in
accordance with the provisions of Article 1 hereof. For purposes of this Section
10.4(A), the phrase "substantially damaged" shall mean that more than fifty
percent (50%) of the Premises shall be damaged by fire or other casualty.
(B) Except as expressly set forth in Sections 10.1(E) or 10.4,
Tenant shall have no other options to cancel this Lease under this Article 10.
Section 10.5 This Article 10 constitutes an express agreement and
stipulation governing any case of damage or destruction of the Premises or the
Building by fire or other casualty, and the provisions of N.J.S.A. 46:8-6 and 7
which provide for such contingency in the absence of an express agreement or
stipulation, and any other law of like nature and purpose now or hereafter in
force shall have no application in any such case. Tenant hereby waives the
provisions of any present or future statutes or law which provide additional
rights and remedies, Tenant hereby agreeing the provisions of this Article 10
are in lieu thereof and shall govern and control to the maximum extent legally
permissible.
ARTICLE 11
EMINENT DOMAIN
Section 11.1 (A) If the whole of the Property or the Premises shall be
acquired or condemned for any public or quasi-public use or purpose, this Lease
and the Term shall end as of the date of the vesting of title as to any "Taking"
(as hereinafter defined) with the same effect as if said date were the Fixed
Expiration Date. Any acquisition or condemnation of all or a
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portion of the Property for any public or quasi-public use or purpose, as
described in this Article 11, is called a "Taking" or is deemed "Taken".
(B) If only a part of the Property and not the entire Premises
shall be Taken then: (1) except as hereinafter provided in this Section 11.1,
this Lease and the Term shall continue in force and effect, but, if a part of
the Premises is included in the part of the Property so Taken, from and after
the date of the vesting of title as to such Taking, the Fixed Rent, Tenant's Tax
Share and the Tenant's Operating Share shall be reduced in the proportion which
the area of the part of the Premises so Taken bears to the total area of the
Premises immediately prior to such Taking; (2) whether or not the Premises shall
be affected thereby, if a material portion of the exterior portions of the
Property shall be so Taken, or if thirty-five percent (35%) or more of the
Building is so taken and, in either such event, Landlord's operation of the
Building is materially impaired, as determined by Landlord in its reasonable
discretion, then in either such event Landlord, at Landlord's option, may give
to Tenant, within sixty (60) days next following the date upon which Landlord
shall have received notice of vesting of title as to such Taking, a thirty (30)
days' notice of termination of this Lease, and (3) if the part of the Property
so Taken shall contain more than thirty-five percent (35%) of the total rentable
area of the Premises immediately prior to such Taking, or if, by reason of such
Taking, Tenant no longer has reasonable means of access to the Premises or
Tenant's operation of its business in the Premises as a result of such Taking is
materially impaired as determined by Tenant in its reasonable discretion,
Tenant, at Tenant's option, may give to Landlord, within sixty (60) days next
following the date upon which Tenant shall have received notice of vesting of
title of such Taking, a thirty (30) days' notice of termination of this Lease.
If any such thirty (30) days' notice of termination is given by Landlord or
Tenant, this Lease and the Term shall come to an end and expire upon the
expiration of said thirty (30) days with the same effect as if the date of
expiration of said thirty (30) days were the Fixed Expiration Date. In addition,
the provisions of Section 10.1(E) and 10.4(A) shall apply, mutatis mutanis, to a
Taking in the last year of the Term, and/or where the Taking requires repair or
restoration.
(C) If a part of the Premises shall be so Taken and this Lease
and the Term shall not be terminated pursuant to the foregoing provisions of
this Section 11.1, Landlord, at Landlord's expense, shall restore that part of
the Premises not so Taken to a self-contained rental unit which shall be
substantially comparable in quality and service to the rental unit that existed
prior to such Taking (but only to the extent of Landlord's Work and expressly
excluding Tenant's Property and Alterations).
(D) Upon the termination of this Lease and the Term pursuant
to the provisions of this Section 11.1, the Fixed Rent and Additional Charges
shall be apportioned and any prepaid portion of Fixed Rent and Additional
Charges for any period after such date shall be refunded by Landlord to Tenant.
Section 11.2 In the event of any Taking of all or any part of the
Property, Landlord shall be entitled to receive the entire award for any such
Taking, Tenant shall have no claim against Landlord or the condemning authority
for the value of any unexpired portion of the Term and Tenant hereby expressly
assigns to Landlord all of its right in and to any such award. Nothing contained
in this Section 11.2 shall be deemed to prevent Tenant from making a separate
claim in any condemnation proceedings for the then value of any Tenant's
Property included in such Taking, and for any moving expenses, provided same
does not reduce or affect Landlord's award in any way.
Section 11.3 If the whole or any part of the Premises shall be
temporarily Taken during the Term for any public or quasi-public use or purpose
this Lease shall be and remain unaffected by such temporary Taking and Tenant
shall continue to be responsible for all of its obligations hereunder insofar as
such obligations are not affected by such temporary Taking and shall continue to
pay in full the Fixed Rent and Additional Rent when due. Tenant shall be
entitled, except as hereinafter set forth, to receive that portion of the award
for such Taking which represents compensation for the use and occupancy of the
Premises and, if so awarded, for the Taking of Tenant's Property and for moving
expenses. If the period of temporary Taking shall
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extend beyond the Fixed Expiration Date, that part of the award which represents
compensation for the use of occupancy of the Premises, or a part thereof, shall
be divided between Landlord and Tenant so that Tenant shall receive so much
thereof as represents the period prior to and including the Fixed Expiration
Date and Landlord shall receive so much thereof as represents the period
subsequent to the Fixed Expiration Date. All monies received by Tenant as, or as
part of, an award for a temporary Taking for a period beyond the date to which
the Fixed Rent and Additional Rent hereunder have been paid by Tenant shall be
received, held and applied by Tenant as a trust fund for payment of the Fixed
Rent and Additional Rent hereunder. Notwithstanding the foregoing, if such
temporary Taking of the Premises renders the Premises substantially unusable and
such temporary Taking either exceeds one (1) year or commences at any time
during the last six (6) months of the Term (without regard to unexercised
renewal options), then, in either event, Tenant shall have the right to
terminate this Lease by written notice to Landlord given within thirty (30) days
after the expiration of such one-year period or such commencement of the
temporary Taking, as the case may be (TIME BEING OF THE ESSENCE as to such
thirty (30) day period). If any such thirty (30) days' notice of termination is
given by Tenant, this Lease and the Term shall come to an end and expire upon
the expiration of said thirty (30) days with the same effect as if the date of
expiration of said thirty (30) days were the Fixed Expiration Date.
ARTICLE 12
ASSIGNMENT; SUBLETTING; MORTGAGE, ETC.
Section 12.1 (A) Except as otherwise expressly set forth in this
Article 12, Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns expressly
covenants that it shall not, without the prior written consent of Landlord in
each instance, enter into any license or concession agreement, sublet or
otherwise suffer or permit the Premises or any part thereof to be used by
others, mortgage, hypothecate, transfer, assign or otherwise encumber this Lease
or Tenant's interest herein and in and to the Premises, or any part thereof,
except as is otherwise expressly set forth below in this Article 12.
(B) In the event Landlord's written consent is given to an
assignment or subletting, Tenant shall nevertheless remain liable for the
performance of all covenants and conditions of this Lease. In the case of an
assignment, such liability shall be joint and several with the assignee. The
consent by Landlord to an assignment or subletting shall not in any way be
construed to relieve Tenant from obtaining the express written consent of
Landlord as to any further assignment or subletting.
(C) Any attempted license, concession, subletting, mortgage,
subletting, hypothecation, transfer or assignment as aforesaid, without the
prior written consent of Landlord, as and where required in this Article 12,
shall constitute a material default hereunder, entitling Landlord to exercise
any or all of the remedies provided in this Lease upon the occurrence of an
"Event of Default" (as defined in Article 16).
(D) Tenant shall reimburse Landlord on demand for any
reasonable out-of-pocket costs that may be incurred by Landlord in connection
with any proposed assignment of Tenant's interest in this Lease or any proposed
subletting of the Premises or any part thereof, including, without limitation,
attorneys' fees and disbursements and the costs of making investigations as to
the acceptability of the proposed subtenant or the proposed assignee.
Section 12.2 If this Lease is assigned, or if the Premises or any part
thereof is sublet or occupied by anybody other than Tenant, unless otherwise
permitted hereunder or unless Landlord shall have granted its consent thereto,
as hereinafter provided, such assignment or occupancy shall be void and of no
force and effect against Landlord; provided, however, that Landlord may collect
rent from the assignee, under-tenant or occupant as a fee for its use and
occupancy, and apply the net amount collected to the Rent herein reserved, but
no such assignment, underletting, occupancy or collection shall be deemed a
waiver of the covenant, or the acceptance of the assignee, under- tenant or
occupant as tenant, or a release of Tenant from the further performance by
Tenant of the terms, conditions, provisions and covenants on the part of Tenant
herein contained, and
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Tenant shall remain liable for the due observance and performance of all of
Tenant's duties, obligations and responsibilities under this Lease.
Section 12.3 Notwithstanding the provisions of Section 12.1 hereof,
Landlord shall not unreasonably withhold its consent to any subletting of all or
portion(s) of the Premises (as hereinafter provided) or any assignment of this
Lease, provided that Tenant complies with the requirements of Section 12.5
hereof.
Section 12.4 (A) In the event Tenant desires to sublease all or any of
the Premises or assign this Lease pursuant to this Article 12 (other than a
subletting or an assignment to a "Permitted Tenant" as such term is defined in
Section 12.9), Tenant shall submit to Landlord a statement (the "Tenant's
Assignment/Subletting Notice") containing the principal terms and conditions of
the desired assignment or subletting including, without limitation, the proposed
commencement and expiration dates of the term of the desired sublease or the
effective date of any desired assignment, and a sketch of the space desired to
be sublet (if applicable), but which may or may not, at Tenant's option, include
the "Background Information" referred to in Section 12.5(B) below.
(B) (1) Tenant's Assignment/Subletting Notice shall be deemed
an offer from Tenant to Landlord whereby Landlord may, at its option (the
"Landlord's Option"), (a) terminate this Lease with respect to the portion of
the Premises desired to be sublet by Tenant if (i) the desired transaction is a
sublease of less than "all or substantially all of the Premises" (as hereinafter
defined) and consists of full floor increments of the Premises, and (ii) is for
"all or substantially all of the remaining term of this Lease" (as such term is
hereinafter defined), or (b) terminate this Lease in its entirety if the desired
transaction is an assignment of this Lease or a sublease of all or substantially
all of the Premises for all or substantially all of the remaining term of this
Lease. Landlord's Option shall be exercised, if at all, by notice to Tenant,
given at any time within twenty (20) days after Tenant has given the Tenant's
Assignment/Subletting Notice to Landlord (the "Landlord's First Response
Period"), and during the Landlord's First Response Period Tenant shall not
assign this Lease nor sublet any such space to any person or entity. If Landlord
does not respond on or before the expiration of Landlord's First Response
Period, Landlord shall be deemed to have waived its right of recapture as
provided above.
(2) For purposes of this Section 12.4(B), the term (a)
"all or substantially all of the Premises" shall mean ninety-five
percent (95%) or more of the rentable square feet of the then-Premises,
and (b) "all or substantially all of the remaining term of the Lease"
shall mean ninety-five percent (95%) or more of the remaining Term of
this Lease.
(C) If Landlord exercises its Landlord's Option to terminate
this Lease with respect to the portion of the Premises desired to be sublet by
Tenant, pursuant to Section 12.4(B)(1)(a) above (such portion of the Premises
being hereinafter referred to as the "Recaptured Space"), then (1) this Lease
shall end and expire with respect to the Recaptured Space, (2) Tenant shall
surrender the Recaptured Space to Landlord on or prior to the date on which the
desired sublease was to commence, in the same manner and condition as is
required by this Lease, as if such date were the Fixed Expiration Date of this
Lease, (3) from and after such date any Fixed Rent and Additional Charges paid
to such date, shall be apportioned and adjusted, if required, and Tenant's
prospective Rental obligations hereunder which are based upon square footage
(including, without limitation, Fixed Rent, Tenant's Tax Share and Tenant's
Operating Share) shall be proportionately reduced, and (4) Landlord, at Tenant's
expense, shall: (i) make such alterations as may be required or deemed necessary
by Landlord to physically separate the Recaptured Space from the balance of the
Premises; (ii) make any alterations and installations in the Recaptured Space,
required, in Landlord's reasonable judgment, to make the Recaptured Space a
self-contained rental unit with access through corridors to the Building's
elevators and core toilets serving the Recaptured Space and the Premises,
respectively, as the case may be, and if the Premises shall contain any core
toilets or any corridors (including any corridors proposed to be constructed by
Landlord pursuant to this paragraph, providing access from the Recaptured Space
to such core area(s)), Landlord and any tenant or other occupant of the
Recaptured Space shall
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have the right to use such toilets and corridors in common with Tenant and any
other permitted occupant(s) of the Premises, respectively, as the case may be;
(iii) install signs and directional indicators in or about such corridors
indicating the name and location of such tenant or other occupant(s) of the
Recaptured Space and the Premises, respectively, as the case may be; and (iv)
comply with any Legal Requirements of any Legal Authority and insurance
requirements of any Insurance Body relating to the alterations and installations
described herein.
(D) If Landlord exercises its Landlord's Option to terminate
this Lease in its entirety pursuant to Section 12.4(B)(1)(b) above, then (1)
this Lease shall end and expire with respect to the entire Premises on the date
on which the desired assignment was to occur or the desired sublease was to
commence, as the case may be, (2) Tenant shall surrender the entire Premises to
Landlord on or prior to the date on which the desired assignment was to occur or
the desired sublease was to commence, as the case may be, in the same manner and
condition as is required by this Lease, as if such date were the Fixed
Expiration Date of this Lease, and (3) from and after such date any Fixed Rent
and Additional Charges paid to such date, shall be apportioned and adjusted if
required.
(E) If Landlord exercises a Landlord's Option to terminate
this Lease, with respect to Recaptured Space as provided above, then Landlord
shall recapture a share of the Parking Spaces made available to Tenant pursuant
to Article 15 proportionate to the Recaptured Space. Similarly, if Tenant shall
sublet all or a portion of the Premises or assign this Lease pursuant to this
Article 12, then Tenant may sublet a proportionate share of the Parking Spaces
to such subtenant or assign the Parking Spaces to such assignee, as the case may
be, subject to the provisions of Section 15.2 of the Lease.
(F) If Landlord does not exercise a Landlord's Option then, if
Tenant shall within nine (9) months from the expiration of the Landlord's First
Response Period give a substitute Tenant's Assignment/Subletting Notice to
Landlord with respect to the same or substantially the same portion of the
Premises, or all of the Premises, as was applicable to the Landlord's Option not
so exercised, Landlord's Option shall not be applicable to such substitute
Tenant's Assignment/Subletting Notice and Tenant may proceed to obtain
Landlord's consent to the proposed transaction pursuant to Section 12.5 below.
Section 12.5 (A) In the event Landlord does not exercise a Landlord's
Option provided to it pursuant to the provisions of Section 12.4 or in the event
there is no applicable Landlord's Option with respect to a proposed assignment
or subletting by Tenant, Landlord's consent (which must be in writing and form
reasonably satisfactory to Landlord and which consent shall not be conditioned
upon (i) an increase Tenant's monetary obligations, (ii) an increase in Tenant's
non-monetary obligations, except to a de minimis extent, or (iii) an impairment
of Tenant's rights hereunder, except to a de minimis extent) to the proposed
assignment of this Lease or sublease of all or substantially all of the Premises
shall not be unreasonably withheld provided that:
(1) no Event of Default shall have theretofore
occurred and be continuing with respect to a monetary or material
non-monetary obligation of Tenant hereunder, at the time Landlord's
consent to such subletting or assignment is requested;
(2) if Landlord's Option was applicable, and Landlord
waived (or is deemed to have waived) the Landlord's Option, Tenant's
request for Landlord's consent shall have been requested within nine
(9) months after such waiver (or such deemed waiver) by Landlord of the
Landlord's Option;
(3) if the subletting is for more than one full
floor, the floors shall be contiguous;
(4) the term of the subletting shall be a term of
more than one (1) year (unless the unexpired Term of this Lease shall
be less than one (1) year, in which event the subletting shall be for a
term equal to such unexpired portion of the Term, less one (1)
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day);
(5) upon conclusion of the subletting transaction in
question, there shall be no more than four (4) occupants per floor of
the Premises (counting Tenant, any Related Entities and any Users
collectively as one occupant);
(6) a proposed subtenant or assignee has a
commercially adequate financial standing (taking into consideration the
obligations of the proposed subtenant under the sublease or assignee of
the Lease, as the case may be) satisfactory to Landlord, in Landlord's
reasonable judgment, and each is of a character and engaged in a
business in keeping with the standards in such respects of the other
tenancies in the Comparable Market;
(7) the Premises have not, without Landlord's prior
consent, been publicly listed or otherwise publicly advertised for
subletting at a rental rate less than the prevailing rental rate set by
Landlord for comparable space in the Building or if there is no
comparable space, the prevailing rental rate reasonably determined by
Landlord (the "Prevailing Rate") provided that Landlord shall, within
ten (10) days after Tenant requests, have informed Tenant of such
Prevailing Rate, and provided, further, that nothing contained in this
subsection (7) shall be deemed to prohibit Tenant from negotiating and
consummating a sublease at a lesser rental rate;
(8) (a) the proposed subtenant or assignee (X) is not
a tenant of any space in the Building or in the building presently
known as "Newport Office Center I" (a/k/a Newport Financial Center at
111 Pavonia Avenue), or the building to be known as "Newport Office
Center IV" to be constructed on Washington Boulevard, or any other
buildings to be built by Landlord or any "Landlord Related Entity" (as
hereinafter defined) upon the land shown on Exhibit A-1 as the
"developer's sites", for so long as such buildings shall be owned by
Landlord or any Landlord Related Entity (collectively, the "Other
Buildings") and no comparable space is then available for leasing in
the Building or Other Buildings of similar size and configuration for a
comparable length of term, and (Y) is not a person with whom (i)
Landlord is then negotiating or discussing to lease space in the
Building of similar size and configuration for a comparable length of
term, or (ii) Landlord or any Landlord Related Entity is then
negotiating or discussing to lease space in any Other Building of
similar size and configuration for a comparable length of term,
respectively, at the time of receipt of the Tenant's
Assignment/Subletting Notice; and Landlord shall, within ten (10) days
after Tenant so requests, inform Tenant of whether Landlord believes
there is comparable space available for leasing in the Building or
Other Buildings of similar size and configuration for a comparable
length of term, and, if so, Landlord shall provide Tenant with a list
of such comparable space available for leasing as well as a statement
identifying any such persons with whom Landlord is then negotiating or
discussing to lease space in the Building and/or any such persons with
whom Landlord or any Landlord Related Entity is then negotiating or
discussing to lease space in any Other Building (any such persons not
so identified by Landlord shall not be covered by the foregoing
condition); it being agreed that, notwithstanding that there is such
comparable space available for leasing, if any such person so
identified by Landlord shall decline in writing to lease the space
offered by Landlord or any Landlord Related Entity, then Tenant shall
thereafter, on prior notice to Landlord, be free to enter into a
proposed assignment or subletting with such person, subject to the
other terms and conditions of this Article 12. Tenant shall keep such
information strictly confidential and shall not disclose such
information to any other person or entity without Landlord's express
written consent; and
(b) as used in this Lease: "Landlord Related
Entity" shall mean the Landlord, Lefrak Organization, Inc., or any
"Affiliate" thereof; "Affiliate" shall mean (i) any member or
combination of members of the "LeFrak Family" (as hereinafter defined),
(ii) any corporation, partnership, limited liability company or other
entity controlled, directly or indirectly, by any combination of
members of the LeFrak Family,
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or (iii) a "LeFrak REIT"; "LeFrak Family" shall mean Samuel J. LeFrak,
Richard S. LeFrak, their respective spouses, any descendants of the
foregoing and the spouses of such descendants, any trusts for the
benefit of any of the foregoing parties; a "LeFrak REIT" shall mean an
entity operating under the Internal Revenue Code as a real estate
investment trust (1) which is formed by the LeFrak Family, (2) the
board of directors or board of trustees shall, for at least two years
after the formation thereof, contain members of the LeFrak Family, and
(3) the largest non-institutional shareholders of which after any
initial public offering of stock thereof shall be members of the LeFrak
Family; and "control" shall mean the ownership, directly or indirectly,
of voting capital stock or other beneficial ownership interests in
excess of fifty percent (50%) and the possession of power to direct or
cause the direction of the management and policy of such corporation or
other entity, whether through the ownership of voting securities, by
statute, according to the provisions of a contract, or otherwise;
provided, however, that if at any time the Building shall not be owned
by a Landlord Related Entity as above-defined, then at such times the
term "Landlord Related Entity" shall mean a corporation or other
business entity "controlling", "controlled by", or "under common
control with" Landlord ("control" having the meaning set forth above);
(9) the type of business to be conducted, or the
proposed use of the Premises by the proposed subtenant or assignee,
respectively, shall not (a) violate any provision or restrictions
herein relating to the use or occupancy of the Premises; (b) require
any alterations, installations, improvements, additions or other
physical changes (excluding permitted changes in any exterior signage
expressly granted to Tenant hereunder) to be performed in or made to
any portion of the Property other than the Premises unless Tenant shall
agree in writing to reimburse Landlord for the reasonable cost thereof;
(c) impose an extra burden upon the Structural Elements, Building
Systems or any Building services unless such Building services are
provided by Landlord without charge or, if not, unless Tenant shall
agree in writing to pay for the reasonable increase in the cost of such
Building service(s) at issue; or (d) with respect to the ground floor
portion of the Premises only, violate any exclusive granted in any
other lease for retail space in the Building of which exclusive
Landlord shall have provided written notice to Tenant;
(10) the assignee, in its agreement of assignment and
assumption , agrees to assume all of the obligations of Tenant under
this Lease from and after the date of the assignment;
(11) the proposed subtenant or assignee is not
entitled, directly or indirectly, to diplomatic or sovereign immunity,
and is subject to the service of process in, and the jurisdiction of
the courts of, New Jersey; and
(12) the agreement of sublease expressly provides (a)
the subletting is expressly subject and subordinate to all of the
terms, covenants, conditions and obligations on Tenant's part to be
observed and performed under this Lease, (b) the financial terms of the
sublease (including, without limitation, the length of term, rental and
space) may not be modified, amended or altered without the prior
written consent of Landlord, which consent shall be granted or withheld
in Landlord's reasonable judgment, as if such modification, amendment
or alteration was a sublease, (c) the sublease may not be assigned,
encumbered or otherwise transferred, and the subleased premises may not
be further sublet by the subtenant in whole or in part, or any part
thereof suffered or permitted by the subtenant to be used or occupied
by others, without the prior written consent of Landlord in each
instance, which consent shall not be unreasonably withheld provided
that such proposed transaction satisfies the same terms and conditions
as are required to be satisfied by Tenant with respect to assignments
or sublettings (as applicable) proposed by Tenant provided that the
sublease may be assigned and the sublet premises further sublet without
Landlord's consent under the circumstances and standards as set forth
in Section 12.9; and (d) that in the event of termination, re-entry or
dispossess of Tenant by Landlord under this Lease, Landlord may, at its
option, take over all of the
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right, title and interest of Tenant, as sublessor under such sublease,
and the subtenant, at Landlord's option, shall attorn to Landlord
pursuant to the then executory provisions of such sublease, except that
Landlord shall not be:
(i) liable for any act or omission of Tenant under
such sublease except to the extent such act, omission or
default is continued by Landlord or is otherwise applicable to
the period after the date that Tenant's interest in such
sublease shall have been transferred to Landlord (and then
only to the extent of the liability from and after the date of
transfer); or
(ii) subject to any credit, demand, claim,
counterclaim, defense or offset which such subtenant may have
against Tenant; or
(iii) bound by any previous payment which such
subtenant may have made to Tenant of more than thirty (30)
days in advance of the date upon which such payment was due,
unless previously approved by Landlord; or
(iv) bound by any obligation to make any payment to
or on behalf of such subtenant required to be made by Tenant
under such sublease except for the return of any security
deposit to the extent same had been delivered to Landlord; or
(v) bound by any obligation to perform any work or to
make improvements to the sublet premises; or
(vi) bound by any amendment or modification of such
sublease made without its consent; or
(vii) bound to return such subtenant's security
deposit, if any, until such deposit has come into its actual
possession and such subtenant would be entitled to such
security deposit pursuant to the terms of such sublease.
Landlord may withdraw any consent it may grant if, prior to the effective date
of such proposed assignment or the commencement date of such proposed
subletting, as the case may be, any of the foregoing items or conditions are not
met or satisfied (except as to (1) and (8).
(B) To the extent that Tenant's Assignment/Subletting Notice
does not include the rent and other financial terms of the proposed assignment
or subletting, the term of a proposed sublease, name and address of the proposed
assignee or subtenant, the nature of the proposed assignee's or subtenant's
business, evidence of the "Transaction Costs" (as such term is hereinafter
defined) and such other relevant financial and other information with respect to
the proposed assignee or subtenant ("Background Information"), then Tenant shall
furnish such Background Information (which, at Tenant's discretion may include
the form of the proposed assignment or sublease) to Landlord at least twenty
(20) days prior to the proposed assignment or subletting. Thereafter, Landlord
shall have a period, not to exceed twenty (20) days after Tenant has requested
Landlord's consent and given the Background Information (the "Landlord's Second
Response Period") in which to evaluate such consent request and the Background
Information, or to request additional information from Tenant (provided Landlord
must request any additional information, if at all, within ten (10) days after
Landlord has received the initial Background Information) shall be reasonably
required by Landlord regarding Tenant's proposed assignment or subletting so
that Landlord may make a reasoned and informed determination as to whether to
grant or withhold consent thereto. During the Landlord's Second Response Period,
Tenant shall not assign this Lease nor sublet any such space to any person or
entity.
(C) Landlord hereby agrees that, by no later than the end of
the Landlord's Second Response Period, as such Landlord's Second Response Period
may be extended by such additional reasonable period of time required by
Landlord to evaluate any additional information regarding the proposed
assignment or subletting which Tenant may furnish to Landlord, as requested by
Landlord in Section 12.5(B) above, but in no event more than an additional ten
(10)
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days (the "Additional Period"), Landlord shall provide written notice to Tenant
of Landlord's consent to (which consent must be in form reasonable satisfactory
to Landlord and which consent shall not be conditioned upon (i) an increase in
Tenant's monetary obligations, (ii) an increase in Tenant's non-monetary
obligations, except to a de minimis extent or (iii) an impairment of Tenant's
rights under this Lease except to a de minimis extent) or disapproval of
Tenant's proposed assignment or sublease (which notice of disapproval shall
include reasons for such disapproval). In the event that Landlord shall fail to
provide Tenant with such written notice of either Landlord's approval or
disapproval of the proposed assignment or subletting transaction, as the case
may be, by the expiration of the Landlord's Second Response Period, as the same
may be extended by the Additional Period, Tenant's proposed assignment or
subletting transaction, as set forth in the Assignment/Subletting Notice, shall
be deemed approved by Landlord.
(D) It is understood that if Tenant's Assignment/Subletting
Notice includes the Background Information, Landlord's First Response Period
shall be combined with and included within Landlord's Second Response Period,
and the provisions of Section 12.4(A) and Section 12.5(A) shall not require two
(2) successive procedures.
(E) In the event that Landlord consents to any assignment or
subletting pursuant to this Article 12 and Tenant fails to execute and deliver
the assignment or sublease document as to the particular assignment or
subletting which Landlord shall have theretofore approved, within nine (9)
months after the giving of Landlord's consent and Landlord's approval of said
document, then Tenant shall again comply with all of the requirements of this
Article 12 before assigning its interest in this Lease or subletting the
Premises (or completing the theretofore approved assignment or sublet),
respectively, as the case may be.
(F) In the event that Tenant shall sublease less than all or
substantially all of the Premises, Tenant shall perform or cause to be
performed, at Tenant's sole cost and expense, any necessary demolition work
regarding the separation of the subleased premises from the balance of the
Premises and/or the construction of any demising walls between the subleased
premises and the remaining Premises, including any necessary demising walls to
create common Building hallways, corridors or public elevator waiting areas on
any divided floor, to be performed in accordance with the terms and conditions
of this Lease with respect to the making of Alterations to the Premises.
Section 12.6 (A) If there is a dispute between Landlord and Tenant as
to the reasonableness of Landlord's refusal to consent to any assignment or
subletting, such dispute shall be determined by Expedited Arbitration in
accordance with the provisions of Section 34.2 below. Any such determination
shall be final and binding upon the parties, whether or not a judgment shall be
entered in any court. If the determination of any such arbitration proceeding
shall be adverse to Landlord, Landlord shall not be liable to Tenant for a
breach of Landlord's covenant not to unreasonably withhold such consent (unless
it is determined by the arbitrator in such arbitration that Landlord acted in a
malicious manner, in which event Landlord shall be liable to Tenant for the
specific damages set forth in Section 12.6(B) below), and Tenant's sole remedy
in such event shall be to enter into the proposed assignment or subletting.
(B) Notwithstanding anything to the contrary contained in
this Section 12.6 or elsewhere in this Lease, Landlord hereby agrees that if
Landlord is judged by an arbitrator (in any case by an unappealable final
judgment) to have acted maliciously in unreasonably withholding or delaying its
consent to a requested assignment of this Lease or a subletting of the Premises,
as in this Article 12 provided, and Tenant shall have been unable to conclude
the assignment or subletting transaction in question as the sole and proximate
result of such bad faith on the part of Landlord, Landlord shall be responsible
for the payment to Tenant of damages equal to the actual amount of damages
(quantified in sufficient detail by the Tenant's financial officer) which Tenant
actually suffers as a proximate result of the loss of or inability to conclude
such proposed assignment or subletting transaction.
Section 12.7 If Tenant obtains Landlord's consent to the assignment of
this Lease or the subletting of the Premises, then, within ten (10) days of the
execution thereof, Tenant shall deliver
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to Landlord (A) in the case of an assignment (1) a duplicate original instrument
of assignment in form and substance theretofore approved by Landlord and meeting
the requirements of Section 12.5, duly executed by Tenant, and (2) an instrument
in form and substance theretofore approved by Landlord, duly executed by the
assignee, in which such assignee assumes the observance and performance of, and
agrees to be bound by, all of the terms, covenants and conditions of this Lease
on Tenant's part to be observed and performed from and after the effective date
of the assignment of this Lease, and (B) in the case of a subletting, an
executed duplicate original of the sublease in form and substance theretofore
approved by Landlord, and meeting the requirements of Section 12.5.
Section 12.8 For purposes of this Article 12, the term "assignment"
shall be deemed to include, but shall not be limited to the following, whether
occurring at any one time or over a period of time through a series of
transfers: (A) the sale or transfer of all or substantially all of the assets
of, or the sale, assignment or transfer of any issued or outstanding stock of
any corporation or other business entity referred to in this clause (A) which
results in a change in ownership of more than fifty percent (50%) of the
outstanding voting stock of such corporation (or other majority equity control
interest if not a corporation) which is Tenant under this Lease, or is a
controlling general partner of any partnership or joint venturer of any joint
venture which directly or indirectly is Tenant under this Lease; (B) the
issuance of any additional stock, if the issuance of such additional stock will
result in a change in ownership of more than fifty percent (50%) of the
outstanding voting stock of such corporation (or other majority equity control
interest if not a corporation); and (C) the sale, assignment or transfer of a
controlling general partner's, joint venturer's or member's respective interest
in the partnership, joint venture or limited liability company, respectively, as
the case may be, which is Tenant under this Lease, which results in a change of
control of such partnership, joint venture or limited liability company,
respectively, as the case may be. The transfer of shares or issuance of
additional stock of Tenant for purposes of this Section 12.8 shall not include
the sale of shares by persons, which sale is effected through the
"over-the-counter market" or through any nationally recognized stock exchange or
through a sale of the stock or other equity interests of Tenant pursuant to a
public offering registered with the Securities Exchange Commission or the
transfer of or other issuance of stock by other equity interests of Tenant to
employees of Tenant as part of compensation or a similar arrangement. Nothing
contained in this Section 12.8 is intended to, nor shall same be deemed to,
impair or alter Tenant's rights under Section 12.9 below.
Section 12.9 (A) Notwithstanding anything to the contrary contained in
Section 12.8, the provisions of this Article shall not apply to (1) transactions
with a corporation or other business entity into or with which Tenant is merged
or consolidated or to transactions with a corporation, other business entity or
partnership to which all or substantially all of Tenant's assets are
transferred, or to whom all or substantially all of the assets of the then stock
brokerage operations of the Tenant named herein (provided the stock brokerage
operations constitute the primary business of Tenant hereunder at the time) are
transferred, or in a transaction constituting an assignment of this Lease by
reason of the provisions of section 12.8, or (2) an assignment of Tenant's
interest, as tenant, in and to this Lease to a "Related Entity" (as such term is
hereinafter defined) or the Guarantor, or (3) a sublease of all or a portion of
the Premises to a Related Entity; provided, however that in any of such events:
(i) in the case of any transaction described in clause (1) above, the successor
to said Tenant shall be of a character consistent with the character of other
tenants in first class office buildings in the Comparable Market, and following
such transaction has a net worth, computed in accordance with GAAP, at least
equal to the lesser of (x) the net worth of the Tenant, computed in accordance
with GAAP, immediately prior to such merger, consolidation or transfer, (y)
seventy-five percent (75%) of Tenant's net worth as of the date hereof, or (z)
$500 Million Dollars (the "Credit Test") as shown on such successor's financial
statements; (ii) in the case of any transaction described in clauses (1) or (2)
above, a duplicate original instrument of assignment in form and substance
reasonably satisfactory to Landlord duly executed by Tenant and assignee shall
have been delivered to Landlord no later than ten (10) days after the effective
date of any such transaction in which such assignee assumes the observance and
performance of, and agrees to be personally bound by, all of the terms,
covenants and conditions of this Lease on Tenant's part to be performed and
observed from and after the effective date of the assignment; (iii) in the case
of any transaction described in clause (1) above, an instrument
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in form and substance reasonably satisfactory to Landlord, shall have been
delivered to Landlord at least ten (10) days prior to the effective date of any
such transaction duly executed by the Tenant and the assignee, and confirming
that the transaction is being entered into for a valid business purpose and not
for the principal purpose of assigning this Lease; and (iv) in the case of any
transaction described in clauses (2) or (3) above, Tenant shall provide Landlord
with five (5) days' prior written notice of such assignment or sublease to such
Related Entity. With respect to clause (1) above, prior to or simultaneously
with the effective date of such transaction Tenant shall deliver to Landlord
evidence that the Credit Test and other conditions of this Section have been
satisfied and supply Landlord with any further documents or information
reasonably requested by Landlord within five (5) business days of receipt of
Tenant's notice. No later than ten (10) days after Landlord's receipt of
Tenant's notice or after Landlord's receipt of such other documents or
information furnished to Landlord pursuant to the preceding sentence, Landlord
shall advise Tenant whether or not in Landlord's judgment, such transaction is
permitted by this Section 12.9, or Landlord shall be deemed to have waived its
objection to the transaction (except to the extent that the documents or
information provided to Landlord are incomplete or inaccurate.) The successor to
or assignee of Tenant as a result of any one or more of the transactions
expressly permitted pursuant to clauses (1) or (2) of this Section 12.9(A) and
the subtenant of Tenant as a result of any sublease expressly permitted pursuant
to clause (3) above are collectively referred to in this Lease as a "Permitted
Tenant".
(B) In determining the net worth of the successor "Tenant"
entity for purposes of this Section, Tenant may at its option include the net
worth of any surviving predecessor entity continuing to have liability under
this Lease or of any entity which guarantees the obligations under this Lease
(such guaranty to be on Landlord's standard form), or otherwise acceptable to or
accepted by Landlord as well as the dollar amount of any cash security deposit
or its equivalent (e.g., a continuing irrevocable letter of credit from a bank
and in form acceptable to Landlord) provided to Landlord by the successor Tenant
or any surviving predecessor entity or Guarantor to secure the obligations of
Tenant under this Lease.
(C) In the case of an assignment by merger or consolidation, a
true copy of the instrument of merger or consolidation containing the
successor's assumption of Tenant's obligations and liabilities, including
Tenant's liabilities under this Lease, shall be acceptable to Landlord in lieu
of the agreement mentioned in Section 12.9 above. In the case of an assignment
by reason of Section 12.8, no agreement mentioned in Section 12.9 shall be
required.
(D) For purposes of this Section 12.9 and elsewhere in this
Lease, the term "Related Entity" shall mean an affiliated corporation or other
business entity (which, for purposes of this Section 12.9 and elsewhere in this
Lease, shall be a corporation or other business entity "controlling",
"controlled by" or "under common control with" Tenant).
(E) As used in this Section 12.9 and elsewhere in this Lease
except in Section 1.3(D), the terms "control", "controlled by" or "under common
control with" shall mean ownership of (i) more than twenty percent (20%) of the
outstanding voting stock of a corporation (or other majority equity and control
interest if not a corporation), or (ii) the possession of power to direct or
cause the direction of the management and policy of such corporation or other
entity, whether through the ownership of voting securities, by statute,
according to the provisions of a contract.
(F) If in a transaction described in clause (1) of Section
12.9(A), the Credit Test has not been satisfied, but Landlord nevertheless
consents thereto pursuant to the provisions of Section 12.5, the assignee in
such transaction shall, for purposes of Section 3.7, Article 19 and Section
24.1(B)(3), be deemed a "Permitted Tenant" or a "Related Entity" as such terms
are used in such Section 3.7, Article 19 and Section 24.1(B)(3).
(G) Any dispute under this Section 12.9 shall be resolved by
Expedited Arbitration.
Section 12.10 (A) Any agreement pursuant to which Tenant is relieved
from the
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obligation to pay, or a third party agrees to pay on Tenant's behalf, all or a
part of Fixed Rent or Additional Rent under this Lease shall be deemed an
assignment of this Lease solely for purposes of Section 12.4 (i.e., Landlord's
right to exercise Landlord's Option).
(B) Any agreement pursuant to which any third party undertakes
or is granted any right to assign or attempt to assign this Lease or sublet or
attempt to sublet all or any portion of the Premises, shall be deemed an
assignment of this Lease and subject to the provisions of this Article 12.
Nothing contained in this Section 12.10(B) shall be construed as prohibiting a
third party from acting on behalf of Tenant in requesting Landlord's consent to
an assignment or sublet under Article 12.
Section 12.11 (A) If Tenant shall receive any consideration from its
assignee for or in connection with the assignment of Tenant's interest in this
Lease (including, but not limited to, sums paid for the sale or rental of
Tenant's Property, Alterations or any other Tenant fixtures, leasehold
improvements, equipment, furniture or other personal property, less, the then
net unamortized or undepreciated cost thereof (determined on the basis of
Tenant's federal income tax returns), Tenant shall account to Landlord therefor
and shall pay to Landlord, as additional rent hereunder, fifty percent (50%) of
such consideration as and when the same are paid to Tenant by the assignee, less
any commercially reasonable "Transaction Costs" (as hereinafter defined), to the
extent the same are reasonably incurred and are actually paid by Tenant. The
foregoing provisions of this Section 12.11(A) shall not apply to any assignment
to a Permitted Tenant.
(B) If Tenant shall sublet the Premises to anyone for rents or
other consideration which for any period shall exceed the Fixed Rent and
Additional Rent payable under this Lease for the same period, Tenant shall
account to Landlord therefor and shall pay to Landlord, as additional rent
hereunder, fifty percent (50%) of such excess rents or other consideration as
and when the same are paid to Tenant by the subtenant, less any commercially
reasonable Transaction Costs, to the extent the same are reasonably incurred and
are actually paid by Tenant. The foregoing provisions of this Section 12.11(B)
shall not apply to any subletting to a Permitted Tenant.
(C) As used in this Section 12.11, the term "Transaction
Costs" shall mean the following specific costs and expenses (to the extent such
amounts are commercially reasonable and customary under the circumstances) (i)
brokerage commissions; (ii) alterations made by Tenant for the purpose of
preparing the Premises for the assignee or subtenant; (iii) advertising
expenses; (iv) attorneys' fees and expenses in preparing and/or negotiating the
assignment document or the sublease; (v) free rent or other rent abatements or
concessions given to a subtenant; (vi) tenant allowance or other tenant
concessions paid by Tenant; (vii) in the case where Tenant never physically
occupies all or a portion of the Premises in the case of an assignment, or the
portion of the Premises being sublet in case of a sublease, the unamortized or
undepreciated costs of those leasehold improvements to the Premises (calculated
in accordance with GAAP) paid for by Tenant in their entirety and leased or
sold, as the case may be, and used by the assignee or sublessee (in the portion
of Premises being sublet) in such subletting or assignment; and (viii) lease
"takeover" costs actually paid by Tenant to a third party landlord of other
space leased by the sublessee or assignee, to induce it to enter into the
sublease or assignment, less any net rentals received by Tenant from the
reletting of such other space or the assignment of the other lease thereof. As
part of the Background Information required of Tenant, Tenant shall, at the time
of notice to Landlord of such assignment or subletting, furnish to Landlord
detailed evidence documenting the maximum Transaction Costs that would be
incurred by Tenant if the assignment or subletting were to be effected.
Section 12.12 The provisions of this Article 12 shall not apply to any
User.
Section 12.13 (A) If Tenant assumes this Lease and proposes to assign
the same pursuant to the provisions of ll U.S.C. Section 101 et. seq (the
"Bankruptcy Code") to any person or entity who shall have made a bona fide offer
to accept an assignment of this Lease on terms acceptable to Tenant, then notice
of such proposed assignment shall be given to Landlord by Tenant no later than
twenty (20) days after receipt by Tenant of such bona fide offer, but in any
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event no later than ten (10) days prior to the date that Tenant shall make
application to a court of competent jurisdiction for authority and approval to
enter into such assignment and assumption. Such notice shall set forth (a) the
name and address of such person, (b) all of the terms and conditions of such
offer, and (c) adequate assurance of future performance by such person under
this Lease, including, without limitation, the assurance referred to in Section
365 (b)(3) of the Bankruptcy Code. Landlord shall have the prior right and
option, to be exercised by notice to Tenant given at any time prior to the
effective date of such proposed assignment, to accept an assignment of this
Lease upon the same terms and conditions and for the same consideration, if any,
as the bona fide offer made by such person, less any brokerage commissions which
would otherwise be payable by Tenant out of the consideration to be paid by such
person in connection with the assignment of this Lease.
(B) The term "adequate assurance of future performance" as
used in this Lease shall mean that any proposed assignee shall, among other
things: (a) deposit with Landlord on the assumption of this Lease an amount
equal to the then annual Fixed Rent and additional rent as security for the
faithful performance and observance by such assignee of the terms and
obligations of this Lease, which sum shall be held in accordance with the
provisions of Article 29 hereof; (b) furnish Landlord with financial statements
of such assignee for the prior three (3) fiscal years, as finally determined
after an audit and certified as correct by a certified public accountant, which
financial statements shall show a net worth of at least equal to the net worth
of the Tenant named herein on the date hereof; (c) provide such other
information or take such action as Landlord, in its reasonable judgment, shall
determine is necessary to provide adequate assurance of the performance by such
assignee of its obligations under this Lease.
Section 12.14 In the event of a permitted assignment of this Lease,
Landlord shall thereafter be required to deliver to the Tenant named herein or
Permitted Tenant thereof, as assignor, a duplicate copy of any notice required
to be given to the assignee, as Tenant hereunder, pursuant to Article 26 hereof,
and such notice may be given to the Tenant named herein or Permitted Tenant
thereof and such assignee concurrently. It is agreed that the Tenant named
herein or Permitted Tenant thereof shall have the same opportunity to cure any
default which is the subject of any such notice, and the same time period within
which to effect such curing as is available to such assignee, and such rights as
are provided to assignor in Section 16.1(E) hereof. In connection with the
rights of assignor hereunder, notwithstanding anything contained in this Lease:
(i) assignor may be granted by assignee a lien or security interest or other
security device as to Tenant's interest in this Lease, subordinate to Landlord's
interest in this Lease and all interests to which this Lease is subordinate;
(ii) the Lease may be re-assigned to assignor in connection with enforcement of
such lien or security interest or other security device or assignment in lieu
thereof if all such defaults which are the subject of such notice shall be cured
by assignor, and the provisions of Sections 12.4, 12.5, 12.7 and 12.9 shall not
apply to such reassignment; (iii) nothing herein shall be deemed to release
assignee of any liability under this Lease; and (iv) if this Lease may be
re-assigned pursuant to clause (ii) above, but the default set forth in the
notice shall have been an Event of Default as to assignee under Section 16.1(E),
and all other defaults under the Lease shall be cured by assignor, the Lease may
be re-assigned to assignor and thereafter the existence of the Event of Default
under Section 16.1(E) as to assignee shall be deemed cured. A Guarantor of this
Lease shall have the same rights given to assignor hereunder and under Section
16.1(E), as if references herein and therein to "assignee" meant "Tenant" and
references to "assignor" meant Guarantor, such rights of Guarantor to run
concurrently with any of those of assignor, if applicable. Assignor and
Guarantor hereby jointly and severally indemnify and hold Landlord harmless from
and against any and all claims, actions, demands, costs, losses and liabilities
which may be incurred by Landlord in connection with the acts of assignor or
Guarantor pursuant to this Section.
Section 12.15 (A) Notwithstanding anything to the contrary contained in
this Article 12, Landlord hereby agrees to, and upon request of Tenant shall,
confirm in writing to each "Qualifying Subtenant" (as such term is hereinafter
defined), that with respect to each subtenant under any permitted sublease which
shall demise a portion of the Premises consisting of not less than (i) one (1)
full floor of the Building, consisting of the then upper-most floor of the
Premises or the then bottom-most floor of the Premises together with any portion
of the
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Premises or any one or more floors which are contiguous to such "end floor", or
(ii) any entire floor (together with any portion of the premises on any one or
more floors contiguous thereto) which is contiguous to an "end floor" which is
the subject of a sublease with respect to which Landlord previously gave a
non-disturbance and attornment agreement to a subtenant not then in default
beyond any applicable notice and grace period (each a "Qualifying Subtenant"),
and which shall contain the provision set forth in subsection 12.15(B) below, in
the event of a termination, re-entry or dispossess of Tenant by Landlord under
this Lease due to Tenant's default of this Lease, Landlord shall not cancel the
sublease of such Qualifying Subtenant nor shall Landlord otherwise name such
Qualifying Subtenant in any action against Tenant, or otherwise disturb such
Qualifying Subtenant's quiet and peaceful possession of the subleased premises
if and on condition that: (y) such Qualifying Subtenant shall not be in default
under its sublease, beyond any applicable grace periods provided therein for the
curing of such default, and (z) the guarantor, if any, of the obligations of
subtenant under the sublease shall confirm in writing to Landlord that any such
guaranty shall continue in full force and effect with respect to all of the
obligations of such Qualifying Subtenant to be performed or observed under such
sublease (as same may be modified pursuant hereto).
(B) In the event of a termination, re-entry or dispossess of
Tenant by Landlord as aforesaid, then, with respect to any Qualifying Subtenant,
Landlord shall take over all of the right, title and interest of Tenant, as
sublandlord, under such sublease, except that all of the limitations described
in clauses (i) through (vii) of Subsection 12.5(A)(12) hereof shall apply to
Landlord. In addition, it shall be expressly understood and agreed (and the
non-disturbance agreement with respect to any Qualifying Subtenant shall so
provide) that notwithstanding anything to the contrary contained in such
sublease, Landlord shall have no obligation to provide any maintenance, repairs
or other services to such Qualifying Subtenant which shall be in excess of or in
addition to those provided for in this Lease, and the Qualifying Subtenant shall
pay to Landlord, as Additional Rent during each year of the term of such
sublease (x) the cost of all expenses of maintenance, repairs, providing
services and general operation and management of the Building, the Premises and
the Real Property (other than Taxes and Operating Costs, which are to be paid in
accordance with subsection 12.15(D) below), payable by Tenant to Landlord
pursuant to the terms of this Lease, and (y) any and all other charges payable
by Tenant to Landlord pursuant to the terms of this Lease, all such amounts
which are expressly based upon square footage to be multiplied by a fraction,
the numerator of which shall be the number of rentable square feet in such
subleased premises, and the denominator of which shall be the number of rentable
square feet in the Premises.
(C) Any such Qualifying Subtenant shall execute and deliver to
Landlord any instruments (including, but not limited to, a new agreement of
lease) as Landlord may reasonably
request to evidence the aforedescribed attornment. Tenant shall reimburse
Landlord as Additional Rent upon demand, for all costs and expenses reasonably
and actually incurred by Landlord in connection with the preparation and review
of any such instruments and other correspondence and notices in connection
therewith, including, without limitation, reasonable legal costs actually
incurred in connection therewith.
(D) Landlord's obligation to execute and deliver a
non-disturbance and attornment agreement in favor of any Qualifying Subtenant
shall be further conditioned upon the following: (i) the Fixed Rent and
Additional Charges payable by such Qualifying Subtenant per rentable square foot
of its sublease shall be at an annual rate not less than the applicable Fixed
Rent and Additional Charges for the same period of time payable by Tenant under
this Lease (or if the sublease does not provide for the payment of same, then
the non-disturbance and attornment agreement shall provide or be deemed to
provide that if this Lease shall terminate, the Fixed Rent and Additional
Charges payable by such Qualifying Subtenant under the Sublease shall be
increased (but not decreased) if necessary to equal the Fixed Rent and
Additional Charges payable under the Lease had it not been terminated with
respect to the sublet premises on a per square foot basis), and (ii) either (y)
such Qualifying Subtenant shall, in Landlord's reasonable judgment, be
financially capable of meeting the obligations imposed under the sublease as the
same mature, or (z) such Qualifying Subtenant shall, as a condition precedent to
Landlord's obligation to recognize such subtenant under the non-disturbance
agreement, post a reasonable security deposit to assure
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performance of its obligations under the sublease.
ARTICLE 13
ELECTRICITY
Section 13.1 (A) Landlord shall furnish electric energy to Tenant in
the Premises measured by, a check meter installed by Landlord as part of
Landlord's Work for the purpose of measuring Tenant's consumption of electric
energy at and within the Premises and all equipment and facilities therein
including, but not limited to, the A/C System servicing the Premises (whether or
not located therein). Tenant shall pay to Landlord, as Additional Rent, the
"Tenant's Total Electric Amount" (as such term is defined in Section 13.1(B),
below determined in the manner set forth below in Section 13.1(B) which Tenant's
Total Electric Amount shall include a fee not to exceed three (3%) percent of
the "Tenant's Electric Amount" (as such term is defined in Section 13.1(C)
below) for the period in question as reimbursement for Landlord's expenses in
the administrating, maintaining, reading and billing of the electric usage as
shown on such check meter and determining the Tenant's Electric Amount (the
"Electrical Administrative Fee").
(B) For purposes of this Lease and this Article 13, the term:
(1) "Tenant's Electric Amount" shall mean and shall
be calculated by (a) dividing (i) the electric consumption for the
Building and the Property as measured by the utility company electric
meter(s) for the Building, as reflected on Landlord's bill from the
electric utility company supplying electric energy to the Building and
the Property, for the particular billing period in question, by (ii)
the amount of the kwh (energy) as billed and shown on such electric
bill (the "Building's Electric Amount"), and (b) multiplying the
Building's Electric Amount obtained in subdivision (1) by the Tenant's
kwh (energy) as shown on and measured by Tenant's check meter(s)
measuring Tenant's electric consumption for the billing period in
question; and
(2) "Tenant's Total Electric Amount" shall mean and
shall be calculated by multiplying (a) the Tenant's Electric Amount, by
(b) 1.03 (being the Electrical Administrative Fee).
(C) Where more than one check meter measures the electric
service to Tenant, the electric service rendered through each check meter to
measure the Tenant's Electric Amount may be computed and billed separately in
accordance with the provisions hereinabove set forth, or at Tenant's option, may
be computed and billed in the aggregate through the use of a so-called
"totalizer", which totalizer shall be installed, maintained and repaired, as
required, at Tenant's sole cost and expense, which installation shall be deemed
an Alteration for all purposes of this Lease. At Landlord's direction, Tenant
may be required to remove any totalizer so installed from the Premises on the
Expiration Date of this Lease.
(D) (1) On the first day of each calendar month during the
Term of this Lease, commencing on the Commencement Date, Tenant shall pay
Landlord, together with Tenant's monthly payment of Fixed Rent hereunder, the
sum of Sixty-Seven Thousand Five Hundred and 00/100 Dollars ($67,500),
representing a payment on account of one month's Tenant's Total Electric Amount,
which amount shall be adjusted from time to time by Landlord (but not more often
than once every six (6) months and such notice of adjustment shall be given no
later than the tenth (10th) day of a month) to reasonably approximate the actual
monthly Tenant's Total Electric Amount (the "Estimated Tenant's Monthly Electric
Amount").
(2) Bills for Tenant's Total Electric Amount shall be
furnished to Tenant upon preparation thereof by Landlord on a monthly
basis. If Landlord fails to provide Tenant with a monthly bill for a
particular month, and such failure shall continue for more than five
(5) days after notice thereof by Tenant to Landlord given after the end
of such month, then Tenant shall not be obligated to pay an Estimated
Tenant's Monthly Electric Amount until such bill has been so furnished
to Tenant. Landlord shall use each Estimated
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Tenant's Monthly Electric Amount to pay to the utility company each
monthly installment of Tenant's Total Electric Amount.
(3) If Landlord uses less than all of an Estimated
Tenant's Monthly Electric Amount to pay Tenant's Total Electric Amount
for a particular month (such amount not used is called the "Excess
Electric Amount"), then within twenty (20) days after Tenant's payment,
Landlord shall refund the Excess Electric Amount to Tenant and, if
Landlord fails to do so, Tenant may deduct such amount from the next
installment of the Estimated Tenant's Monthly Electric Amount (which
installment shall be deemed a non-recurring item of Additional Rent).
(4) If the amount of the Tenant's Total Electric
Amount for a particular month is greater than the Estimated Monthly
Electric Amount paid by Tenant for such month (such deficiency is
called the "Electric Deficiency"), Tenant, within twenty (20) days
after written demand is made therefor, shall promptly pay to Landlord
the amount of the Electric Deficiency and Tenant shall pay Landlord the
full Estimated Monthly Electric Amount on the first day of the next
month as provided hereunder. An Electric Deficiency payment shall be
deemed a non-recurring item of Rent.
(5) Each electric bill shall indicate, with
reasonable specificity, the manner in which the Tenant's Total Electric
Amount for the period in question as set forth thereon, has been
calculated, including the Landlord's Electric Amount for the period in
question, including the charges, rates and terms utilized in
calculating Landlord's Electric Amount and the calculation of the
Tenant's Electric Amount and the Tenant's Total Electric Amount in
accordance with the provision of Section 13.1(C) above.
(6) Landlord shall, after receipt from Tenant of a
written request therefor, supply Tenant with a copy of Landlord's
electric bill for a particular billing period as requested by Tenant in
such written notice, within thirty (30) days after Landlord receives
such written notice from Tenant. Notwithstanding the foregoing, if
Tenant fails to request from Landlord a copy of Landlord's electric
bill for a particular billing period within one (1) year after the
expiration of such billing period, Tenant shall be deemed to have
waived and shall be deemed precluded from asking or requesting Landlord
to supply such electric bill, and Landlord shall have no obligation
thereafter to supply Tenant with a copy of such electric bill for such
billing period.
Section 13.2 Tenant agrees that it will not request or require from
Landlord more than eight (8) watts per rentable square foot demand electric
capacity to the Premises. Further, Tenant will make no electrical installations,
alterations, additions or changes to electrical equipment or appliances, which
will (A) exceed such eight (8) watts per rentable square foot demand limitation,
and (B) materially adversely affect any of the Building Systems, including the
Building's mechanical or electrical systems or the Structural Elements
(collectively the "Tenant's Permitted Electric Demand") Tenant agrees to perform
any such work in accordance with the provisions of Article 4 hereof, including
the receipt of all required approvals of Landlord, Legal Authorities or others.
Section 13.3 (A) Tenant covenants and agrees that at all times its use
of electric current will not exceed the Tenant's Permitted Electric Demand. If,
in Landlord's commercially reasonable judgment, Tenant's electrical requirements
in excess of Tenant's Permitted Electric Demand necessitate installation of an
additional riser, risers or other proper and necessary equipment, the same may
(or, if requested by Tenant, shall) be installed by Landlord (if Landlord
determines such installation is practicable in its reasonable judgment) at
Tenant's sole cost and expense, which shall be chargeable and collectible as
Additional Rent and paid within thirty (30) days after the rendition of a bill
to Tenant therefor. The aforesaid cost shall be prorated to the extent such
riser capacity or other equipment so installed is in addition to that needed to
supply such excess of Tenant's Permitted Electric Demand.
(B) (1) Landlord hereby agrees that, Tenant shall have the
right to the sole
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and exclusive use, of the vertical shaft area(s) in the Building's core space,
in the location(s) as shown on the plans therefor and designated as the Electric
Closet on Exhibit I annexed hereto and made a part hereof for installation of
the electrical conduits and risers, as provided below (collectively the
"Dedicated Shaft Area(s)"). Tenant shall have the sole and exclusive use of the
Dedicated Shaft Area(s) at all times during the term of this Lease, and Landlord
will not use or permit anyone else to use the Dedicated Shaft Area(s) during the
Lease Term.
(2) Tenant shall have the right to install within the
Dedicated Shaft Area(s), at Tenant's sole cost and expense, dedicated electrical
conduits and risers to service Tenant's electrical requirements in the Premises,
for emergency power requirements and other critical electric loads, subject,
however, to the restrictions as to electrical capacity as are set forth in
Sections 13.2 and 13.3(A) above, and further, subject, however, to the
requirements of Article 4 regarding the performance of such electrical
installation work as a Structural Alteration, including payment to Landlord of
the fees and expenses as set forth in Section 4.7 of this Lease. In the
alternative, Tenant may request that Landlord perform, and Landlord will perform
on behalf of Tenant, as Tenant's contractor, such electrical and
telecommunications conduit and riser installation work at Tenant's cost and
expenses (which cost and expense shall include a mark-up of ten (10%) percent
profit and five (5%) percent overhead.
(3) Tenant shall be required, at Tenant's sole cost
and expense, to keep in good condition, maintain, repair and replace, if
required during the Term of this Lease, any of the electrical conduits and
risers installed within the Dedicated Shaft Area(s) which shall be deemed to be
Alterations for all purposes of this Lease.
(4) Landlord agrees that Tenant shall have
twenty-four (24) hour access to the Dedicated Shaft Area(s) for the purposes of
maintaining and servicing the electrical risers, conduits and other
installations therein, provided, however, that Landlord shall have the right to
have a supervisory person present during Tenant's access to the Dedicated Shaft
Area(s) as aforesaid . Tenant agrees that Tenant shall pay Landlord's
supervisory fee therefore as provided in Section 4.7.
Section 13.4 The change at any time of the adequacy, quality or
character of electric service shall in no way make Landlord liable or
responsible to Tenant for any loss, damages or expenses which Tenant may
sustain, except to the extent caused by the negligent or willful acts or
omission of Landlord, its agents or employees.
Section 13.5 Tenant may, at Tenant's option, purchase from Landlord or
its designee all lighting tubes, lamps, bulbs and ballasts used in the Premises
and Tenant shall pay, within thirty (30) days after demand, as additional rent,
Landlord's reasonable charges for providing and installing the same.
Section 13.6 Landlord shall have the right, in Landlord's sole
discretion, to select the utility provider and/or supplier of electric energy
for the Building. Landlord agrees to use commercially reasonable efforts to
obtain the lowest electrical rates readily available to it, but in doing so,
Landlord shall, to the extent commercially reasonable, take into consideration
the level and quality of service, supply and product offered by prospective
utility providers and/or suppliers. Notwithstanding the foregoing, if Landlord
is required by Legal Requirements to permit Tenant to elect the services of an
electric service provider other than the public utility company that Landlord
has selected to service the Building (each such provider is called an "ASP"),
Tenant shall have the right, with Landlord's prior written consent, to convert
to the services of an ASP to provide electric service to Tenant and the
Premises. Landlord shall not reasonably withhold or delay its consent to the ASP
so long as Tenant and the ASP agree to comply with, and shall fully comply with,
the terms and conditions of this Lease including, without limitation, the
provisions regarding Alterations and insurance, as well as all requirements and
conditions precedent which Landlord shall, in its good faith judgment, require
with respect to the utilization of an ASP in order to protect Landlord and
Landlord's interest in the Building, the Building Systems and other tenants or
occupants in the Building. The conversion to an ASP shall be at Tenant's sole
risk and at Tenant's sole cost and expense, without any liability on the
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part of Landlord with respect to the conversion and thereafter the utilization
of electric services provided by the ASP. The ASP may use, without charge, the
then risers, conduits and other Building electric systems serving the Premises
in the supply of electric energy to the Premises (including use of additional
shaft areas subject, however, to Landlord's reasonable approval as to number and
location of such shaft areas if additional risers are required by Tenant (back
to the point of entry in the Building) and use of any Dedicated Shaft Area(s)),
and such additional risers or conduits which may be required by such ASP, which
shall be installed by Landlord, at Tenant's expense, as hereinabove provided,
subject however, to the then use of the same by the existing electric utility
company supplying electric energy to the Building, Landlord and other tenants or
other occupants in the Building.
Section 13.7 Landlord hereby advises Tenant that Landlord shall furnish
and maintain throughout the Lease Term eight (8) watts per rentable square foot
demand electric capacity to the Premises, exclusive of electric energy consumed
by the A/C System and Heating System units servicing the Premises.
ARTICLE 14
ACCESS TO PREMISES
Section 14.1 (A) Landlord, or Landlord's agents, shall have the right
(but shall not be obligated) to enter the Premises in an emergency, at any time,
and, at other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Landlord may deem reasonably necessary or
desirable to any portion of the Building or which Landlord may elect to perform
in the Premises following Tenant's failure, after the expiration of any notice
and/or grace period provided under this Lease, or promptly in the event of an
emergency, respectively, as the case may be, to make repairs or perform any work
which Tenant is obligated to perform under this Lease, or for any other
reasonable purpose. Tenant shall permit Landlord to use, maintain and replace
pipes and conduits in and through the Premises and to erect new pipes and
conduits therein, provided such new pipes and conduits are, to the extent
practicable, within the walls, above the ceiling or below the finished floor or,
if not practicable, then "snug" to columns or ceilings whenever practicable as
will not materially interfere with or impair Tenant's layout or use of the
Premises or detract from the appearance thereof. Landlord may, during the
progress of any work in the Premises, take all necessary materials and equipment
into the Premises without the same constituting an eviction nor shall the Tenant
be entitled to any abatement of Rent while such work is in progress nor to any
damages by reason of loss or interruption of business or otherwise; provided,
however, no such exercise of this right by Landlord shall unreasonably impair
Tenant's access to, or otherwise unreasonably or materially interfere with
Tenant's ability to use the Premises as contemplated by this Lease, subject,
however to Section 14.2 and 25.2 of this Lease.
(B) Throughout the Term, Landlord shall have the right to
enter the Premises at reasonable hours for the purpose of showing the same to
prospective purchasers or Mortgagees or Lessors. During the nine (9) month
period prior to the Fixed Expiration Date or the expiration of any Renewal Term,
Landlord may exhibit the Premises to prospective tenants thereof.
(C) If Tenant is not present to open and permit an entry into
the Premises, Landlord or Landlord's agents may enter the same whenever such
entry may be necessary or permissible by master key or forcibly, and provided
reasonable care is exercised to safeguard Tenant's property, such entry shall
not render Landlord or its agents liable therefor (provided reasonable care is
used in such entry), nor in any event shall the obligations of Tenant hereunder
be affected thereby. Nothing herein contained, however, shall be deemed or
construed to impose upon Landlord any obligation, responsibility or liability
whatsoever, for the care, supervision or repair of the Premises or any part
thereof, other than as herein expressly provided.
Section 14.2 In connection with any such entry pursuant to Sections
14.1(A) and (B) hereof, except in the case of an emergency, Landlord shall give
Tenant reasonable prior written notice (but not less than 48 hours) and, if
required by Tenant, Landlord shall be accompanied by
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a representative of Tenant, who shall be made available by Tenant for such
purposes. All work done during the course of such entry must be done by Landlord
in a good and workmanlike manner and with due diligence so as to result in
minimal interference with Tenant's ability to use the Premises as contemplated
by this Lease. No work shall result in a diminution of Tenant's usable area,
except to a de minimis extent, and Landlord shall not store any materials in the
Premises except during the performance of such work and shall use as small a
portion of the Premises for such storage as is reasonably practicable, or stage
work to any other portion of the Property from the Premises. After completion of
any such work, Landlord shall restore the Premises as closely as possible to the
condition of existing immediately prior the commencement of such work, and shall
remove its materials and equipment therefrom. Any information obtained by
Landlord as a result of such entry shall be kept confidential.
Section 14.3 Landlord acknowledges that by virtue of the nature of
Tenant's business, Tenant has certain security and confidentiality requirements
such that portions of the Premises are kept locked and are inaccessible to
persons unauthorized by Tenant (collectively, the "Secured Areas"). Landlord,
therefore, agrees that except in cases of emergency, Landlord shall,
notwithstanding anything to the contrary contained herein, have no right of
access to the Secured Areas, provided, however, that (A) Tenant shall deliver to
Landlord floor plans of the Premises designating the Secured Areas, (B) such
designation shall be reasonable in light of Tenant's business in the Premises,
and (C) Landlord shall have no liability for providing cleaning or other
services to the Secured Areas that requires access to the Secured Areas, unless
Tenant shall provide Landlord with such access to the Secured Areas for purposes
of providing cleaning or such other services at those times that Landlord shall
reasonably designate in accordance with Landlord's ordinary cleaning schedule
or, in the case of such other services, at such times as Landlord shall
reasonably designate in accordance with its schedule for such other services,
such as the schedules for Building maintenance and repairs.
ARTICLE 15
PARKING
Section 15.1 (A) (1) (a) (i) On the "Parking Commencement Date",
Landlord shall make available or cause to be made available to Tenant three
hundred seventy -five (375) parking spaces, (the "Parking Spaces"), in that
certain multi-level parking garage located at 479 Rear Washington Boulevard,
Jersey City, New Jersey and as shown substantially in the location on the
NEWPORT site plan annexed hereto as Exhibit A-1 by the designation "PARKING
GARAGE" (the "Parking Garage") which Landlord is entitled to use as more
particularly set forth below in subsection 15.1(A)(2) below, for use by Tenant,
its Related Entities and Users, and their respective agents, employees or
visitors.
(ii) For purposes of this Article 15 and this Lease,
the term "Parking Commencement Date" shall mean the later of the
Commencement Date or the date on which Tenant requires the use of the
Parking Spaces which date shall be no earlier than October 1, 1999.
(b) All Parking Spaces which are made available to
Tenant under this Lease shall be solely for "automobiles." For purposes
of this Lease and this Article 15, the term "automobiles" shall mean
non-commercial passenger vehicles, such as passenger automobiles, sport
utility vehicles, small pick-up trucks, family passenger vans and other
like vehicles, provided, however that all of the aforementioned
non-commercial passenger vehicles are able to meet the height
limitations of the Parking Garage, and can be parked, and shall fit,
solely within the painted or striped lines of a particular Parking
Space in the Parking Garage.
(2) (a) Landlord has advised Tenant and Tenant hereby
acknowledges having been so advised by Landlord that Landlord's right
to make available or cause to be made available the Parking Spaces to
Tenant, and to permit Tenant to use the Parking Spaces and have access
to, from and within the Parking Garage, derive from
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rights granted to Landlord (or Landlord's predecessor-in-interest, as
the case may be), under and pursuant to the following agreements and
instruments: (i) approximately two hundred fifty (250) of the Parking
Spaces are being made available under (x) that certain South Garage
Amended and Restated Declaration of Easements dated as of July 28, 1992
among Newport Associates Phase 1 Developers Limited Partnership and
Newport Garage L.P., collectively, as Grantors and LF Newport Jersey
Limited Partnership, Simon Newport Office Company Limited Partnership
("SNOC"), Newport Associates Development Company, NC Mall Associates
and NC Parking Urban Renewa1 Co., collectively, as Grantees, which
Declaration was recorded in Book 4516, Page 027 of the Hudson County
Register of Deeds (the "Register's Office"), and which Declaration was
modified, amended and supplemented by First Amendment to South Garage
Amended and Restated Declaration of Easements Agreement dated as of
May, 1998 among the Grantors, the Grantees, the existing Lessors named
on Schedule 4 hereto and Landlord, and which First Amendment was
recorded in Book 5308, Page 256 in the Register's Office; and (y) that
certain South Garage Access Easement Agreement dated as July 28, 1992
among Newport Associates Development Company, Newport Associates Phase
1 Developers Limited Partnership and NC Mall Associates, collectively
as Grantors, and Newport Garage, L.P. as Grantee, which Agreement was
recorded in Book 4516, Page 167 of the Register's Office, and which
Agreement was modified, amended and supplemented by First Amendment to
South Garage Access Easement Agreement by and among the aforesaid
parties, and which First Amendment was recorded in Book 5308, Page 245
of the Register's Office; and (ii) approximately one hundred twenty
five (125) of the Parking Spaces are being made available under that
certain Garage Space Lease dated March 22, 1999 between SNOC and
Landlord. The aforesaid agreements and instruments, and all amendments
thereto, is each called a "Superior Garage Agreement" and are
collectively called the "Superior Garage Agreements."
(b) Tenant hereby acknowledges having
receiving from Landlord a true and complete copy of each Superior
Garage Agreement, and further acknowledges having read the same.
(3) Landlord hereby covenants and agrees that for so
long as this Lease is in full force and effect during the Term hereof:
(a) Tenant shall be deemed a third-party
beneficiary of all of the rights, benefits and privileges granted to
Landlord (or Landlord's predecessors-in-interest) under the Superior
Garage Agreements with respect to Landlord's provision of the Parking
Spaces hereunder and the rights required for Landlord to fulfill its
obligations to Tenant under Article 15 of this Lease; and
(b) Tenant's rights of use and enjoyment of
the Parking Spaces and the Parking Garage shall not be affected or
diminished in any way, as a result of Landlord's default or failure to
perform under any of the Superior Garage Agreements, and Landlord
shall, at its cost and expense: (i) provide to Tenant (x) concurrently
with Tenant's execution and delivery of this Lease, a certificate from
SNOC, the lessor under the Garage Space Lease, which shall provide, in
relevant part, that if such party shall foreclose Landlord's interest
in the Garage Space Lease, such party will not make Tenant a party
defendant to such foreclosure or termination proceeding, or to disturb
Tenant's rights to the Parking Spaces under this Lease or terminate or
disturb Tenant's rights to use the Parking Garage hereunder, and will
recognize Tenant's rights to the Parking Spaces hereunder on the same
terms and conditions as are contained in this Lease, subject to the
provisions herein set forth, provided no Event of Default shall at the
time have occurred and be continuing hereunder; and (y) at such time as
Landlord mortgages or encumbers its interests in any of the Superior
Garage Agreements by a mortgage, a certificate from such mortgagee
which shall include the foregoing covenant and statement as provided in
subdivision (x) above; and (ii) cause the Non-Disturbance Agreements
from the existing Lessors to be provided to Tenant upon Lease execution
and delivery, as set forth in Section 8.(D) of this Lease, to include
the foregoing covenant and statement as set forth
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in subdivisions (1) above.
(B) (1) Tenant shall pay, to Landlord, as Additional Rent,
during the Initial Term, a monthly rental charge per Parking Space (whether or
not such Spaces are actually utilized by Tenant subject, however, to the
provisions of Section 15.6 of this Lease) equal to $120.00, payable on the first
day of each month, commencing on the Parking Commencement Date in the same
manner as Fixed Rent; provided, however, that such monthly rental charge shall
increase each year during the Term of the Lease commencing on the first (1st)
anniversary of the Rent Commencement Date, and on each successive anniversary
date thereafter, by three percent (3%) of the monthly charge, as adjusted as
provided herein, payable for the immediately preceding year.
(2) During each Renewal Term, Tenant shall pay to
Landlord a monthly charge per Parking Space which shall be equal to the fair
market value for a monthly parking space in the "Comparable Parking Garages" (as
such term is defined in Section 15.10(A) below) as of the commencement of the
Renewal Term in question, established and determined in accordance with the
procedure set forth in Sections 2.7(B) to (F) this Lease, and adjusted as of
each anniversary date of the Rent Commencement Date as provided in subsection
15.1(B)(1) above.
(3) (a) Landlord hereby agrees that for so long as
Tenant shall be entitled to an abatement of Fixed Rent pursuant to Section 25.2,
as a result of the unrentability or inability to use or have access to the
Premises or portion(s) thereof for the reasons set forth therein, Tenant shall
be entitled to an abatement of the parking charges for the Parking Spaces not
utilized by Tenant and its Related Entities and the Users, and their respective
agents, employees or visitors hereunder in the same proportion as Fixed Rent is
abated, but if and to the extent Tenant does not use all or a portion of those
Parking Spaces during such period of the abatement, and does not use the Garage
Access Cards for the Parking Spaces in question, and Tenant shall surrender
those Garage Access Cards to Landlord. At such time as the abatement shall
cease, Landlord shall cause such Parking Garage Cards to be returned to Tenant
so that Tenant may again use such Parking Spaces.
(b) During the time of the abatement of
Tenant's payment of parking charges for the Parking Spaces (and Tenant's
surrender of the any Parking Garage Cards so surrendered to Landlord, as
aforesaid), Landlord shall have the right to lease or license for a fee or
payment the Parking Spaces in question, on a daily or monthly basis, to any
person or entity.
(c) In the event that Tenant elects to
continue to use the Parking Spaces and keeps possession of the Garage Access
Cards during any abatement of Tenant's payment of Fixed Rent as provided in
Section 25.2, Tenant shall not be entitled to any abatement of parking charges
for those Parking Spaces so used.
(C) Landlord has advised Tenant that the Parking Spaces shall
be unreserved and unassigned. At the option of the owner or operator of the
Parking Garage (the "Parking Operator"), the Parking Spaces shall be attended or
unattended.
Section 15.2 (A) Except for making the Parking Spaces available to
Tenant hereunder, Landlord shall have no responsibility with respect to any
matter arising in connection with the furnishing of Parking Spaces to Tenant and
Tenant's employees, including, without limitation, any damage to the automobiles
of Tenant and Tenant's employees. Landlord shall, however, use commercially
reasonable efforts to cause the owner of the Parking Garage and/or the Parking
Operator to insure that adequate security is provided in the Parking Garage. In
addition, Landlord shall use commercially reasonable efforts to cause the owner
of the Parking Garage and/or the Parking Operator to insure that the Parking
Garage is adequately maintained throughout the Term, as more particularly set
forth in Section 15.10.
(B) Tenant shall have no right to charge or accept from any
person any
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fee or other consideration for the use of any of the Parking Spaces, except to a
permitted subtenant, Related Entity or User or an employee of Tenant or such
subtenant, Related Entity or User, as part of such employee's monthly parking;
provided, however, that, if any fee, charge or sum paid to Tenant (on a per
month basis) by any subtenant (not a Related Entity or User) is in excess of the
monthly rental charge per Parking Space paid by Tenant to Landlord hereunder
(the "Parking Payment Excess"), Tenant shall promptly (1) provide Landlord with
a notice setting forth the names of those persons or entities who are paying to
Tenant a Parking Payment Excess and the amount(s) thereof and the calculation of
Landlord's fifty (50%) percent portion thereof; and (2) disburse to Landlord
fifty (50%) of the Parking Payment Excess. Landlord shall have the right to
verify the information set forth on such notice with reasonable access to
Tenant's books and records for review of such payments. Only those persons
designated by Tenant (the names of which shall be furnished in writing to
Landlord as hereinafter provided in Section 15.9), may use the Parking Spaces.
Section 15.3 Notwithstanding anything in this Lease or this Article 15
to the contrary, and except as expressly provided in Section 15.6 of this Lease,
Tenant's obligations under this Lease not be in any way affected by Landlord's
inability to make available or cause to be made available any or all of the
Parking Spaces to Tenant or Tenant's employees by reason of (A) Unavoidable
Delays with respect to any further construction of, or modification to, the
Parking Garage, (B) damage to the Parking Garage, (C) subject to the provisions
of Section 11.1 hereof, the whole or any part of the Parking Garage being
acquired or condemned for any public or quasi-public use or purpose, or (D) any
other reason beyond Landlord's reasonable control, subject, however, to the
provisions of Section 10.5 above and 15.6 below.
Section 15.4 If, on the Parking Commencement Date, Landlord has not
provided Tenant with the aforesaid Parking Spaces in the Parking Garage, for any
reason whatsoever, Landlord will temporarily make available to Tenant the
non-exclusive use of the number of parking spaces required by Tenant at such
time (which in no event shall exceed the number of Parking Spaces set forth in
Section 15.1(A)), as provided hereunder in a parking lot reasonably proximate to
the Building located in the "Acceptable Parking Area" (as such term is defined
in Section 15.6), for the monthly rental charge per Parking Space as set forth
in Section 15.1(B) above.
Section 15.5 Tenant, in its use of the Parking Garage, shall at all
times observe the rules and regulations reasonably promulgated by Landlord or
the Parking Operator with respect to the use thereof. If Tenant, its agents,
employees or visitors shall fail to observe such rules and regulations after the
expiration of any notice and/or grace period provided under this Lease, or shall
use any restricted spaces or areas, Landlord or the Parking Operator shall have
the right and option, in addition to any other remedy they may have, to have the
subject vehicle to be towed away and stored at the sole risk and expense of the
owner of such vehicle.
Section 15.6 Subject to the provisions of Section 15.4, if any portion
of the Parking Garage shall become unavailable for any reason whatsoever,
Tenant's inability to use the same or the Parking Spaces therein shall not
relieve Tenant of any of its obligations under this Lease, including the payment
of Rent, (other than the payment of the aforesaid parking fees), and this Lease
shall remain in full force and effect in accordance with its terms; provided,
however, that Landlord shall use all commercially reasonable efforts to provide
alternate and comparable parking facilities for the use of Tenant and its
employees, and during the use of such alternate interim parking facilities,
Tenant shall pay a monthly charge for each space, at the same rate as would be
payable by Tenant for the unavailable Parking Spaces in the Parking Garage.
Alternate parking facilities withing the following boundaries (the "Acceptable
Parking Area"), shall be deemed acceptable to Tenant: Henderson Street, Thomas
Gangemi Drive, Newport Parkway and the Hudson River.
Section 15.7 Tenant hereby agrees that Tenant's use of the Parking
Spaces and Parking Garage shall be at Tenant's sole risk, and Landlord shall
have no liability to Tenant with regard thereto. Further, if any automobile or
the contents thereof shall be damaged, lost or stolen while in the Parking
Garage, Landlord shall not be liable for any damage thereto, nor for any injury
to Tenant, or its subtenants, or its or their agents, employees, licensees or
visitors, or the property
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of any of the same. Landlord shall, however, use commercially reasonable efforts
to cause the owner of the Parking Garage and/or the Parking Operator to insure
that adequate security is provided in the Parking Garage.
Section 15.8 Tenant's use of the Parking Garage shall be subject to the
terms and provisions of the Superior Garage Agreements (subject, however, to
Landlord's compliance with the provisions of subsection 15.1(A)(3)(b) above),
and shall be in common with other tenants of the Building, other tenants at
other buildings located at or the NEWPORT Project, the general public and other
parties permitted by Landlord, the owner of the Parking Garage or the Parking
Operator to use the Parking Garage.
Section 15.9 (A) (1) Landlord shall make available to Tenant, for use
by Tenant and those who may be designated by Tenant to use the Parking Spaces,
four hundred (400) parking access cards (each, a "Garage Access Card" and
collectively, the "Garage Access Cards") in order to permit Tenant and its
designated Parking Garage users, the ability to enter the Parking Garage and use
the Parking Spaces, as herein provided.
(2) In the event that any Garage Access Card(s)
provided to Tenant are lost, damaged or destroyed, and Tenant requests
that Landlord furnish Tenant with replacement Garage Access Card(s) for
those which have been lost, damaged or destroyed, Landlord shall
provide Tenant with such replacement Garage Access Card(s) at
Landlord's then cost for the same ("Replacement Cost") which shall
initially be Twenty-Five ($25.00) Dollars per Garage Access Card.
(3) Tenant hereby acknowledges and agrees that at all
times during the Term, Tenant shall be entitled to obtain from Landlord
and have in Tenant's possession, only the four hundred (400) Garage
Access Cards (whether original or replacement, as aforesaid) .
(B) Tenant shall provide Landlord or the Parking Operator with
a list of those persons to whom Tenant shall have given permission to use
Parking Spaces and any Garage Access Cards issued to Tenant and the cars used by
such persons, and shall provide Landlord with the changes thereto, from time to
time.
(C) Upon the expiration of the Term of this Lease, Tenant
shall assign and deliver to Landlord all Garage Access Cards which Tenant shall
have received from Landlord or the Parking Operator. Tenant expressly assumes
the responsibility for the return of all Garage Access Cards and shall reimburse
Landlord, as Additional Rent, for the then Replacement Cost of any missing,
lost, damaged or destroyed Garage Access Cards.
Section 15.10 (A) Landlord hereby represents and covenants as follows
that:
(1) as of the date hereof, the Superior Garage
Agreements are in full force and effect and binding upon Landlord to
the extent Landlord is a party thereto and the existing Lessors, to the
extent the existing Lessors are parties thereto;
(2) Landlord will not, during the Term of the Lease,
do or cause anything to be done, (including, without limitation, any
modification or amendment of the Superior Garage Agreements) which
would cause Landlord to (a) be in default beyond the expiration of any
applicable notice and cure periods, under any of the Superior Garage
Agreements, or (b) lose any of the benefits, rights and protections
under the Superior Garage Agreements which would otherwise materially
and adversely Tenant's rights to use the Parking Spaces hereunder and
Tenant's rights of the use and enjoyment of the Parking Garage and the
Parking Spaces, including means of access, ingress and egress to, from
and within the Parking Garage; and
(3) Landlord will cause the owner of the Parking
Garage and/or the Parking Operator thereof, at all times during the
Term of this Lease, to (a) operate,
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maintain and keep in good condition and repair the Parking Garage,
including any expansion thereof to include all or a portion of the
Parking Spaces being provided to Tenant hereunder consistent with (i)
all Legal Requirements applicable thereto, and (ii) the operation and
maintenance of other comparable multi-level commercial parking garages
of like age, construction and size, in the Comparable Market, including
the striping, lighting, elevator, snow and ice removal, rubbish,
parking attendants and security protection thereof (the "Comparable
Parking Garages"), (b) provide reasonably accessible use of the Parking
Spaces for pedestrian and vehicular access, accessible by pedestrian
access to the Building twenty-four (24) hours per day, seven (7) days
per week and (c) operate the Parking Garage so that Tenant may have 375
vehicles in the Parking Garage at any one time and may reject any
Garage Access Card presented when 375 Garage Access Cards issued to
Tenant are in use in the Parking Garage. Notwithstanding, the
foregoing, Tenant will be responsible for payment of the full daily
parking rate for any use of the Parking Spaces beyond the 375 Parking
Spaces provided herein.
(B) The term "Tenant" whenever used in this Article 15, shall
mean the Tenant named herein and any permitted assignee or other
successor-in-interest thereto, including any Permitted Tenant or Related Tenant.
ARTICLE 16
DEFAULT
Section 16.1 Each of the following events or occurrences shall be an
"Event of Default" hereunder:
(A) if Tenant shall default in the payment when due of any
installment of Fixed Rent or any recurring item of Additional Rent (for regular
monthly Additional Charges, the Estimated Tenant's Monthly Electric Amount, the
Estimated Tenant's Monthly Water Amount, the Estimated Tenant's Month Gas
Amount, and the parking fees for the Parking Spaces set forth in Article 15) as
provided in Section 2.1(C), and such default shall continue for ten (10) days
after receipt of written notice from Landlord, provided, however, that Tenant
shall be entitled to receive from Landlord no more than four (4) notices in any
twelve (12) month period of its failure to timely pay Fixed Rent or such
recurring items of Additional Rent; or
(B) if Tenant shall default in the payment when due as
provided in Section 2.1(C) of any non-recurring item of Additional Rent, and
such default shall continue for ten (10) days after receipt of written notice
from Landlord; or
(C) if the Premises shall become abandoned for more than
thirty (30) days after receipt of written notice from Landlord and Tenant fails
to provide adequate security for the Premises against damage or theft; or
(D) (1) if Tenant shall generally not, or shall be unable to,
or shall admit in writing its inability to, pay its debts as they become due; or
(2) if Tenant shall commence or institute any case,
proceeding or other action (a) seeking relief on its behalf as debtor,
or to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, or (b) seeking appointment of a receiver, trustee, custodian
or other similar official for it or for all or any substantial part of
its property; or
(3) if Tenant shall make a general assignment for the
benefit of creditors; or
(4) if any case, proceeding or other action shall be
commenced or
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instituted against Tenant (a) seeking to have an order for relief
entered against it as debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, or (b) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for
all or substantially all of its property, which in either of such cases
((i) results in any such entry of an order for relief, adjudication of
bankruptcy or insolvency or such an appointment or the issuance or
entry of any other order having a similar effect or (ii) remains
undismissed for a period of ninety (90) days; or
(5) if any case, proceeding or other action shall be
commenced or instituted against Tenant seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or
substantially all its property which results in the entry of an order
for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal, i.e., undismissed, within ninety (90)
days from the entry thereof; or
(6) if Tenant shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any
of the acts set forth in clauses (2), (3), (4) or (5) above; or
(7) if a trustee, receiver or other custodian is
appointed for substantially all of the assets of Tenant which
appointment is not vacated or stayed within thirty (30) days (the
aforesaid events set forth in this subsection 16.1(D) are hereinafter
referred to individually as a "Bankruptcy Event" or collectively, as
"Bankruptcy Events"); or
(E) if Tenant shall default in the observance or performance
of any other term, covenant or condition of this Lease on Tenant's part to be
observed or performed, including, but not limited to, Tenant's violation of any
of the terms and provisions of Article 12 of this Lease, and Tenant shall fail
to remedy such default within thirty (30) days after notice by Landlord to
Tenant of such default except that if such default is of such a nature that it
cannot with due diligence be completely remedied within said period of thirty
(30) days, and the continuance of which for the period required for such cure
will not (1) subject Landlord or any Lessor or any Mortgagee to prosecution for
a crime or any other fine or charge (unless Tenant agrees, in writing, to pay
and discharge such fine or charge), (2) subject the Premises, or any part
thereof, and/or the Land and/or the Building, respectively, or any part thereof,
to being condemned or vacated, (3) subject the Land and/or the Building,
respectively, or any part thereof, to any lien or encumbrance (unless Tenant
agrees, in writing, to pay, discharge or bond such lien or encumbrance), or (4)
result in the termination of any Superior Lease or foreclosure of any Mortgage,
respectively, then in that event Tenant shall be entitled to such reasonable
additional period of time to effectuate the cure or remedy of such default or
failure, provided, however, that Tenant or an assignor of Tenant or the
Guarantor shall (x) duly advise Landlord of its intention to take all necessary
steps to remedy or cure such default or failure and commence the prosecution of
such cure or remedy, all within such thirty (30) day period, and (y) thereafter
diligently prosecute to completion all steps necessary to remedy or cure the
default or failure (including such time as any assignor of Tenant or the
Guarantor may reasonably require to cure such default on behalf of assignee or
Tenant, respectively), which default or failure, provided the same is
non-monetary in nature or is not capable of being cured by the payment of money,
respectively, shall be further subject to Unavoidable Delays, and (z) complete
such remedy or cure within a reasonable time after the date of said notice from
Landlord; or
(F) if that certain "Guaranty of Lease" (as defined in Article
41) shall not be in full force and effect at any time during the Term of this
Lease, or if the "Guarantor" (as such term is also defined in Article 41) shall
default in the due observance or performance of any of the terms of the
Guaranty, or if Guarantor shall repudiate the Guaranty, or if the Guaranty shall
terminate, or be terminated for any reason (unless Landlord shall have expressly
consented, in writing, to such termination or unless termination occurs
concurrently with an assignment of this
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Lease by Tenant or any Permitted Tenant to the named Guarantor of the Guaranty
of Lease), or if any event described in Section 16.1(D) above shall occur with
respect to the Guarantor (as opposed to the Tenant) which (i) results in an
entry of an order for relief, adjudication of bankruptcy or insolvency or an
appointment or the issuance or entry of any other order having a similar effect
or (ii) remains undismissed for a period of ninety (90) days (unless a
substitute Guarantor acceptable to Landlord shall execute and deliver to
Landlord a guaranty in the form of the Guaranty of Lease).
Section 16.2 (A) If any Event of Default shall occur and Landlord, at
any time thereafter, at its option, gives written notice to Tenant stating that
this Lease and the Term shall expire and terminate on the date Landlord shall
give Tenant such notice (the "Termination Notice"), then this Lease and the Term
and all rights of Tenant under this Lease shall expire and terminate as if the
date on which such Termination Notice is given to Tenant by Landlord were the
Fixed Expiration Date and Tenant immediately shall quit and surrender the
Premises, but Tenant shall nonetheless be liable for all of its obligations
hereunder, as provided for in Article 17 hereof. Notwithstanding the foregoing,
if the Event of Default in question results from Tenant's failure to pay Rent,
then the Termination Notice shall be given at least ten (10) days prior to the
termination date set forth in such Termination Notice and Tenant shall have the
right to cure such failure to pay Rent within the ten (10) day period commencing
upon Tenant's receipt of such Termination Notice. If within such ten (10) day
period, TIME BEING OF THE ESSENCE, Tenant pays to Landlord (i) all Rent then due
and owing, (ii) all interest accrued thereon at the Interest Rate, and (iii) an
agreed upon late payment fee equal to (1) Fifteen Thousand and no/100 Dollars
($15,000.00) in the case of a failure to pay Fixed Rent or (2) five (5%) percent
of the amount of Rent then due and owing in the case of a failure to pay any
item of Rent other than Fixed Rent, respectively, then, in that event, and only
in that event, such Termination Notice shall be deemed null and void and this
Lease shall continue in full force and effect as if such Event of Default had
not occurred.
(B) Anything contained herein to the contrary notwithstanding,
if such termination shall be stayed by order of any court having jurisdiction
over any proceeding described in Section 16.1(D) hereof, or by federal or state
statute, then, following the expiration of any such stay, or if the trustee
appointed in any such proceeding, Tenant or Tenant as debtor- in-possession
shall fail to assume Tenant's obligations under this Lease within the period
prescribed therefor by law or within one hundred twenty (120) days after entry
of the order for relief or as may be allowed by the court, or if said trustee,
Tenant or Tenant as debtor-in possession shall fail to provide adequate
protection of landlord's right, title and interest in and to the Premises or
adequate assurance of the complete and continuous future performance of Tenant's
obligations under this Lease as provided in Section 12.4, Landlord, to the
extent permitted by law or by leave of the court having jurisdiction over such
proceeding, shall have the right, at its election, to terminate this Lease on
fifteen (15) days' notice to Tenant, Tenant as debtor-in- possession or said
trustee and upon the expiration of said fifteen (15) day period this Lease shall
cease and expire as aforesaid and Tenant, Tenant as debtor-in-possession or said
trustee shall immediately quit and surrender the Premises as aforesaid.
(C) If any Bankruptcy Event shall occur, or this Lease shall
be terminated as provided in Section 16.2(A) hereof, Landlord, without notice,
may reenter and repossess the Premises using such force for that purpose as may
be necessary without being liable to indictment, prosecution or damages therefor
and may dispossess Tenant by summary proceedings or otherwise.
Section 16.3 If at any time, (i) Tenant shall comprise two (2) or more
persons, or (ii) Tenant's interest in this Lease shall have been assigned, the
word "Tenant," as used in Section 16.1(C) and (D), shall be deemed to mean any
one or more of the persons primarily liable for Tenant's obligations under this
Lease. Any monies received by Landlord from or on behalf of Tenant during the
pendency of any Bankruptcy Event proceeding shall be deemed paid as compensation
for the use and occupation of the Premises and the acceptance of any such
compensation by Landlord shall not be deemed an acceptance of Rent or a waiver
on the part of Landlord of any rights under Section 16.2.
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ARTICLE 17
REMEDIES AND DAMAGES
Section 17.1 (A) If there shall occur any Event of Default, and this
Lease and the Term shall expire and come to an end as provided in Article 16
hereof:
(1) Landlord may, without notice, re-enter the
Premises either by force or otherwise and dispossess Tenant and/or the
legal representative of Tenant or any other occupant of the Premises,
respectively, by summary proceedings or otherwise, and may repossess
the Premises and remove therefrom the contents and effects of Tenant
and/or the legal representative of Tenant or any other occupant, and
hold the Premises as if this Lease had not been made.
(2) Landlord may, at its option, relet the whole or
any portion or portions of the Premises, at any time or from time to
time, either in the name of Landlord or otherwise, to such tenant or
tenants, for such term or terms ending before, on or after the Fixed
Expiration Date, at such rental or rentals and upon such other
conditions, which may include concessions and free rent periods, as
Landlord in its sole discretion, exercised in good faith, may
determine, and in no event shall Tenant be entitled to receive any
excess of net rentals collected over the rent and additional rent
payable by Tenant hereunder, and Landlord, at Landlord's option, may
make such repairs, replacements, alterations, additions, improvements,
decorations and other physical changes in and to the Premises as
Landlord, in its sole discretion, considers advisable or necessary in
connection with any such reletting or proposed reletting, without
relieving Tenant of any liability under this Lease or otherwise
affecting any such liability.
(3) Landlord shall use commercially reasonable
efforts to mitigate its damages in the instance of the occurrence of an
Event of Default hereunder and the expiration and end of the Lease Term
as provided above, (but in no event earlier than the date Landlord
first regains possession of the Premises) and to relet the Premises in
such event; Landlord has informed Tenant that as a matter of Landlord's
current business practice, which Landlord shall have the right to
alter, amend or otherwise modify, from time to time during the Lease
Term in Landlord's sole good faith business judgment, Landlord is
likely to relet the Premises as a result of the foregoing Event of
Default circumstances, unless at the time of any such Event of Default,
Landlord deems, in Landlord's sole good faith business judgment, that
reletting of the Premises is not then commercially reasonable or is
contrary to Landlord's sound business practices; it being further
agreed and understood that Landlord's current business practice, as
described above, (a) is to list the Premises for lease within sixty
(60) days after the occurrence of an Event of Default hereunder and the
expiration and end of the Lease Term as provided above (but in event
earlier than the date Landlord first regains possession of the
Premises), and (b) does not include any requirement or preference to
relet the Premises prior to letting other vacant space in the Building
or Other Buildings owned by Landlord or a Landlord Related Entity or at
a rental rate below either (i) the then current market rental rate at
which Landlord is then renting other available comparable space in the
Building, or Other Buildings owned by Landlord or a Landlord Related
Entity, or (ii) the then current market rental rate at which owners of
other comparable space in comparable buildings in the Comparable Market
are then leasing such space, whichever is less.
(B) Tenant hereby waives the service of any notice of
intention to re-enter or to institute legal proceedings to that end which may
otherwise be required to be given under any present or future law. Tenant, on
its own behalf and on behalf of all persons claiming through or under Tenant,
including all creditors, does further hereby waive any and all rights which
Tenant and all such persons might otherwise have under any present or future law
to redeem the Premises, or to re-enter or repossess the Premises, or to restore
the operation of this Lease, after (a) Tenant shall have been dispossessed by a
judgment or by warrant of any court or judge, or (b)
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any re-entry by Landlord, or (c) any expiration or termination of this Lease and
the Term, whether such dispossess, re-entry, expiration or termination shall be
by operation of law or pursuant to the provisions of this Lease.
(C) The words "re-enter", "re-entry" and "re-entered" as used
in this Lease shall not be deemed to be restricted to their technical legal
meanings. In the event of a breach or threatened breach by Tenant, or any
persons claiming through or under Tenant, of any term, covenant or condition of
this Lease, Landlord shall have the right to enjoin such breach and the right to
invoke any other remedy allowed by law or in equity as if re-entry, summary
proceedings and other special remedies were not provided in this Lease for such
breach. The right to invoke the remedies hereinbefore set forth are cumulative
and shall not preclude Landlord from invoking any other remedy allowed at law or
in equity.
Section 17.2 (A) If this Lease and the Term shall expire and come to an
end as provided in Article 16 hereof, or by or under any summary proceeding or
any other action or proceeding by Landlord against Tenant or any person claiming
by, through or under Tenant, or if Landlord shall re-enter the Premises as
provided in Section 17.1, or by or under any summary proceeding or any other
action or proceeding, respectively, then, in any of said events:
(1) Tenant shall pay to Landlord all Fixed Rent,
Additional Rent and other charges payable under this Lease by Tenant to
Landlord to the date upon which this Lease and the term shall have
expired or has been terminated and come to an end;
(2) Landlord shall be entitled to retain all monies,
if any, paid by Tenant to Landlord, whether as advanced Rent, security
deposit or otherwise, but such monies shall be credited by Landlord
against any damages payable by Tenant to Landlord;
(3) Tenant also shall be liable for and shall pay to
Landlord as liquidated damages, any deficiency (the "Deficiency")
between the Rent reserved in this Lease for the period which otherwise
would have constituted the unexpired portion of the term including any
Renewal Term exercised by Tenant prior to the termination of this Lease
or re-entry by Landlord (conclusively presuming the Additional Rent to
be the same as was payable for the year immediately preceding such
termination or re-entry) and the net amount, if any, of rents collected
under any reletting of all or part of the Premises for any part of such
period, after first deducting therefrom the rents actually collected
under any such reletting, all of Landlord's reasonable, out-of-pocket
expenses in connection with the termination of this Lease and
Landlord's re-entry upon the Premises and in connection with such
reletting including, without limitation, all repossession costs,
brokerage commissions, legal expenses, reasonable attorneys' fees,
court costs and disbursements, alteration costs and other expenses
incurred in the preparation of the Premises for such reletting, and the
amount of rent concessions, construction allowance and the like granted
in connection with such reletting (collectively, the "Default
Expenses"); it being agreed and understood by Tenant that any such
Deficiency shall be paid in monthly installments by Tenant on the days
specified in this Lease for payment of installments of Fixed Rent, and
that Landlord shall be entitled to recover from Tenant each monthly
Deficiency as the same shall arise, and no suit to collect the amount
of the Deficiency for any month shall prejudice Landlord's right to
collect the Deficiency for any subsequent month by a similar
proceeding; and
(4) whether or not Landlord shall have collected any
monthly Deficiencies as aforesaid, Landlord shall be entitled to
recover from Tenant, and Tenant shall pay to Landlord, on demand, in
lieu of any further Deficiencies (other than the Default Expenses), as
and for liquidated and agreed final damages, and not as penalty, a sum
equal to the amount by which the sum of the Rent reserved in this Lease
for the period which otherwise would have constituted the unexpired
portion of the Term, including any Renewal Term exercised by Tenant
prior to the termination of this Lease or re-entry by Landlord
(conclusively presuming the Additional Rent to be the same as was
payable for the year immediately preceding such termination or
re-entry) exceeds the then
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fair and reasonable rental value of the Premises for the same period,
both discounted to the then present value of such sum at the rate equal
to the rate of U.S. Treasury obligations having a maturity closest to
such unexpired portion of the Term, and less the aggregate amount of
Deficiencies theretofore collected by Landlord pursuant to the
provisions of subdivision (3) above, for the same period; it being
agreed and understood by Tenant that if before presentation of proof of
such liquidated damages to any court, commission or tribunal, the
Premises, or any part thereof, shall have been relet in a bona- fide
arm's length transaction by Landlord for the period which otherwise
would have constituted the unexpired portion of the Term, or any part
thereof, the amount of rent reserved upon such reletting shall be
conclusively deemed, prima facie, to be fair and reasonable rental
value for the part of the whole of the Premises so relet during the
term of the reletting.
(B) In the event of a breach or threatened breach by Tenant of
any of the covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity as if
re-entry, summary proceedings and other remedies were not herein provided for.
Mention in this Lease of any particular remedy, shall not preclude Landlord from
any other remedy, at law, in equity or otherwise.
(C) Tenant shall in no event be entitled to any rents
collected or payable under any reletting, whether or not such rents shall exceed
the Fixed Rent reserved in this Lease. Nothing contained in Article 16 or this
Article 17 shall be deemed to limit or preclude the recovery by Landlord from
Tenant of the maximum amount allowed to be obtained as damages by any statute or
rule of law, or of any sums or damages to which Landlord may be entitled in
addition to the damages set forth in this Section 17.2.
Section 17.3 If an Event of Default shall occur hereunder, then, in
additional to and not in limitation of Landlord's other rights and remedies
hereunder, Landlord may immediately or at any time thereafter, and without
notice to Tenant, perform the obligation(s) of Tenant which is the subject of
such Event of Default. If Landlord, in connection therewith makes any
expenditures or incurs any obligations for the payment of money, including but
not limited to attorneys' fees and court costs, in instituting, prosecuting or
defending any actions or proceeding, then Tenant shall reimburse Landlord for
such reasonable, out-of-pocket sums so paid or obligations incurred with
interest at the Interest Rate and costs. The foregoing expenses incurred by
reason of Tenant's Event of Default shall be deemed to be additional rent
hereunder and shall be paid by Tenant to Landlord within ten (10) Business Days
of rendition of any bill or statement to Tenant therefor with interest thereon
at the Interest Rate from the date such expenses were incurred. If the Term
shall have been terminated or if Landlord shall have re-entered the Premises at
the time of making of such expenditures or incurring of such obligations, such
sums shall be deemed Default Expenses and shall be recoverable by Landlord as
damages.
ARTICLE 18
INTENTIONALLY OMITTED
ARTICLE 19
BUILDING ALTERATIONS AND MANAGEMENT; CHANGES IN BUILDING
FACILITIES, SYSTEMS AND NAME; BUILDING DIRECTORY
Section 19.1 (A) Landlord shall have the right, at any time during the
Term, without the same constituting an eviction and without incurring liability
to Tenant therefore, to make such changes in or to the Building, the Structural
Elements and/or the Building Systems, and the fixtures and equipment thereof,
respectively, as well as in or to the street entrances, halls, passages,
elevators, escalators and stairways thereof, as Landlord may deem necessary or
desirable, and/or change the arrangement and/or location of public entrances,
passageways, doors, doorways, corridors, elevators, stairs, toilets or other
public parts of the Building, provided,
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however, no such exercise of these rights by Landlord shall unreasonably impair
access, ingress, egress to and from the Building and the Premises, or otherwise
unreasonably or materially interfere with Tenant's ability to use the Premises
for the Permitted Use.
(B) Except as expressly provided in Section 25.2 of this
Lease, there shall be no allowance to Tenant for diminution of rental value and
no liability on the part of Landlord for inconvenience, annoyance or injury to
business arising from Landlord or other tenants making any repairs in the
Building or any alterations, additions and improvements.
(C) Tenant shall not have any claim against Landlord by reason
of Landlord's imposition of such controls on the manner of access to the
Building by Tenant's social or business visitors as the Landlord may deem
necessary for the security of the Building and its tenants and occupants if
reasonably consistent with other first class office buildings with retail space
in the Comparable Market and if applicable in a non-discriminatory manner to all
tenants in the Building.
Section 19.2 (A) For so long as (x) this Lease is in full force and
effect and (y) subject to Section 19.2(E) below, the Premises hereunder shall
consist of and "Tenant is then in occupancy" (as such term is defined in Section
1.3(C) of this Lease) (pursuant to Occupancy Evidence furnished by Tenant to
Landlord) of at least four (4) full floors or 168,000 square feet in the
Building above the ground floor, subject to Section 19.2(E), Landlord hereby
grants to Tenant, and Tenant shall have the signage and identification rights
set forth below in this Section 19.2(A) (collectively the "Signage Rights"):
(1) The Building shall exclusively be known as "The
PaineWebber Building" and such name may, at Tenant's request, be
affixed to the Building's facade facing Washington Boulevard at a
location mutually agreeable to Landlord and Tenant, subject, however,
to Tenant's compliance with Legal Requirements including, but not
limited to, the obtaining of any necessary approvals from the Jersey
City Planning Board and Landlord's approval as to compliance with
Landlord's aesthetic standards and guidelines for the Building and the
design, type of material, color, location and manner of affixation to
the Building's facade, which size, standards, guidelines and
requirements shall be reasonable and which shall not be unreasonably
withheld, conditioned or delayed (collectively the "Landlord's Signage
Guidelines");
(2) Subject to Landlord's Signage Guidelines, the
name and/or logo of "PAINEWEBBER" shall appear above all entrances to
the Building and, at Tenant's option, on the Building marquis, which
Landlord shall construct; and
(3) Tenant may affix two (2) lighted signs to the
facade of the Building, one to be placed at the top of the Building on
the northern corner of the western side of the Building and the other
to be placed on the eastern side of the Building, or at such other
location of Tenant's choice, subject, however, to Landlord's reasonable
approval as to such alternate location, which lighted signs may, at
Tenant's option, be a ticker display for market data information, and
shall be subject to and in compliance with all relevant Legal
Requirements including, but not limited to, the obtaining of any
necessary approvals from the Jersey City Planning Board and Landlord's
Signage Guidelines.
(B) At such time as the requirements described in Section
19.2(A)(x) and (y) above are not being met, Tenant's Signage Rights shall be
terminated and Landlord may adopt any name for the Building, and may change the
name, address, number or designation of the Building, and may name the Building
after any other tenant in the Building which is leasing four (4) or more full
floors or at least 168,000 rentable square feet in the Building; provided,
however, that Landlord shall not name or designate the Building for, or permit
any exterior signage on the Building, for a stock brokerage or investment
banking firm, so long as Tenant is then in occupancy (pursuant to Occupancy
Evidence to be furnished by Tenant to Landlord) of at least two (2) full floors
or 84,000 rentable square feet in the Building above the ground floor.
Notwithstanding the foregoing, after the Signage Rights are no longer in effect
and Tenant is then
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in occupancy of at least two (2) full floors or 84,000 rentable square feet in
the Building (pursuant to Occupancy Evidence furnished by Tenant to Landlord),
if Landlord desires to name the Building after a stock brokerage or investment
banking firm and Tenant objects thereto, Landlord has the right to terminate
this Lease, in which event Landlord shall pay to Tenant upon such termination
the unamortized costs of the tenant improvements paid solely by Tenant and then
existing in the space being surrendered in connection with such termination,
such unamortized costs being the unamortized costs for Federal income tax
purposes. If Landlord changes the name of the Building, Landlord shall maintain
a numbered Washington Boulevard street address for the Building, which currently
is 499 Washington Boulevard.
(C) For purposes of this Section 19.2(A), the term "Tenant"
shall mean (1) the named Tenant herein, or (2) a Permitted Tenant of the named
Tenant herein and, as to clause (2), which is (a) is a stock brokerage or
investment banking firm except for those entities listed on Schedule 5 annexed
hereto and made a part hereof, or (b) whose name is approved by Landlord, which
approval shall not be unreasonably withheld, it being agreed and understood that
Landlord shall not be deemed unreasonable in disapproving the transfer of the
Signage Rights to a person or entity who is a competitor of Landlord or Lefrak
Organization, Inc. (i.e., another real estate owner, developer, operator,
management company or REIT) or where the name of such person or entity would be
inconsistent with the status of the Building as a first class office building
with retail space in the Comparable Market. In the event the Tenant named herein
or a Permitted Tenant shall change its name or designation then such Signage
Rights shall apply to such changed name or designation, subject to the
provisions of clauses (a) and (b) of (2) herein.
(D) In connection with Tenant's exercise of any of its Signage
Rights set forth above in Section 19.2(A), Tenant hereby agrees that any sign
installed or affixed as part of such Signage Rights shall be deemed Tenant's
Property for all purposes of this Lease, and further that Tenant shall, at
Tenant's sole cost and expense, (1) comply with all applicable Legal
Requirements and receive all necessary governmental approvals required for the
erection and maintenance of any sign; (2) keep in good order and repair,
maintain and replace, as necessary during the Term, any such sign; and (3) no
later than the Expiration Date, remove any such sign and repair all injury done
by or in connection with the installation or removal of such sign.
(E) Notwithstanding anything to the contrary contained in this
Section 19.2, if U.S. Trust Company of New Jersey, its successors and assigns
("US Trust") elects to exercise its option pursuant to its Lease with Landlord,
dated as of December 2, 1998 (the "US Trust Lease") to lease one (1) additional
floor in the Building and Tenant is required to surrender one (1) floor of the
Premises so that Landlord can fulfill its obligation to US Trust under the US
Trust Lease, the requirements of subdivision (y) of Section 19.2(A) shall be met
if the Premises shall consist of, and Tenant is then in occupancy of, at least
three (3) full floors or 126,000 rentable square feet in the Building above the
ground floor (pursuant to Occupancy Evidence furnished by Tenant to Landlord).
(F) Throughout the Term of the Lease, even when the Signage
Rights shall not be in effect, Tenant shall, provided that Tenant shall then be
in occupancy of one full floor or 42,000 rentable square feet of the Building,
have the right to install a tasteful and dignified sign identifying Tenant in
the lobby of the Building (the "Tenant's Lobby Sign") which Tenant's Lobby Sign
(a) shall be no larger than two feet (2') by two feet (2') in size, (b) shall be
placed at Tenant's elevator bank, (c) may contain the Tenant's logo, and (d)
shall be otherwise subject to Landlord's Signage Guidelines.
(G) Until the Signage Rights are terminated, Landlord shall
not permit any other signage on the exterior of the Building (other than the
Building's cornerstone, the Plaza Sign as described in Section 19.3 below, or
retail signage as permitted under Section 19.5 below.)
(H) So long as the Signage Rights are in effect, in no event
shall the lobby signage rights of any other office tenant of the Building be
more prominent than Tenant's Lobby Sign and such other signage shall be placed
at the elevator bank for such other office tenant or occupant in the same manner
as Tenant's Lobby Sign. After the Signage Rights are no longer in
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effect, no other office tenant of the Building shall have a more prominent lobby
sign than Tenant's Lobby Sign unless such other tenant is leasing more rentable
square feet than Tenant is then leasing.
(I) Landlord represents that the above provisions do not
violate the terms of any other existing lease in the Building.
Section 19.3 (A) If Landlord erects a monument sign on the plaza area
in front of the Building identifying the Building (including its then name) and
the tenants then occupying premises in the Building (the "Plaza Sign"), and
Tenant shall elect to have a sign thereon, then Landlord shall, at Landlord's
cost, include the name of Tenant on such Plaza Sign in the following order of
listing or naming: Landlord agrees that the listings on the Plaza Sign will be
in horizontal order or broken up into horizontal blocks (in which event if there
are more than two (2) blocks per listing line, the Tenant's name will appear in
the third (3rd) block from the left, and if there are only two (2) blocks per
listing line, the listing for the Tenant shall occupy all of the blocks located
on the second (2nd) listing line). It is agreed and understood by Tenant that
any right to be listed on the Plaza Sign shall be non-exclusive. Nothing herein
contained shall prohibit tenants with premises containing equal or greater space
from having a listing on the Plaza Sign equal to or proportionately greater than
Tenant's listing on the Plaza Sign. Nothing contained herein shall permit Tenant
to have a listing or presence on the Plaza Sign which, in terms of the size of
the lettering of Tenant's name, is greater in size than the lettering of "CIGNA"
or "CONNECTICUT GENERAL LIFE INSURANCE COMPANY" (collectively, "CIGNA"), or US
TRUST for so long as CIGNA's lease for premises and the US Trust Lease in the
Building, respectively, shall be in existence. At such time as either of such
lease or both such leases shall cease to be in effect, at Tenant's option Tenant
may cause Landlord to move Tenant's Plaza Sign listing to that location formerly
used by the tenant or tenant under such lease or leases, provided, however, that
Landlord has not granted such right to another tenant in the Building having
more rentable square feet in the Building than Tenant.
(B) Tenant and a Permitted Tenant shall have the right to
install, at Tenant's sole cost and expense, tasteful and dignified signage
identifying Tenant, and any subtenant of Tenant and a Permitted Tenant, as
Tenant or such Permitted Tenant shall deem necessary or desirable, on the floors
comprising the Premises, provided that each such floor is leased to and occupied
by Tenant or a Permitted Tenant.
Section 19.4 Landlord, at its expense and at Tenant's written request,
shall maintain listings on the Building's electronic directory of the names of
Tenant and any others in lawful occupancy of the Premises, and the names of
their respective officers and employees, provided that the names so listed shall
not take up more than Tenant's Operating Share of the space on the Building's
electronic directory, which share is one thousand (1,000) listing lines. Such
quantity of listing lines shall initially be provided to Tenant at no additional
expense, but any excess listings, if permitted by Landlord, or any subsequent
changes of listings, respectively, as the case may be, shall be at Tenant's
expense, at Landlord's then actual cost therefor. All listings requested shall
be generally consistent with then Building standard practice.
Section 19.5 (A) Landlord hereby agrees that any signage installed on
the ground floor of the Building for retail tenants ("Retail Signage") shall be
set within the Building's sign panels in close proximity of the retail
storefront and shall be consistent with the class and character of the Building
as a first class office Building with retail premises or other first class
buildings with retail premises located in the Comparable Market; it being agreed
and understood, however, by Tenant that a retail tenant may also install
dignified and tasteful window signage which may be illuminated. Landlord agrees
that Tenant may install signage in accordance with the foregoing as to Ground
Floor Premises.
(B) After the Signage Rights are terminated, if Tenant is
using the Ground Floor Premises for a financial services operation and installs
Retail Signage in connection therewith or Tenant uses the Ground Floor Premises
for any other purpose but installs Retail Signage which has in such signage the
name of a financial services institution, and Landlord desires to enter into
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a lease of office space in the Building with a financial services institution
and such financial services institution will not lease such space unless
Tenant's Retail Signage is removed from the Building, then Landlord has the
right to cause Tenant to remove its Retail Signage. If Tenant objects to
removing such Retail Signage, the Landlord shall have the right to cancel this
Lease with respect to the Ground Floor Premises upon forty-five (45) days notice
to Tenant, in which event Landlord shall pay Tenant upon such termination the
unamortized costs of the tenant improvements paid solely by Tenant and then
existing in the Ground Floor Premises being surrendered, such unamortized costs
being the unamortized costs for Federal income tax purposes and the Fixed Rent,
Tenant's Tax Share and Tenant's Ground Floor Operating Share shall thereupon be
adjusted accordingly.
ARTICLE 20
NO REPRESENTATIONS BY LANDLORD
Neither Landlord nor Landlord's agents or employees have made
any representations or promises with respect to the physical condition of the
Property and/or the Premises, the rents, leases, expenses of operation, or any
other matter or thing affecting or related to the Premises except as may be
expressly set forth in this Lease, and no rights, easements or licenses are
acquired by Tenant hereunder by implication or otherwise, except as may be
expressly set forth in the provisions of this Lease.
ARTICLE 21
QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that upon Tenant's timely
payment of the Fixed Rent and Additional Rent and timely observing and
performing all the terms, covenants and conditions of this Lease on Tenant's
part to be observed and performed, Tenant may peaceably and quietly enjoy the
Premises without interference from Landlord or anyone claiming under or through
Landlord, subject to all Superior Leases and Mortgages affecting the Property as
set forth in Article 8 above.
ARTICLE 22
WAIVERS
Section 22.1 The failure of Landlord to seek redress for violation of,
or to insist upon the strict performance of any term, covenant or condition of
this Lease including, without limitation, any of the "Rules and Regulations" (as
defined in Article 29 of this Lease), shall not be construed as a waiver of any
other term, covenant, condition or rule, or as a waiver of any future right to
enforce or insist upon performance of any of the same. The receipt by Landlord
of Rent with knowledge of the breach of any covenant of this Lease shall not be
deemed to be a waiver of such breach, and no provision of this Lease shall be
deemed to have been waived by Landlord unless such waiver shall be in writing
and signed by an authorized official of Landlord. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly Fixed Rent or any
payment of Additional Rent shall be deemed to be other than on account of the
earliest stipulated Rent, nor shall any endorsement or statement on any check
(e.g., "payment under protest") or any letter accompanying any check or payment
of Rent be deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such
Rent or pursue any other remedy provided in this Lease.
Section 22.2 No act or thing done by Landlord or Landlord's agents
during the Term shall be deemed an acceptance of a surrender of the Premises and
no agreement to accept such surrender shall be valid unless such acceptance is
in writing and signed by Landlord. No employee of Landlord or Landlord's agent
shall have any power to accept the keys for the Premises prior to the expiration
of this Lease, and the delivery of keys to any such agent or
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employee shall not operate as a expiration of this Lease or a surrender of the
Premises.
Section 22.3 The failure of Tenant to seek redress for Landlord's
violation of, or to insist upon the strict performance by Landlord of any term,
covenant or condition of this Lease shall not be construed as a waiver of any
other term, covenant or condition of this Lease, or as a waiver of any future
right to enforce or insist upon Landlord's performance of any of the same. No
payment by Tenant of Rent hereunder shall be deemed a waiver of any
then-existing breach or default by Landlord under this Lease even if Tenant had
knowledge of such breach or default at the time of such payment by Tenant of
Rent hereunder.
ARTICLE 23
WAIVER OF TRIAL BY JURY
Section 23.1 It is mutually agreed by and between Landlord and Tenant
that the respective parties hereto shall and do hereby waive trial by jury in
any action, proceeding or counterclaim brought by either of the parties hereto
against the other (except for personal injury or property damage) on any matters
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use of or occupancy of the
Premises, and any emergency statutory or any other statutory remedy.
Section 23.2 It is further mutually agreed that in the event Landlord
commences any summary proceeding for possession of the Premises, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding, except to the extent Tenant's failure to interpose any such
counterclaim would, pursuant to applicable court rules, preclude Tenant from
otherwise filing such counterclaim.
ARTICLE 24
SERVICES
Section 24.1 (A) For purposes of this Lease, "Business Hours" shall
mean normal Building operation hours of 8:00 A.M. to 6:00 P.M. on Business Days,
and "Business Days" shall mean Monday through Friday, except for those days
designated as holidays by the New York Stock Exchange or its comparable
successor exchange ("NYSE Holidays"), and "Saturday Hours" shall mean 8:00 A.M.
to 1:00 P.M. on Saturdays, except for those Saturdays which are NYSE Holidays.
Landlord and Tenant acknowledge that such NYSE Holidays are determined on an
annual basis and are subject to change, but generally include: New Year's Day,
Washington's Birthday, Good Friday, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day.
(B) For so long as this Lease shall remain in effect, Landlord
shall provide at no additional cost to Tenant, except as otherwise expressly
provided herein or as included in Operating Costs:
(1) twenty-four (24) hour a day, seven (7) days a
week access to the Building and the Premises, subject, however, to
Landlord's reasonable security requirements, consistent with other
comparable first class office buildings with retail space in the
Comparable Market, which shall include a computer controlled card
access system to the Building's elevator lobby, which card access
system may be modified, altered or changed by Landlord, as required
during the Lease term in keeping with such comparable systems then
being utilized in other comparable first class office buildings with
retail space in the Comparable Market, upon reasonable advance notice
to Tenant; it is agreed, however, that it shall be Tenant's obligation,
at its sole option and expense, to make such modifications to Tenant's
card access system into and within the Premises as may be possible so
as to make same compatible with Landlord's card access system to the
Building's elevator lobby, and Landlord agrees to cooperate with
Tenant's effort to so effect compatibility between such systems,
provided that Landlord shall not be required
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to incur any additional costs in that regard; it is further agreed
that, in the event the elevator bank serving the Premises also serves
the premises of other tenants or occupants of the Building, it shall be
Tenant's sole obligation, at its sole option and expense, to secure
access to each floor of the Premises via card access system or other
measures (subject to compliance with the terms of Article 4 hereof).
(2) a security guard in the Building and other
commercially reasonable security procedures consistent with other
comparable first class office buildings with retail space in the
Comparable Market twenty-four (24) hours a day, seven (7) days a week
consistent with other comparable first class office buildings with
retail space in the Comparable Market;
(3) a concierge service in the Building lobby during
Business Hours on all Business Days, and on Saturdays during Saturday
Hours; it being agreed and understood that if this Lease shall then be
in full force and effect, Tenant shall be a Permitted Tenant and the
Office Premises shall consist of at least three (3) full floors of the
Building or at least 126,000 rentable square feet in the Building, in
either event as to which Tenant and/or Permitted Tenant is then in
occupancy (pursuant to Occupancy Evidence furnished by Tenant to
Landlord), Tenant shall, at its option, have the right to have its own
representative at the concierge desk, in a manner as shall be
reasonably determined by Landlord, so as not to interfere with
Landlord's concierge service; in the event Tenant exercises such right,
Tenant's representative stationed at such concierge desk shall have the
right to restrict access to the elevator bank(s) serving the Office
Premises by means of a check-in/sign-in procedure that is consistent
with similar procedures in other comparable first class office
buildings in the Comparable Market, and, in furtherance of such
procedure, Tenant shall have the right to place appropriate
instructional signage at such concierge desk which shall, as to design,
color, size, location and manner of installation, be subject to
Landlord's approval, which approval shall not be unreasonably withheld
and shall take into account, among other things, Landlord's aesthetic
standards for the lobby;
(4) it is agreed and understood that if Tenant uses
and occupies the Premises on non-Business Days or after Business Hours
on Business Days and requests that Landlord provide Building services
to Tenant that are otherwise not required to be provided by Landlord
hereunder during such periods of time, including making Building
personnel available to Tenant on non-Business Days or after Business
Hours on Business Days, respectively, as the case may be, Tenant
agrees, at its own cost and expense, to reimburse Landlord, as
Additional Rent in accordance with Section 2.1(C), for all actual costs
and expenses incurred by or on behalf of Landlord in providing such
Building services to Tenant and/or in having such Building personnel
available to Tenant plus an administrative fee equal to fifteen percent
(15%) of the total costs and expenses so incurred by or on behalf of
Landlord; provided, however, that where more than one (1) tenant in the
Building shall require the same or substantially the same such Building
services during such periods of time, the fees, costs and expenses in
providing such Building services shall be equitably apportioned between
or among such tenants except as otherwise expressly provided in this
Article 24;
(5) (a) passenger elevator service to the Office
Premises, to the extent shown on the Building Plans and operated in a
manner which is consistent with other comparable first class office
buildings in the Comparable Market, on Business Days between the hours
of 8:00 A.M. and 7:00 P.M. and have at least three (3) elevators
serving the Office Premises, subject to call, at all other times;
Landlord shall program the passenger elevators serving the Office
Premises not to open on the floors of the Building (above the Ground
Floor Premises) served by the so-called "lower floor elevator bank",
except that at such time, if ever, that a tenant or occupant (which may
be Tenant) leasing or occupying space on a floor of the Building served
by the so-called "lower floor elevator bank" also leases or occupies
space on a floor of the Building located above the floors of the
Building then being served by the so-called "lower floor elevator bank"
(a "Dual
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Elevator Bank Tenant"), Landlord thereafter shall be permitted to
program the so-called "upper floor elevator bank" elevators to open on
the 8th floor(i.e., the so-called "cross over floor") (it being agreed
that Tenant shall be solely responsible for implementing any measures
its chooses in order to secure access to each floor of the Premises
beyond the point of the elevator doors on each floor, as more fully set
forth in Section 24.1(B) above);
(b) freight elevator service to the entire Building
on a "first come, first served" basis on Business Days during Business
Hours (less one (1) hour for lunch), and on a reservation, "first come,
first served" basis after Business Hours on Business Days and at any
time on non-Business Days (one (1) such freight elevator shall be
reserved for the exclusive use of Tenant during the hours so reserved
by Tenant, subject to availability on a reservation, "first come, first
served" basis and provided Tenant shall request such exclusive usage by
not later than 4:00 P.M. on the immediately preceding Business Day and
not later than the seventh (7th) day prior to Tenant's initial
moving-in of its furniture, installations and equipment to the Office
Premises); it being agreed and understood that if Tenant shall use the
freight elevators serving the Office Premises after Business Hours on
Business Days or on any non-Business Days, Tenant shall pay Landlord,
as Additional Rent for such use during the twelve (12) month period
commencing with the Rent Commencement Date at the agreed upon rate set
forth on Schedule 6 annexed hereto and made a part hereof, and
thereafter at such rate as increased by the actual increase in costs
and expenses incurred by Landlord therefor (Landlord hereby agreeing to
notify Tenant from time to time of such increased rate); it being
further agreed and understood, however, that Landlord shall make
available to Tenant the use of the freight elevator or hoist without
payment by Tenant of any fee, cost or expense (other than the labor
charge for a porter(s), the agreed upon rate for which is set forth on
Schedule 6 annexed hereto and made a part hereof), during Tenant's
performance of its Initial Alterations and its initial moving-in of its
furniture, installations and equipment to the Premises even if such use
occurs on non-Business Days or after Business Hours on Business Days;
and
(c) use of the loading dock on a "first come, first
served" basis on Business Days during Business Hours, upon reasonable
prior notice to Landlord (which may be given orally to the Building
management office); it being further agreed and understood that
Landlord shall also make available to Tenant the use of the loading
dock without payment by Tenant of any fee, cost or expense, during
Tenant's performance of its Initial Alterations and its initial
moving-in of its furniture, installations and equipment to the Premises
even if such use occurs on non-Business Days or after Business Hours on
Business Days (it being understood and agreed that whenever Tenant
shall have the use of the freight elevators serving the Premises on a
reserved basis, it shall also have the right to use the loading dock on
a reserved basis);
(6) heating to the Building during Business Hours of Business
Days and during Saturday Hours as described in Section 24.2 below and
ventilation and air conditioning to the Premises during Business Hours
of Business Days and during Saturday Hours as described in Section 24.3
below;
(7) water for ordinary drinking, cleaning and lavatory
purposes (including up to four (4) so-called "coffee station" or "Dwyer
unit" sinks per floor of the Office Premises, and for any cafeteria,
dining and cooking facilities permitted in the Ground Floor Premises by
this Lease, but if Tenant uses or consumes water for any such
cafeteria, dining and/or cooking facilities, or for any other purpose
or in unusual quantities (in Landlord's reasonable determination),
Landlord may install a water meter at Tenant's expense which Tenant
shall thereafter maintain at Tenant's expense in good working order and
repair to register such water consumption (other than water consumption
for ordinary drinking, cleaning and lavatory purposes, as aforesaid),
and Tenant shall pay the actual cost incurred by Landlord for water
consumed as shown on said meter (plus an administrative fee equal to
three percent (3%) of the utility portion of the bill or the maximum
administrative fee permitted under applicable public utility
regulations,
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whichever is less) as Additional Rent, as and when bills are rendered
by Landlord; Tenant shall pay the sewer rent, charge or any other tax,
rent, levy or charge which now or hereafter is assessed, imposed or
shall become a lien upon the Premises or the Property of which they are
a part pursuant to any Legal Requirement made or issued in connection
with any such metered use, consumption, maintenance or supply of water,
water system, or sewage or sewage connection or system; and the bill
rendered by Landlord for the above shall be based upon Tenant's
consumption ("Tenant's Total Water Amount") and shall be payable by
Tenant as Additional Rent, as follows:
(a) On the first day of each calendar month during the Term of
this Lease after the "Estimated Tenant's Monthly Water Amount" (as
defined below) has been established, Tenant shall pay Landlord,
together with Tenant's monthly payment of Fixed Rent hereunder, a sum
to be reasonably determined by Landlord at the end of the initial sixth
month period in which Tenant has moved into the Premises and is
conducting its business therein, representing a payment on account of
one month's Tenant's Total Water Amount, which amount shall be adjusted
from time to time by Landlord (but not more often than once every six
(6) months and such notice of adjustment shall be given no later than
the tenth (10th) day of a month) to reasonably approximate the actual
monthly Tenant's Total Water Amount (the "Estimated Tenant's Monthly
Water Amount"). Until such time as the Estimated Tenant's Monthly Water
Amount shall be established, Tenant shall pay Tenant's Total Water
Amount within thirty (30) days after receipt of an invoice therefor
from Landlord.
(b) Bills for Tenant's Total Water Amount shall be furnished
to Tenant upon preparation thereof by Landlord on a monthly basis. If
Landlord fails to provide Tenant with a monthly bill for a particular
month, and such failure shall continue for more than five (5) days
after notice thereof by Tenant to Landlord given after the end of such
month, then Tenant shall not be obligated to pay an Estimated Tenant's
Monthly Water Amount until such bill has been so furnished to Tenant.
Landlord shall use each Estimated Tenant's Monthly Water Amount to pay
to the utility company each monthly installment of Tenant's Total Water
Amount.
(c) If Landlord uses less than all of an Estimated Tenant's
Monthly Water Amount to pay Tenant's Total Water Amount for a
particular month (such amount not used is called the "Excess Water
Amount"), then within twenty (20) days after Tenant's payment, Landlord
shall refund the Excess Water Amount to Tenant and, if Landlord fails
to do so, Tenant may deduct such amount from the next installment of
the Estimated Tenant's Monthly Water Amount (which installment shall be
deemed a non-recurring item of Additional Rent).
(d) If the amount of the Tenant's Total Water Amount for a
particular month is greater than the Estimated Monthly Water Amount
paid by Tenant for such month (such deficiency is called the "Water
Deficiency"), Tenant, within twenty (20) days after written demand is
made therefor, promptly pay to Landlord the amount of the Water
Deficiency and Tenant shall pay Landlord the full Estimated Monthly
Water Amount on the first day of the next month as provided hereunder.
A Water Deficiency payment shall be deemed a non-recurring item of
Rent.
(e) Each water bill shall indicate, with reasonable
specificity, the manner in which the Tenant's Total Water Amount for
the period in question as set forth thereon, has been calculated,
including the charges, rates and terms utilized in calculating the
Tenant's Water Amount and the Tenant's Total Water Amount in accordance
with the provisions of this paragraph (7).
(f) Landlord shall, after receipt from Tenant of a written
request therefor, supply Tenant with a copy of Landlord's water bill
for a particular billing period as requested by Tenant in such written
notice, within thirty (30) days after Landlord receives such written
notice from Tenant. Notwithstanding the foregoing, if Tenant
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fails to request from Landlord a copy of Landlord's water bill for a
particular billing period within one (1) year after the expiration of
such billing period, Tenant shall be deemed to have waived and shall be
deemed precluded from asking or requesting Landlord to supply such
water bill, and Landlord shall have no obligation thereafter to supply
Tenant with a copy of such water bill for such billing period.
(8) Building-standard cleaning services for the
Office Premises on Business Days, which cleaning services shall be as
described on Exhibit C annexed hereto and made a part hereof, or
substantially the same as those described in Exhibit C (which cleaning
services shall not include any additional cleaning services required as
a result of the storage, preparation, service or consumption of food or
beverages in portions of the Premises) and shall be performed after
5:00 P.M. on such Business Days; it being agreed and understood by
Tenant that: (a) Tenant shall pay Landlord the actual cost incurred by
or on behalf of Landlord for the removal of any of the Tenant's refuse
and rubbish from the Building beyond normal office requirements plus an
administrative fee equal to fifteen percent (15%) of such actual cost
so incurred by Landlord; (b) Tenant, at Tenant's sole cost and expense,
shall cause all portions of the Premises used for the storage,
preparation, service or consumption of food or beverages to be cleaned
daily in a manner satisfactory to Landlord, and to be exterminated
against infestation by vermin, rodents or roaches regularly and, in
addition, whenever there shall be evidence of any infestation, any such
exterminating shall be done at Tenant's sole cost and expense, in a
manner reasonably satisfactory to Landlord, and by persons reasonably
approved by Landlord (taking into account, among other things, labor
harmony within the Building); (c) if Tenant shall perform any cleaning
services in addition to the Building-standard cleaning services, Tenant
shall employ the cleaning contractor providing cleaning services to the
Building on behalf of Landlord provided the rates of such cleaning
contractor are commercially competitive, otherwise such other cleaning
contractor as shall be reasonably approved by Landlord (taking to
account, among other things, labor harmony within the Building); and
(d) Tenant shall comply with any recycling program and/or refuse
disposal program (including, without limitation, any program related to
the recycling, separation or other disposal of paper, glass or metals)
which Landlord shall reasonably impose or which shall be required
pursuant to any Legal Requirements (it being agreed and understood,
however, that Tenant may operate its own recycling program, subject to
Landlord's approval, reasonably exercised, so long as such program
complies with all applicable Legal Requirements and imposes no
additional costs or burdens on the Building or its operations);
(9) a so-called "life safety system" (or local code
equivalent thereof) serving the public portions of the Building and
connecting with any such system operated by Tenant in the Premises at
the connection point(s) on each floor of the Premises (as and to the
extent provided in the description of Landlord's Work in Schedules 2
and 2-A of this Lease), which Landlord shall maintain and repair in
good working order (including compliance with applicable Legal
Requirements, subject to the provisions of Article 7 hereof);
(10) a stand-by generator and related equipment
intended for the uninterrupted operation of the life safety system (or
local code equivalent thereof) described in clause (9) above, which
Landlord shall maintain and repair in good working order (including
compliance with applicable Legal Requirements, subject to the
provisions of Article 7 hereof);
(11) a sprinkler system serving the public portions
of the Building and connecting with Tenant's sprinkler distribution
system (as and to the extent provided in the description of Landlord's
Work in Schedules 2 and 2-A of this Lease), which Landlord shall
maintain and repair in good working order (including compliance with
applicable Legal Requirements pertaining thereto, subject to the
provisions of Article 7 hereof);
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(12) subject to availability to the Building from the
applicable public utility(ies), gas service to the east wall of the
loading dock on the ground floor of the Building (as and to the extent
provided in the description of Landlord's Work for the Ground Floor
Premises set forth on Schedule 2-A in this Lease and subject to Tenant
making any and all necessary connections thereto in accordance with the
provisions of this Lease), which shall be metered by a gas meter
installed by Landlord at Tenant's expense and which meter shall
thereafter be maintained by Tenant at Tenant's expense in good working
order and repair to register such gas consumption. If gas service
cannot be directly metered but is instead registered on a submeter or
checkmeter, then Tenant shall pay the actual cost incurred by Landlord
for gas consumed as shown on said submeter or checkmeter (plus an
administrative fee equal to three percent (3%) of the actual utility
cost so incurred by Landlord or the maximum administrative fee
permitted under applicable public utility regulations, whichever is
less) ("Tenant's Total Gas Amount") as Additional Rent, as follows:
(a) On the first day of each calendar month during the Term of
this Lease after the "Estimated Tenant's Monthly Gas Amount" (as
defined below) has been established, Tenant shall pay Landlord,
together with Tenant's monthly payment of Fixed Rent hereunder, a sum
to be reasonably determined by Landlord at the end of the initial sixth
month period after which Tenant has moved into the Premises and is
conducting its business therein, representing a payment on account of
one month's Tenant's Total Gas Amount, which amount shall be adjusted
from time to time by Landlord (but not more often than once every six
(6) months and such notice of adjustment shall be given no later than
the tenth (10th) day of a month) to reasonably approximate the actual
monthly Tenant's Total Gas Amount (the "Estimated Tenant's Gas
Amount"). Until such time as the Estimated Tenant's Monthly Gas Amount
shall be established, Tenant shall pay Tenant's Total Gas Amount within
thirty (30) days after receipt of an invoice therefor from Landlord.
(b) Bills for Tenant's Total Gas Amount shall be furnished to
Tenant upon preparation thereof by Landlord on a monthly basis. If
Landlord fails to provide Tenant with a monthly bill for a particular
month, and such failure shall continue for more than five (5) days
after notice thereof by Tenant to Landlord given after the end of such
month, then Tenant shall not be obligated to pay an Estimated Tenant's
Monthly Gas Amount until such bill has been so furnished to Tenant.
Landlord shall use each Estimated Tenant's Monthly Gas Amount to pay to
the utility company each monthly installment of Tenant's Total Gas
Amount.
(c) If Landlord uses less than all of an Estimated Tenant's
Monthly Gas Amount to pay Tenant's Total Gas Amount for a particular
month (such amount not used is called the "Excess Gas Amount"), then
within twenty (20) days after Tenant's payment, Landlord shall refund
the Excess Gas Amount to Tenant and, if Landlord fails to do so, Tenant
may deduct such amount from the next installment of the Estimated
Tenant's Monthly Gas Amount (which installment shall be deemed a
non-recurring item of Additional Rent.)
(d) If the amount of the Tenant's Total Gas Amount for a
particular month is greater than the Estimated Monthly Gas Amount paid
by Tenant for such month (such deficiency is called the "Gas
Deficiency"), Tenant, within twenty (20) days after written demand is
made therefor, promptly pay to Landlord the amount of the Gas
Deficiency and Tenant shall pay Landlord the full Estimated Monthly Gas
Amount on the first day of the next month as provided hereunder. A Gas
Deficiency payment shall be deemed a on-recurring item of Rent.
(e) Each gas bill shall indicate, with reasonable specificity,
the manner in which the Tenant's Total Gas Amount for the period in
question as set forth thereon, has been calculated, including the
charges, rates and terms utilized in calculating the Tenant's Gas
Amount and the Tenant's Total Gas Amount in accordance with the
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provisions of this paragraph (12).
(f) Landlord shall, after receipt from Tenant of a written
request therefor, supply Tenant with a copy of Landlord's gas bill for
a particular billing period as requested by Tenant in such written
notice, within thirty (30) days after Landlord receives such written
notice from Tenant. Notwithstanding the foregoing, if Tenant fails to
request from Landlord a copy of Landlord's gas bill for a particular
billing period within one (1) year after the expiration of such billing
period, Tenant shall be deemed to have waived and shall be deemed
precluded from asking or requesting Landlord to supply such gas bill,
and Landlord shall have no obligation thereafter to supply Tenant with
a copy of such gas bill for such billing period.
(13) access to multi-tenant utility closets, shafts
and similar areas in the Building for the purpose of maintaining its
telecommunications and electrical requirements as and to the extent
expressly provided in this Lease, on a "first come, first served" basis
on Business Days during Business Hours (less one (1) hour for lunch),
and on a reservation, "first come, first served" basis after Business
Hours on Business Days and at any time on non-Business Days; it being
agreed and understood that if Tenant shall require access to such areas
after Business Hours on Business Days or at any time on Non- Business
Days, Tenant shall reimburse Landlord, as Additional Rent, for all
actual costs and expenses incurred by or on behalf of Landlord in
providing such access to Tenant and/or in making Building personnel
available to supervise such access by Tenant plus an administrative fee
equal to fifteen percent (15%) of the total costs and expenses so
incurred by or on behalf of Landlord; provided, however, that where
more than one (1) tenant in the Building shall require the same or
substantially the same services during such periods of time, the fees,
costs and expenses in providing such services shall be equitably
apportioned between or among such tenants.
Section 24.2 (A) Landlord shall, as part of Landlord's performance by
itself and its contractor(s) of the "Base Building Work" (as such term is
hereinafter defined in Section 36.1(B) hereof) install or cause to be installed
on each floor of the Office Premises, a perimeter electric base board heating
system. Such base board electric heating system, together with all machinery,
equipment and infrastructure required to operate the same, is collectively
called the "Heating System".
(B) Except for those charges payable by Tenant under subparagraph (C)
following, the electric energy required to operate the Heating System in the
Office Premises shall be measured by the Building's electric meter and shall be
included within Operating Costs as part of the Building's electric usage, as to
which Tenant shall be required to pay Tenant's Operating Share.
(C) During Business Hours of Business Days and during Saturday Hours,
Landlord shall furnish, at no cost or expense to Tenant, sufficient heat to the
Office Premises through the Heating System to meet the criteria therefor set
forth on Exhibit D annexed hereto and made a part hereof. Tenant hereby agrees
that if Tenant requires the provision of heat to the Office Premises at times
other than (1) on Business Hours of Business Days and/or (2) Saturday Hours,
Landlord will, upon reasonable advance notice from Tenant, operate the Heating
System to provide such heat to Tenant and furnish such heat to the Office
Premises to meet the criteria therefor set forth on Exhibit D annexed hereto.
Tenant shall pay Landlord, as Additional Rent, in accordance with Section
2.1(C), for all Landlord's costs and expenses required to operate the Heating
System, including any electric energy charges, to furnish Tenant and the Office
Premises with such non-Business Hours/Business Days/Saturday Hours heat. The
agreed upon rate for such costs and expenses for the twelve (12) month period
commencing with the Rent Commencement Date shall be as set forth on Schedule 6
annexed hereto and made a part hereof, which rate shall thereafter be increased
by the actual increase in the costs and expenses incurred by Landlord therefor.
Landlord hereby agrees to notify from time to time of such increased rate.
Section 24.3 (A) In addition, as part of the Base Building Work,
Landlord shall install
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or cause to be installed on each floor of the Office Premises, two (2) seventy
(70) ton packaged water cooled, variable air volume "VAV" air conditioning units
which are designed and operated to meet the ventilating and air conditioning
criteria also set forth on said Exhibit D. Such water cooled, VAV air
conditioning units, together with all machinery, equipment and infrastructure
required to operate the same, are collectively called the "A/C System".
(B) Tenant shall be responsible, at Tenant's sole cost and expense, to
pay for all electric energy consumed in the use and operation of the A/C System.
Landlord shall, as part of the performance of the Base Building Work for the
Office Premises, connect the A/C System to Tenant's electric check meter as more
particularly described in Article 13 of this Lease, in order to measure Tenant's
consumption of electric energy in Tenant's use of the A/C System.
(C) During Business Hours of Business Days and during Saturday Hours,
Landlord shall furnish, at no cost or expense to Tenant, sufficient quantities
of condenser water from Landlord's cooling tower equipment located on the roof
of the Building, required to operate the A/C System to meet said criteria. The
Landlord's cooling tower equipment, together with the pipes, machinery and other
equipment required to transport the condenser water from such machinery on the
roof of the Building to Tenant's A/C System is called the "Building Condenser
Water System".
(D) Tenant hereby agrees that, if Tenant operates the A/C System at
times other than during (1) Business Hours of Business Days, and/or (2) Saturday
Hours, then Tenant shall be required to reimburse Landlord, as Additional Rent,
as provided in Section 2.1(C) above, for (i) all condenser water supplied by
Landlord to Tenant to operate the A/C System during such time, and (ii) all
additional costs incurred by Landlord to operate Tenant's A/C System and the
Building Condenser Water System; provided, however, that with respect to clause
"(ii)", where more than one (1) tenant in the Building shall require any such
service during such periods of time, the fees, costs and expenses in so
operating the Building Condenser Water System shall be equitably apportioned
between or among such tenants. The agreed upon rates for such costs and expenses
for the twelve (12) month period commencing with the Rent Commencement Date
shall be as set forth on Schedule 6 annexed hereto and made a part hereof, which
rates shall thereafter be increased by the actual increase in the costs and
expenses incurred by Landlord therefor. Landlord hereby agrees to notify Tenant
from time to time of such increased rates. In addition, the wear and tear on,
additional maintenance to, and depreciation of, the Building Condenser Water
System from Tenant's use of the A/C System other than during Business Hours of
Business Days and Saturday Hours, as determined by Landlord with reasonable
specificity, shall be included within Operating Costs.
(E) (1) Tenant shall have the right at any time prior to Landlord's
delivery of the first "Last Call Notice"(as defined below), by notice to
Landlord, to reserve up to three hundred (300) tons of additional condenser
water from the Building Condenser Water System to service any supplementary air
conditioning system(s) which Tenant desires to install to serve one or more
floors in the Premises. If Tenant has not theretofore exercised its right to
reserve all 300 tons of additional condenser water, as aforesaid, then, if
Landlord shall receive a request from another tenant or occupant of the Building
(or a proposed tenant or occupant of the Building) for all or a portion of the
excess capacity in the Building Condenser Water System and such excess capacity
in the Building Condenser Water System then equals three hundred (300) tons or
less (after first deducting the number of tons of additional condenser water, if
any, theretofore reserved by Tenant) (such amount being the "Remaining Available
Tonnage"), Landlord shall notify Tenant of the amount of tonnage so requested by
such tenant or occupant (or such prospective tenant or occupant) (the "Last Call
Notice"). Tenant shall have the right, by notice to Landlord given within
fifteen (15) Business Days after its receipt of the Last Call Notice, TIME BEING
OF THE ESSENCE, to reserve all or a portion of such Remaining Available Tonnage.
If Tenant does not timely exercise its right to reserve additional condenser
water from the Building Condenser Water System within such 15-Business Day
period, Tenant shall have forever waived its right to reserve the number of tons
of additional condenser water so reserved by such tenant or occupant (or such
prospective tenant or occupant) as set forth in the Last Call Notice, subject,
however, to the immediately following sentence. If Tenant does not timely
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exercise its right to reserve additional condenser water from the Building
Condenser Water System within such 15-Business Day period, but the amount of
tonnage so reserved by such tenant or occupant (or such prospective tenant or
occupant) is less than the Remaining Available Tonnage, then Tenant shall be
entitled to additional Last Call Notice(s), in accordance with this paragraph,
each time a tenant or occupant (or a prospective tenant or occupant) requests
all or a portion of the Remaining Available Tonnage (after first deducting the
number of tons theretofore waived by Tenant by reason of its failure to timely
respond to prior Last Call Notice(s), as aforesaid).) In between any Last Call
Notice and a subsequent Last Call Notice, as aforesaid, Tenant shall have the
right by notice to Landlord to reserve up to the Remaining Available Tonnage
(after first deducting the number of tons theretofore waived by Tenant by reason
of its failure to timely respond to prior Last Call Notice(s), as aforesaid.
Nothing herein shall be construed to waive Tenant's right, in the event the
Offer Space becomes part of the Premises, to receive condenser water to operate
the A/C System as provided in Section 24.3(C) above. Moreover, the 300 tons of
additional condenser water set forth above shall be increased by fifty (50) tons
for each floor of Offer Space (prorated for any partial floor of Offer Space)
leased by Tenant pursuant to Article 39 below.
(2) Any such installation of a supplementary air conditioning
system(s) by Tenant shall be subject to the applicable provisions of this Lease
including Article 4 hereof. In the event(s) Tenant so timely reserves additional
condenser water pursuant to this Section 24.3(E), Tenant shall from and after
each such event (but not earlier than the Rent Commencement Date) pay to
Landlord the Condenser Water Access Charge, as Additional Rent, as provided in
Section 2.1(C) above, at the rates for such charge and overtime labor of the
twelve (12) month period commencing on the Rent Commencement Date set forth on
Schedule 6 annexed hereto and made a part hereof, which rate shall thereafter be
increased by the actual increase in the costs and expenses incurred by Landlord
therefor. In addition, at such time, if ever, that Tenant installs and operates
such supplementary air conditioning system(s), Landlord shall operate the
Building Condenser Water System to transport the condenser water to Tenant's
supplementary air conditioning system(s) seven (7) days a week 24 hours per day.
The agreed upon rates for such costs and expenses for the twelve (12) month
period commencing with the Rent Commencement Date shall be as set forth on
Schedule 6 annexed hereto and made a part hereof, which rates shall thereafter
be increased by the actual increase in the costs and expenses incurred by
Landlord therefor. Landlord hereby agrees to notify Tenant from time to time of
such increased rates.
Section 24.4 (A) Landlord has advised Tenant that the Heating System
and the A/C System, respectively, have been designed to permit Tenant to obtain
from Landlord the volume, quantity and level of cooled and/or ventilated air
meeting the criteria described on Exhibit D, based on a population density of
one (1) person per one hundred (100) square feet of "carpetable floor area" in
the Premises (as such term is hereinafter defined) plus the installation and use
of electrical and business equipment required for normal office occupancy
therein (i.e., five (5) watts per square foot of "carpetable floor area" in the
Premises). Landlord agrees to operate, maintain and keep in good repair the A/C
System and Heating System including, without limitation, the distribution
system, and shall use commercially reasonable efforts to keep the A/C System and
Heating System properly functioning in accordance with the performance and
criteria set forth on Exhibit D annexed hereto and made a part hereof and within
any applicable parameters set forth in Legal Requirements (subject to the
applicable terms of this Lease, including, without limitation, Section 24.4(B)
below). Landlord shall promptly investigate any air quality complaints made by
Tenant and, provided the cause of an adverse change in air quality is not the
result of any act or omission of Tenant or occurrence within the Premises (in
which event Tenant shall be required to remedy same), Landlord shall promptly
take steps to remedy or cause others to remedy such adverse change in air
quality in the Premises. As used in this Section 24.4(A), "carpetable floor
area" means the area within the Premises which can be walked on, carpeted and
utilized by Tenant, but specifically excluding any mechanical, electrical,
janitorial or other similar closets or rooms as well as stairwells.
(B) If Tenant uses and/or occupies the Premises other than for
the Permitted Use, and/or alters or improves the Premises other than in
accordance with the approved plans for Tenant's Alterations, and/or installs the
distribution portions of either System so that the
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Systems cannot operate on an optimum basis as designed, and/or installs business
or electrical equipment in excess required for normal office occupancy, and/or
if Tenant and/or its agents and employees tampers with, adjusts, or in any way
or manner adversely affects the equipment, machinery and/or mechanical
installations comprising each System, and/or if Tenant fails to comply with
Landlord's reasonable written rules and regulations for the operation of each
System, so as to maximize its rating efficiency and the ability to meeting the
performance and criteria set forth on Exhibit D hereof, respectively, as the
case may be, Landlord shall not be responsible for the improper functioning of
any System as provided on Exhibit D, as a result of any of the foregoing
circumstances or failures.
Section 24.5 Subject to the terms of this Lease, Landlord, throughout
the Term of this Lease, shall have unrestricted access to any room located
within or adjacent to the Premises, in which machinery and equipment either (1)
comprising the Heating and A/C Systems, or (2) required to operate the same, is
located.
Section 24.6 (A) Landlord reserves the right to stop all or some of the
Building Systems and Building services, including the cleaning and elevator
services, as aforesaid, if any, when necessary by reason of accident or for
repairs, alterations, replacements or improvements necessary or desirable in the
judgment of Landlord, for as long as may be reasonably required by reason
thereof. Landlord agrees, however, that at least one (1) elevator (whether
passenger or freight) shall be kept in service at all times during any such
cessation of Building Systems or Building services by reason of any of the
foregoing events, except that in the case of ordinary maintenance performed by
Landlord, Landlord agrees that not more than two (2) passenger elevators in each
elevator bank and not more than one (1) freight elevator in each elevator bank
shall be taken out of service during the performance of ordinary maintenance, as
aforesaid. Notwithstanding the foregoing, Landlord shall have no responsibility
or liability for interruption, curtailment or failure to supply and/or operate
Heating, A/C, elevator, electrical, plumbing or other Building Systems or
Building services when prevented by Unavoidable Delays or by any Legal
Requirement of any Legal Authority or due to the exercise of its right to stop
service as provided in this Article 24, but Landlord hereby agrees that any such
stoppage of Building Systems or Building services or any such repair,
alteration, replacement or improvement work shall be undertaken and/or performed
in a manner which minimizes, to the extent reasonably practicable, any
interference with Tenant's business operations in the Premises.
(B) The exercise of such right or such failure by Landlord
shall not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any compensation or to any abatement or diminution of Rental,
or relieve Tenant from any of its obligations under this Lease, or impose any
liability upon Landlord or its agents by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise, except
as is otherwise expressly set forth in Section 25.2(B) below.
Section 24.7 Landlord shall manage and maintain the Building consistent
with other first class buildings with retail premises in the Comparable Market.
Subject to the specific provisions of this Lease, the services which Landlord
has expressly agreed to provide pursuant to this Lease shall be of a quality
consistent with those similar services provided in other first class office
buildings with retail premises in the Comparable Market.
Section 24.8 The provisions of Exhibit D are incorporated herein by
reference.
ARTICLE 25
INABILITY TO PERFORM; INDEPENDENT COVENANTS
Section 25.1 (A) Except as is otherwise expressly set forth in Section
25.2(B) below, this Lease and the obligations of Tenant to pay Rent hereunder
and perform all of the other terms, covenants and agreements hereunder on the
part of Tenant to be performed shall in no wise be affected, impaired or excused
because Landlord is unable to fulfill any of its obligations under this
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Lease, or to supply or is delayed in supplying any service expressly or implied
to be supplied, or is unable to make, or is delayed in supplying any repair,
additions, alterations or decorations, or is unable to supply or is delayed in
supplying any equipment or fixtures if Landlord is prevented or delayed from so
doing by reason of "Unavoidable Delays" (as defined in Section 25.1(B) below).
(B) The term "Unavoidable Delays" shall mean strikes, labor
troubles, accidents, or any other such events beyond the reasonable control of
the party hereto charged with performance of a non-monetary obligation
hereunder, including but not limited to, laws, government preemption in
connection with a national emergency or Legal Requirements of any Legal
Authority or conditions of supply and demand which have been or are affected by
war or other emergency, or when, in the judgment of Landlord (if Landlord party
so prevented or delayed), temporary interruption of such services is necessary
by reason of the conditions of supply and demand which have been or are affected
by war or other emergency. Notwithstanding anything contained herein to the
contrary, in no event shall Tenant's Rental obligations hereunder be excused due
to Unavoidable Delays.
Section 25.2 (A) Except as is otherwise expressly set forth in Section
25.2(B) below, it is expressly understood that no such inability or delay in
either the performance of obligations or the supply of services on the part of
Landlord to be performed and/or supplied in this Lease provided, as the case may
be, which results from or is due to any of the reasons set forth above in
Section 25.1 above, or any other reason beyond Landlord's reasonable control,
shall constitute a constructive eviction, and that Landlord shall not be liable
to Tenant in damages, nor shall Tenant be entitled to make any claims for or be
entitled to any abatement in the payment of Fixed Rent or additional rent, in
the event of such inability or delay.
(B) Notwithstanding the foregoing provisions of this Article
25 or other provisions of this Lease, in the event that (1)(a) there shall be an
interruption or suspension of the furnishing or supply of any "critical service"
from Landlord to Tenant hereunder (i.e., electricity, HVAC, water, condenser
water, Building-standard cleaning services, and elevator service) due to an act
or omission of Landlord or its agents, employees or contractors (expressly
excluding acts or omissions of any utility company servicing the Building) which
shall materially impair the operation of Tenant's business in the Premises and
render all or any part of the Premises inaccessible or unusable (a "Service
Interruption") or (b) the performance of repairs, alterations, additions or
improvements in the Premises or the Building by Landlord or its agents,
employees or contractors or the failure of Landlord to perform such repairs or
other work as and when required under this Lease shall materially impair the
operation of Tenant's business in the Premises and render all or any part of the
Premises inaccessible or unusable and such repairs or other work is not
necessitated by the acts or omissions of Tenant or its contractors, licensees,
agents, servants, invitees or employees (a "Work Interruption"), and (2) such
Service Interruption or Work Interruption, whichever, is applicable, shall
continue in excess of five (5) consecutive Business Days (a Service Interruption
or Work Interruption that satisfies all of the foregoing conditions being
hereinafter referred to as a "Material Interruption"), then, as Tenant's sole
remedy (except as provided in Sections 25.2(C) and (D) below) in connection with
such Material Interruption, Tenant shall be entitled, on prior written notice to
Landlord (and to any Mortgagee or Lessor whose name and address was theretofore
provided in writing to Tenant), to an abatement of Fixed Rent (based upon the
rentable square footage of the Premises which is unusable or inaccessible as a
result of the Material Interruption) payable pursuant to Article 2 hereof for
the period which shall begin on the sixth (6th) consecutive Business Day of such
Material Interruption and which shall end on the earlier of the day on which (a)
such Material Interruption shall cease or (b) Tenant shall recommence the use of
the affected portion of the Premises for the normal conduct of its business. In
the event that Landlord and Tenant are unable to agree as to the foregoing
matters referred to above in this Section 25.2(B), either party shall have the
right to refer their dispute or disagreement, as to the matter in question, to
resolution by Expedited Arbitration in accordance with the provisions of Section
34.2 of this Lease.
(C) If such Material Interruption shall continue in excess of
thirty (30) consecutive Business Days, then Tenant shall be entitled, on prior
written notice to Landlord (and
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to any Mortgagee or Lessor whose name and address was theretofore provided in
writing to Tenant), to terminate this Lease; provided, however, if the
elimination of such Material Interruption is prevented or delayed beyond such 30
consecutive Business Days due to Unavoidable Delays (which specifically include,
without limitation, the period of time necessary for any Mortgagee or Lessor
which is not an Affiliate of Landlord to cure such Material Interruption on
Landlord's behalf as more fully set forth in Section 8.3 above) and/or if the
elimination of such Material Interruption continues beyond such 30 consecutive
Business Days and Landlord is then diligently proceeding in good faith to
eliminate such Material Interruption, then such termination right shall not
become effective for so long as the failure to eliminate such Material
Interruption is attributable to Unavoidable Delays and/or for so long as
Landlord is diligently proceeding in good faith to eliminate such Material
Interruption. In the event that Landlord and Tenant are unable to agree as to
the foregoing matters referred to above in this Section 25.2(C), either party
shall have the right to refer their dispute or disagreement, as to the matter in
question, to resolution by arbitration in accordance with the provisions of
Article 34 of this Lease.
(D) In the event any such Service Interruption continues in
excess of five (5) consecutive Business Days, and Landlord is not then
diligently attempting to eliminate such Service Interruption, then in addition
to Tenant's remedies set forth in Section 25.2(B) above, Tenant shall have the
right, on five (5) days' prior notice to Landlord, to cure any such Service
Interruption if and only to the extent such curing can be effected without
Tenant in any way affecting the Structural Elements of the Building or any
Building Systems not exclusively serving the Premises. Landlord shall reimburse
Tenant for the reasonable costs and expenses incurred by Tenant in so curing any
such Service Interruption, within thirty (30) days following receipt by Landlord
of: (i) a request for payment of such costs and expenses; and (ii) Tenant's or
its contractor(s)' respective invoices for all work done and all supplies
furnished in connection with such work for which payment is being requested, or
receipted bills evidencing the expenditure of monies equal to the amount for
which payment is being requested. If Landlord does not so reimburse Tenant
within such 30-day period (subject to Landlord's right to dispute Tenant's claim
for reimbursement pursuant to the last sentence of this Section 25.2(D)),
interest shall accrue on the amount owed to Tenant at the Interest Rate from and
after the expiration of such 30-day period and Tenant may, at Tenant's option,
apply any unpaid amount as a credit toward Tenant's next due Fixed Rent
obligations under this Lease. In the event that Landlord and Tenant are unable
to agree as to the foregoing matters referred to above in this Section 25.2(D),
either party shall have the right to refer their dispute or disagreement, as to
the matter in question, to resolution by Expedited Arbitration in accordance
with the provisions of Section 34.2 of this Lease, and if such dispute is
resolved in Tenant's favor, Landlord shall within thirty (30) days thereafter
pay to Tenant the disputed amount to the extent resolved in Tenant's favor.
(E) Nothing in this Article 25 shall be deemed to modify the
provisions of Articles 10 or 11 hereof.
ARTICLE 26
BILLS AND NOTICES
Section 26.1 Except as otherwise expressly set forth in this Lease, any
bill, statement, notice, consent, demands, requests or communication (each, as
used in this Lease and in this Article 26, a "notice") which are required to be
given under this Lease shall be in writing and shall be deemed sufficiently
given or rendered if (A) delivered by hand (against a signed receipt), (B) sent
by registered or certified mail (return receipt requested), (C) by nationally
recognized overnight courier, or (D) sent by facsimile transmission with a copy
sent simultaneously by nationally recognized overnight courier, addressed as
follows:
(1) if to Tenant at Paine Webber Incorporated, 1000 Harbor
Boulevard-Fifth Floor, Weehawken, New Jersey 07087, Attn: Corporate
Real Estate, with a copy of any default notice to Paine Webber
Incorporated, 1200 Harbor Boulevard-Tenth Floor, Weehawken, New Jersey
07087, Attn: Managing Attorney-Real Estate; or
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(2) if to Landlord at 2 Sixth Street, Jersey City,
New Jersey, Attn.:Richard S. LeFrak, Esq., and with copies to (x)
Howard L. Boris, Esq., c/o LeFrak Organization, Inc., 97-77 Queens
Boulevard, Rego Park, New York 11374, (y) Sills, Cummis, Radin,
Tischman, Epstein & Gross, P.A., One Riverfront Plaza, Newark, New
Jersey 07102, Attn: Ted Zangari, Esq., and (z) each Mortgagee and
Lessor which shall have requested same, by notice given in accordance
with the provisions of this Article 25 at the address designated by
such Mortgagee or Lessor;
or to such other addressees as Landlord, Tenant or any Mortgagee or Lessor may
designate as its new addressees for such purpose by notice given to the other in
accordance with the provisions of this Article 26.
Section 26.2 Any such notice shall be deemed to have been rendered or
given on the date when it shall have been hand delivered, three (3) Business
Days from when it shall have been mailed as provided in this Article 26, on the
date of delivery by overnight courier, or if by facsimile transmission, the date
of the confirmed transmission. Anything contained herein to the contrary
notwithstanding, any Operating Statement, Tax Statement or any other bill,
statement, consent, notice, demand, request or other communication from Landlord
to Tenant with respect to any item of Rent (other than any default notice) may
be sent to Tenant by regular United States mail or by facsimile transmission.
All such communications from Landlord to Tenant with respect to any item of Rent
(other than any default notice) shall be addressed to Paine Webber Incorporated,
1000 Harbor Boulevard-Fifth Floor, Weehawken, New Jersey 07087, Attn: Real
Estate Finance, or to such other address as Tenant may designate as its new
billing address, in lieu thereof, by notice given to Landlord in accordance with
the provisions of Section 26.1 above.
Section 26.3 A notice may be given by a party hereto or on such party's
behalf by its attorneys or, in the case of Landlord, by Landlord's managing
agent.
ARTICLE 27
CONSTRUCTION OF LEASE
The following terms shall be construed as follows:
(A) the term "office", or "offices", as used in this Lease,
shall mean the use of the Premises only for the Permitted Use and shall prohibit
the use of the Premises for any use as a store or stores, for any retail use, or
for the sale or display, at any time, of good, wares or merchandise of any kind,
or for any Restricted Use;
(B) the term "Landlord", as used in this Lease, shall mean a
landlord or Lessor, and as used in this Lease means only the Landlord, or the
Mortgagee then in possession, for the time being of the Property (or the Lessor
under a Superior Lease of the Building and/or of the Property and the Building,
respectively) of which the Premises is a part, so that in the event of any
sale(s) of the Property and/or the Building or of such Superior Lease,
respectively as the case may be, or in the event of a Superior Lease of the
Building and/or of the Property, respectively as the case may be, the landlord
at the time in question automatically shall be entirely freed and relieved of
all covenants and obligations of Landlord hereunder arising after the date of
the sale or transfer, and it shall be deemed and construed without further
agreement between the parties or their successors in interest, or between the
parties and the purchaser, at any such sale, or the Lessor under the Superior
Lease of the Building and/or of the Property and the Building, respectively,
that the purchaser or the Lessor under the Superior Lease of the Building and/or
the Property and the Building, respectively, has assumed and agreed to carry out
any and all covenants and obligations of Landlord hereunder arising after the
date of the sale or transfer, provided, however, that if the purchaser involved
in such sale or the transfer of the Landlord's interest, respectively, shall
have agreed with Landlord to assume all of Landlord's covenants and obligations
under this Lease arising prior to the date of such sale or transfer, and if such
agreement is in writing and a copy of such writing is delivered to Tenant, then
Landlord shall be
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entirely freed and relieved of all covenants and obligations of Landlord
hereunder whether or not arising prior to or after the date of such sale or
transfer;
(C) the terms "Landlord shall have no liability to Tenant" or
"the same shall be without liability to Landlord (or Landlord)" or "without
incurring any liability to Tenant therefore", respectively as used in this
Lease, shall mean that Tenant is not entitled to terminate this Lease, or to
claim actual or constructive eviction, partial or total, or to receive any
abatement or diminution in the payment of Rent, or to be relieved in any manner
of any of its other obligations hereunder, or to be compensated for loss or
injury suffered, or to enforce any other right or kind of liability whatsoever
against Landlord, under or with respect to this Lease or with respect to
Tenant's use or occupancy of the Premises, except as and to the extent otherwise
expressly set forth in this Lease;
(D) the term "Tenant", as used in this Lease, shall mean
Tenant herein named or any permitted assignee or other successor in interest
(immediate or remote) of Tenant herein named, which at the time in question is
the owner of Tenant's estate and interest granted by this Lease; but the
foregoing provisions of this subsection shall not be construed to permit any
assignment of this Lease or to relieve Tenant herein named or any assignee or
other successor in interest (whether immediate or remote) of Tenant herein named
from the full and prompt payment, performance and observance of the covenants,
obligations and conditions to be paid, performed and observed by Tenant under
this Lease;
(E) the term "person", as used in this Lease, shall mean a
natural person or persons, a corporation, a partnership, an association, a joint
venture, an estate, a trust or any other legal entity;
(F) the terms "herein", "hereof" and "hereunder", and words of
similar import, as used in this Lease, shall be construed to refer to this Lease
as a whole, and not to any particular Article or paragraph, unless expressly so
stated;
(G) the term "and/or" when applied to one or more matters or
things, as set forth in this Lease, shall be construed to apply to any one or
more or all thereof as the circumstances warrant at the time in question; and
(H) the terms "re-enter" and "re-entry", as used in this
Lease, are not restricted to their technical legal meanings.
ARTICLE 28
ADJACENT EXCAVATION; SHORING
If an excavation shall be made upon land adjacent to the
Property and the Building, or shall be authorized to be made, respectively, as
the case may be, Tenant shall afford to the person causing or authorized to
cause such excavation, license to enter upon the Premises for the purpose of
doing such work as said person shall deem reasonably necessary under the
circumstances to preserve the wall or the Building from injury or damage and to
support the same by proper foundations, without any claim for damages or
indemnity against Landlord, or diminution or abatement of Rent hereunder.
ARTICLE 29
RULES AND REGULATIONS
Section 29.1 Tenant and Tenant's servants, employees, agents, visitors,
and licensees shall observe faithfully, and comply strictly with the rules and
regulations as set forth on Exhibit E annexed hereto and made a part hereof, and
such other and further reasonable rules and regulations as Landlord or
Landlord's agent(s) may from time to time adopt (such existing rules and
regulations, as supplemented by any further rules and regulations, as aforesaid,
are
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collectively called the "Rules and Regulations").
Section 29.2 In case Tenant disputes the reasonableness of any
additional Rule or Regulation hereafter made or adopted by Landlord or
Landlord's agents, the parties hereto agree to submit the question of the
reasonableness of such Rule or Regulation for decision to arbitration as
provided in Article 34 hereof. The right to dispute the reasonableness of any
additional Rule or Regulation upon Tenant's part shall be deemed waived unless
the same shall be asserted by service of a notice in writing upon Landlord
within thirty (30) days after the giving of notice thereof.
Section 29.3 Landlord agrees that it shall enforce the Rules and
Regulations uniformly against all tenants of the Building. If any Rule or
Regulation is not uniformly enforced against all other tenants of the Building,
such Rule or Regulation cannot be enforced against Tenant. Landlord shall not be
liable to Tenant for violations of any Rules and Regulations by any other
tenant, its servants, employees, agents, visitors or licensees. In the event of
any conflict between the Rules and Regulations and the provisions of this Lease,
the provisions of this Lease shall govern and control.
ARTICLE 30
SECURITY DEPOSIT
Section 30.1 If, after the date hereof, any entity shall, as described
in Section 12.9(B) or 12.13(B) or elsewhere in Article 12 hereof, deposit with
Landlord a sum of money as security for the full and faithful performance and
due observance by Tenant of the terms, covenants, agreements, provisions and
conditions of this Lease (the "Security Deposit"), it is agreed that if an Event
of Default shall occur under this Lease, including, but not limited to, the
payment of Fixed Rent and Additional Rent, Landlord may use, apply or retain the
whole or any part of the Security Deposit to the extent required for the payment
of any Fixed Rent and Additional Rent or any other sum as to which Tenant is in
default, hereunder, or for any sum which Landlord may expend or may be required
to expend by reason of such Event of Default, including, but not limited to, any
damages or deficiency in the re-letting of the Premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord.
Section 30.2 In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants, agreements and conditions of this
Lease, the Security Deposit shall be returned to such entity after the
Expiration Date and after delivery of entire possession of the Premises to
Landlord in the manner and within the time period set forth in Article 1 of this
Lease.
Section 30.3 In the event of a sale of the Property and/or the
Building, or the leasing of the Property and/or the Building, respectively, as
the case may be, Landlord shall have the right to transfer the then amount of
the Security Deposit to the vendee or lessee in question, and Landlord shall
thereupon be released by Tenant from all liability for the return of such
Security Deposit. Tenant agrees to look solely to the new Landlord for the
return of the Security Deposit; it being agreed and understood that the
provisions hereof shall apply to every transfer or assignment made of the
Security Deposit to a new Landlord hereunder.
Section 30.4 Tenant covenants that it will not assign or encumber or
attempt to assign or encumber the Security Deposit, and that neither Landlord,
nor its successors or assigns, shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
ARTICLE 31
BROKER
Section 31.1 (A) Each party represents and warrants to the other that
it has not dealt with any broker or other person in connection with this Lease
except as set forth in this Article 31.
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(B) Landlord's exclusive rental agent for the Building and its
broker for this Lease, whom Tenant recognizes as Landlord's exclusive rental
agent and broker, is Cushman & Wakefield, Inc. and Cushman & Wakefield of New
Jersey, Inc. (collectively, "C&W"), and Landlord shall pay C&W its commission
pursuant to separate agreement.
(C) Tenant represents that it has engaged and dealt with C&W
and Cushman Realty Corporation as its broker for this Lease (collectively, the
"Tenant's Broker"), whom Landlord recognizes as the Tenant's Broker, and
Landlord shall pay Tenant's Broker its commission pursuant to separate
agreement.
(D) The execution and delivery of this Lease by each party
shall be conclusive evidence that such party has relied upon the foregoing
representation and warranty.
Section 31.2 (A) Tenant shall indemnify and hold Landlord harmless from
and against any and all claims for commission, fee or other compensation by any
person (other than Tenant's Broker) who shall claim to have dealt with Tenant in
connection with this Lease and for any and all costs incurred by Landlord in
connection with such claims, including, without limitation, reasonable
attorneys' fees and disbursements.
(B) Landlord shall indemnify and hold Tenant harmless from and
against any and all claims for commission, fee or other compensation by any
person (including Tenant's Broker) who shall claim to have dealt with Landlord
in connection with this Lease and for any and all costs incurred by Tenant in
connection with such claims, including, without limitation, reasonable
attorneys' fees and disbursements.
Section 31.3 The provisions of this Article 31 shall survive the
Expiration Date.
ARTICLE 32
CONSENTS
Wherever it is specifically provided in this Lease that a
party's consent is not to be unreasonably withheld, a response to a request for
such consent shall also not be unreasonably delayed. If either Landlord or
Tenant considers that the other has unreasonably withheld or delayed a response,
it shall so notify the other party within ten (10) days after receipt of such
response, or, in case such response is not received, within twenty (20) days
after making its request for the response. Except as provided in Section 12.6(B)
above, Tenant hereby waives any claim for damages against Landlord which it may
have based upon any assertion that Landlord has unreasonably withheld or
unreasonably delayed any such consent. Except as provided in Section 12.6(B)
above, Tenant agrees that its sole remedy in any such case shall be an action or
proceeding to enforce the relevant provision of this Lease by specific
performance, injunction or declaratory judgment.
ARTICLE 33
ESTOPPEL CERTIFICATES
Section 33.1 (A) From time to time following the date of this Lease and
thereafter throughout the Term, within ten (10) Business Days following receipt
by Tenant of Landlord's request therefor, Tenant shall deliver to Landlord or
its designee, which may include, but not be limited to, a purchaser of the Land
and/or the Building, a Mortgagee or Lessor, respectively, at no cost or expense
to Landlord, a written statement executed and acknowledged by Tenant, in form
satisfactory to Landlord stating: (1) that this Lease is then in full force and
effect and has not been modified (or if modified, setting forth all such
modifications); (2) the date to which the Fixed Rent, additional rent and other
charges hereunder have been paid, together with the amount of the monthly Fixed
Rent then payable; (3) whether or not, to the best knowledge of Tenant, Landlord
is in default hereunder, and setting forth the specific nature of all such
defaults, if any;
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(4) the amount (or remaining balance) of the Security Deposit, if any, under
this Lease; (5) whether there are any subleases affecting the Premises; (6) the
address to which all notices and communications to Tenant under the Lease are to
be sent; and (7) any other matters reasonably requested by Landlord. If Tenant
disputes Landlord's request for Tenant to certify as to any other matters as
provided in clause (7) above, the reasonableness of Landlord's request shall be
determined by Expedited Arbitration pursuant to Section 34.2 below.
(B) Tenant acknowledges that any statement delivered pursuant
to this Article 33 may be relied upon by any purchaser or landlord of the Land
and/or the Building, or Landlord's interest in the Land and/or the Building
and/or by any Lessor or by any Mortgagee, or by any assignee of a Mortgagee or
Lessor, respectively, as the case may be.
(C) If Tenant fails or refuses to timely deliver any such
estoppel certificate to Landlord, as aforesaid, and thereafter for more than
five (5) Business Days following a second request from Landlord, provided such
second notice from Landlord informs the Tenant that a continuing failure or
refusal to deliver any such estoppel certificate will be deemed an Event of
Default of this Lease, then such failure or refusal beyond the 5-Business Day
period following such second request from Landlord shall be an Event of Default.
Section 33.2 From time to time, within ten (10) Business Days next
following request by Tenant, Landlord shall deliver to Tenant a written
statement executed by Landlord (A) stating that this Lease is then in full force
and effect and has not been modified (or if modified, setting forth all
modifications), (B) setting forth the date to which the Fixed Rent, all
additional rent and any other items of Rent have been paid, (C) stating whether
or not, to the best knowledge of Landlord, Tenant is in default under this
Lease, and, if Tenant is in default, setting forth the specific nature of all
such defaults, and (D) as to any other matters reasonably requested by Tenant
and related to this Lease.
ARTICLE 34
ARBITRATION/EXPEDITED ARBITRATION
Section 34.1 (A) Either party may request arbitration in accordance
with this Section 34.1 of any provision of this Lease in dispute wherein
arbitration is expressly stated in such provision as the appropriate remedy for
such dispute, except however, for any arbitration of (i) matters in dispute with
respect to the determination of Fair Market Rent, which arbitration shall be
conducted in accordance with the provisions of Section 2.7(B) of this Lease and
(ii) matters in dispute which may be resolved by Expedited Arbitration pursuant
to Section 34.2 below. The party requesting arbitration shall do so by giving
notice to that effect to the other party, specifying in said notice the name and
address of the person designated to act as an arbitrator on its behalf.
(B) Within ten (10) days after the service of such notice, the other
party shall give notice to the first party specifying the name and address of
the person designated to act as an arbitrator on its behalf. If the second party
fails to notify the first party of the appointment of its arbitrator within the
aforesaid time period, then subject to the provisions of Section 34.1(E) below,
the appointment of the second arbitrator shall be made in the same manner as
hereinafter provided for the appointment of a third arbitrator in a case where
the two arbitrators appointed hereunder and the parties are unable to agree upon
such appointment.
(C) The two arbitrators so chosen shall meet within ten (10) days after
the second arbitrator is appointed, and shall conduct such hearings and
investigations as they may deem appropriate. If within thirty (30) days after
the second arbitrator is appointed, the two (2) arbitrators shall not agree upon
the question in dispute, they shall together appoint a third arbitrator. In the
event the two arbitrators are unable to agree upon such appointment within forty
(40) days after the appointment of the second arbitrator, the third arbitrator
shall be selected by the parties themselves if they can agree to such selection
within a further period of ten (10) days. If the parties do not so agree, then
either party, on behalf of both and on notice to the other, may
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request such appointment by the American Arbitration Association (or any
successor organization thereto) in accordance with its commercial arbitration
rules then prevailing, or if the American Arbitration Association (or such
successor organization) shall fail to appoint said third arbitrator within ten
(10) days after such request is made, then either party may apply, on notice to
the other, to the Superior Court of the State of New Jersey (or any other court
having jurisdiction and exercising functions similar to those now exercised by
said court) for the appointment of such third arbitrator.
(D) The third arbitrator shall conduct such hearings and
investigations as he may deem appropriate and, within thirty (30) days of this
designation, render an independent decision of the matter in dispute, which
decision shall be conclusive and binding upon the parties. Each arbitrator
chosen or appointed pursuant to this Section 34.1 shall be a disinterested
person having at least ten (10) years real estate experience as an arbitrator in
the particular matter in dispute.
(E) If Tenant gives notice requesting arbitration, Tenant
shall simultaneously serve a duplicate of the first notice on the Mortgagee and
each Lessor of which Tenant has received prior notice in writing. If Landlord
fails to appoint an arbitrator within ten (10) days after the giving of the
first notice by Tenant, such Mortgagee or Lessor shall have an additional period
of ten (10) days within which to appoint the second arbitrator, who shall
thereupon be recognized in all respects as if he had been appointed by Landlord.
Section 34.2 (A) Either party may request arbitration on an expedited
basis ("Expedited Arbitration"), as set forth in this Section 34.2, with respect
to disputes concerning (i) Tenant's claimed amount and calculation of the Extra
Costs, as provided in Section 1.1(B)(3)(d) hereof, (ii) whether a prospective
use is a Non-Compatible Use, as provided in Section 3.7(C)(3)(b), (iii) the
reasonableness of any denial by Landlord of consent to any Alterations proposed
to be made by Tenant, as provided in Section 4.11(A) above, (iv) the
reasonableness of any denial by Landlord of consent to any contractor selected
by Tenant to perform Alterations, as provided in Section 4.11(A) above, (v) the
reasonableness of any refusal by Landlord to consent to any proposed assignment
or subletting by Tenant, as provided in Section 12.6(A) above, (vi) Tenant's
right to assign this Lease pursuant to Section 12.9 above, (vii) the provisions
of Section 25.2(B) or Section 25.2(D) above, (viii) any dispute as to whether a
request made by Landlord under Section 33.1(a)(7) is reasonably requested, (ix)
any dispute as to whether the Phase 1 Base Building Work or the Phase 2 Base
Building Work was "substantially completed", as provided in Section 36.5(A)
below, or (x) a claim by Tenant for any portion of Landlord's Contribution, as
provided in Section 36.9(B) below.
(B) It is of utmost importance to have such disputes settled
within approximately twenty-five (25) Business Days. Accordingly, the party
requesting Expedited Arbitration shall include in its notice to the other party
requesting Expedited Arbitration, the name and address of the person designed to
act as an arbitrator of its behalf. Within five (5) Business Days after the
other party receives such notice, such other party shall give notice to the
first party specifying the name and address of the person designated to act as
an arbitrator on its behalf. If the second party fails to notify the first party
of the appointment of its arbitrator within the aforesaid time period, then,
subject to the provisions of Section 34.2(E) below, the arbitrator chosen by the
first party shall make the determination unilaterally.
(C) Within five (5) Business Days after the designation of the
second arbitrator, the two arbitrators shall attempt to agree upon a third
arbitrator. If the two arbitrators are unable to agree upon such third
arbitrator within such 5-Business Day period, then either party, on behalf of
both and on notice to the other party, may request such appointment by the
American Arbitration Association (or any successor organization thereto) in
accordance with its commercial arbitration rules then prevailing or, if the
American Arbitration Association (or such successor organization) shall fail to
appoint said arbitrator within ten (10) Business Days after such request is
made, then either party may apply, on notice to the other, to the Superior Court
of the State of New Jersey (or any other court having jurisdiction and
exercising functions similar to those now exercised by said court) for the
appointment of such third arbitrator.
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(D) The three arbitrators shall conduct such hearings and
investigations as they deem appropriate, making their determination in writing
and giving notice to Landlord and Tenant of this determination as soon as
practicable, and, if possible within five (5) Business Days, but no later than
ten (10) Business Days, after the designation of the third arbitrator; the
concurrence of two of the three arbitrators or, in the event no two arbitrators
shall render a concurrent determination, then the determination of the third
arbitrator designated, shall be conclusive and binding upon the parties. Each
arbitrator chosen or appointed pursuant to this Section 34.2 shall be a
disinterested person having at least then (10) years real estate experience as
an arbitrator in the particular matter in dispute.
(E) If Tenant gives notice requesting Expedited Arbitration,
Tenant shall simultaneously serve a duplicate of the first notice on the
Mortgagee and each Lessor of which Tenant has received prior notice in writing.
If Landlord fails to appoint an arbitrator within the 5-Business Day period
described in Section 34.2(B) above, Tenant shall serve a second notice upon
Landlord (and any such Mortgagee and/or Lessor) and Landlord shall have two (2)
additional Business Days after its receipt of such second notice in which to so
appoint an arbitrator. If Landlord fails to so appoint an arbitrator within the
2-Business Day period described immediately above, then such Mortgagee or Lessor
which is not an Affiliate of Landlord shall have an additional period of three
(3) Business Days within which to appoint the second arbitrator, who shall
thereupon be recognized in all respects as if he had been appointed by Landlord.
Section 34.3 The arbitration described in Section 34.1 above and the
Expedited Arbitration described in Section 34.2 above shall be conducted, to the
extent consistent with such applicable Section, in the State of New Jersey, in
either Bergen, Hudson or Essex Counties, in accordance with the commercial
arbitration rules then prevailing of the American Arbitration Association (or
any successor organization thereto). Such decision shall be in writing and
counterpart copies thereof shall be delivered to each of the parties. In
rendering such decision and award, the arbitrator(s) shall not add to, subtract
from, or otherwise modify the provisions of this Lease.
Section 34.4 If for any reason whatsoever the written decision and (in
the case of an arbitration pursuant to Section 34.1 above, if applicable) the
award of the arbitrator(s) shall not be rendered within the time periods
specified in this Article 34, then at any time thereafter, either party may
apply to the Supreme Court of the State of New Jersey, or to any other court
having jurisdiction and exercising the functions similar to those now exercised
by such Court, by action, proceeding, or otherwise (but not by a new arbitration
proceeding) as may be proper to determine the question in dispute consistently
with the provisions of this Lease. Each party shall pay the fees and expenses of
the arbitrator appointed by or for such party. The fees and expenses of the
third arbitrator (if appointed), and all other expenses of the arbitration or
Expedited Arbitration, as the case may be, shall be borne by the parties
equally.
ARTICLE 35
INTENTIONALLY OMITTED
ARTICLE 36
LANDLORD'S PERFORMANCE OF THE LANDLORD'S WORK; TENANT'S
PERFORMANCE OF THE TENANT'S INITIAL ALTERATIONS AND LANDLORD'S
PAYMENT OF LANDLORD'S CONTRIBUTION TOWARDS SUCH TENANT WORK
Section 36.1 (A) Landlord and/or its contractor(s) shall perform, or
cause the performance of all work, and shall install or cause to be installed
all of the material, supplies, machinery, equipment and infra-structure required
for the construction and substantial completion of the Building in accordance
with those certain plans and specifications thereof (collectively, the "Building
Plans"), which Building Plans are also more particularly set forth on Schedule 1
annexed hereto and made a part hereof (the "Building Plans Work").
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(B) In addition, Landlord and/or its contractors shall perform
or cause the performance of, and shall install or cause the installation in the
Building and the Office Premises of that certain work, materials, equipment,
machinery and/or improvements more particularly set forth on Schedule 2 annexed
hereto and made a part hereof (the "Base Building Work").
(C) Further, Landlord and/or its contractors shall perform or
cause the performance of, and shall install or cause the installation in the
Ground Floor Premises of that certain work more particularly set forth on
Schedule 2-A annexed hereto and made a part hereof (the "Ground Floor Premises
Work").
(D) The Building Plans Work, the Base Building Work and the
Ground Floor Premises Work are collectively called the "Landlord's Work". Each
phase of the Base Building Work consisting of Phase 1 Base Building Work and
Phase 2 Base Building Work (as described in Schedule 2) is called a "Phase".
Section 36.2 (A) Provided this Lease shall then be in full force and
effect and no Event of Default pertaining to a monetary or material non-monetary
obligation of Tenant shall have occurred hereunder, Landlord agrees to commence,
or cause the commencement of the performance of the Landlord's Work promptly
after receipt by Landlord of all required permits and/or approvals from the
Buildings Department or any other applicable Legal Authority allowing for the
commencement and performance of the Landlord's Work (Landlord hereby agreeing to
use commercially reasonably efforts to obtain such permits and/or approvals) as
and when necessary. Landlord furthers agrees to expeditiously perform, or cause
the Landlord's Work to be expeditiously performed to "substantial completion" in
a good and worker-like manner in accordance with construction standards
appropriate to a first class office building in the Comparable Market, as soon
as is reasonably practicable after the occurrence of the aforementioned events,
subject, however, to Unavoidable Delays.
(B) (1) Landlord shall use commercially reasonable
efforts to perform and complete its Phase 2 Base Building Work so as not to
interfere with the Tenant's steady progress of completing Tenant's Initial
Alterations. Further, Landlord shall, subject to "Tenant's Delays" (as defined
below) and Unavoidable Delays, use commercially reasonable efforts to
substantially complete the Building Plans Work in accordance with the Building
Plans, but only in regard to the lobby area, exterior common areas (only to the
extent necessary to provide reasonable access to and from the Building) and all
Building Systems in operating condition ready to service the Office Premises,
and obtain a temporary Certificate of Occupancy for the common areas and core
areas of the Building as may be required in order for Tenant to obtain a
Certificate of Occupancy for the Premises and thereafter use and occupy the
Premises for the Permitted Use, by November 1, 1999.
(2) Landlord shall, subject to "Tenant's Delays" (as defined
below) and Unavoidable Delays, use commercially reasonable efforts to
"substantially complete" the Ground Floor Premises Work by no later than October
1, 1999 so as not to interfere with the Tenant's steady progress of completing
Tenant's Initial Alterations in the Ground Floor Premises.
(3) For purposes of this Section 36.2, "Tenant's
Delays" shall mean any circumstance or event caused by or resulting from the
actions, inactions or other conduct, whether negligent or intentional, of Tenant
and/or its contractors affecting the timely performance and timely "substantial
completion" by Landlord of the Ground Floor Premises Work, the Phase 2 Base
Building Work and the timely procurement of a temporary Certificate of Occupancy
for the common areas and core areas of the Building, as aforesaid.
Section 36.3 In connection with Landlord's performance of the
Landlord's Work, Tenant hereby acknowledges and agrees that:
(A) Landlord shall have the right to perform or cause the
performance of the
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Landlord's Work by itself or by any contractor(s) or subcontractor(s) selected
by Landlord (including, but not limited to, any affiliate(s) of Landlord);
(B) Landlord shall have the right to use, in the performance
of the Landlord's Work, facilities, materials, equipment and supplies of a
manufacturer, design, capacity, finish and color as provided or specified by the
Building Plans (but if not so provided or specified, then of the standard
adopted by Landlord for the Building), provided, however, if such facilities,
materials, equipment and supplies, as provided or as specified by the Building
Plans are not then available, Landlord shall have the right to substitute the
same with like type items and items of approximately the same cost as the
unavailable facility, material, equipment or supply (or, if not like type items
and items of approximately the same cost, then provided that Landlord shall have
first given notice of such substitution to Tenant and provided further that no
such substitution shall materially adversely affect the performance standards of
the base building systems, or materially adversely affect Tenant's use and
occupancy of the Premises for the Permitted Use); and
(C) Landlord shall be permitted to take all materials and
equipment into and upon the Premises that may be required for the performance of
any portion of the Landlord's Work, without the same constituting an eviction or
constructive eviction of Tenant, in whole or in part provided that, in the event
the Commencement Date has occurred and Tenant shall have taken possession of the
Premises, Landlord shall coordinate with Tenant and Tenant's contractors in
order to minimize, to the extent practicable, interference with or delay of
Tenant's Initial Alterations and, provided further that, if Tenant is then
operating its business in the Premises, Landlord shall also comply with the
provisions of Article 14 hereof.
Section 36.4 (A) Unless Landlord or its contractor(s) or
subcontractor(s) shall otherwise elect, Landlord and its contractor(s) shall be
required to perform all Landlord's Work only during Business Hours of Business
Days.
(B) To the extent practicable, and provided that such Tenant's
Initial Alterations do not interfere with or delay the performance by Landlord
or its contractor(s) of the Phase 1 Base Building Work or other work then being
performed by Landlord in the Premises or elsewhere in the Building, Landlord
shall permit Tenant to enter upon certain designated portions of the Office
Premises prior to the Commencement Date for purposes of delivering construction
materials pertaining to Tenant's Initial Alterations. Tenant acknowledges that
such construction materials shall be stored in the Office Premises at Tenant's
sole risk, and that Landlord shall have no responsibility for the protection or
safe-keeping of such construction materials.
Section 36.5 (A) At least ten (10) days prior to the date of
substantial completion of the Phase 1 Base Building Work and at least ten (10)
days prior to the date of substantial completion of the Phase 2 Base Building
Work, and at least ten (10) days prior to substantial completion of the Ground
Floor Premises Work, respectively, Landlord shall provide Tenant with a written
notice thereof (each, a "Substantial Completion of Work Notice"), each of which
Substantial Completion of Work Notices shall include the date (the "Substantial
Completion Date") on which Landlord shall have "substantially completed" the
Phase 1 Base Building Work, the Phase 2 Base Building Work, or the Ground Floor
Premises Work, respectively, as hereinafter provided. Within ten (10) days after
the date on which Tenant receives the Substantial Completion of Work Notice,
Tenant shall give written notice to Landlord (the "Tenant's Repair Notice")
setting forth in detail (1) the portions of the Phase 1 Base Building Work (with
respect to the Substantial Completion of Work Notice pertaining to the Phase 1
Base Building Work), or (2) the portions of the Phase 2 Base Building Work (with
respect to the Substantial Completion of Work Notice pertaining to the Phase 2
Base Building Work), or (3) the portions of the Ground Floor Premises Work (with
respect to the Substantial Completion of Work Notice pertaining to the Ground
Floor Premises Work) that Tenant believes have not been "substantially
completed". Any dispute as to whether the Phase 1 Base Building Work, the Phase
2 Base Building Work or the Ground Floor Premises Work was "substantially
completed" shall be resolved by Expedited Arbitration pursuant to Section 34.2
above. If it is resolved in such arbitration that the "substantial completion"
of the Phase 1 Base Building Work occurred on a date other than the Substantial
Completion Date fixed by Landlord in the Substantial Completion of Work Notice
for
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the Phase 1 Base Building Work, then the Commencement Date shall be adjusted
accordingly.
(B) (1) Landlord shall be deemed to have performed all of its
obligations with regard to substantial completion of the Base Building Work, as
of delivery of the Substantial Completion of Work Notice for the Phase 2 Base
Building Work, and Tenant's taking of possession of the Office Premises for its
use and/or occupancy at such time shall be deemed conclusive evidence as against
Tenant that, as of the Substantial Completion Date for the Phase 2 Base Building
Work, all such Base Building Work was substantially completed, subject to the
provisions of Section 36.5(A) above.
(2) Landlord shall be deemed to have performed all of
its obligations with regard to substantial completion of the Ground Floor
Premises Work, as of delivery of the Substantial Completion of Work Notice for
the Ground Floor Premises Work, and Tenant's taking of possession of the Ground
Floor Premises for its use and/or occupancy at such time shall be deemed
conclusive evidence as against Tenant that, as of the Substantial Completion
Date for the Ground Floor Premises Work, all such Ground Floor Premises Work was
substantially completed, subject to the provisions of Section 36.5(A) above.
(C) Landlord shall, with due diligence and dispatch and as
promptly as is reasonably practicable after receipt of the Tenant's Repair
Notice, repair or cause the repair of any incomplete or defective portion(s) of
the Landlord's Work and shall fully complete any incomplete or defective portion
of the Landlord's Work during Business Hours on Business Days and with
contractor(s) selected by Landlord. In no event shall Landlord be liable or
obligated to incur any overtime charges or overtime expenses regarding the
performance of such repair work and/or completion work; provided, however, that
if such defect in, or incomplete portion of the Landlord's Work unreasonably and
materially interferes with Tenant's normal use and occupancy of the Premises for
the Permitted Use, Landlord hereby agrees to perform, or cause the performance
of, such repair or completion work at times other than during Business Hours of
Business Days utilizing, if necessary, overtime services of Landlord's
contractor(s).
(D) Further, Landlord agrees to cure and/or remove of record
any violations filed against or existing as to the Landlord's Work (except,
however, for those which have been caused by Tenant's Work contractor(s)) if
Tenant is unable to obtain any permits or approvals for the performance of its
Initial Alterations or is otherwise unable to occupy the Premises for the
Permitted Use, and Tenant has so advised Landlord of this fact, in writing.
Section 36.6 Tenant hereby waives the provisions of any present or
future law statute or Legal Requirement which provide additional rights and
remedies Tenant hereby agreeing that the provisions of this Article 36 are in
lieu thereof and shall govern and control to the maximum extent legally
permissible.
Section 36.7 Landlord represents that the Building shall be constructed
in accordance with the terms and conditions of the Newport Development Project
Phase II Construction Activities Remedial Plan, dated August 1995, and shall be
maintained in accordance with the terms and conditions of the Newport
Development Project Phase III Post Construction Remedial Plan, dated July 1995,
both prepared for the Jersey City Redevelopment Agency by Dresdner Robin
Environmental Management, Inc., and as the same may further modified,
supplemented, amended or replaced (collectively, the "Newport Remedial Plan").
Tenant acknowledges that it has received a copy of the Newport Remedial Plan. In
addition, Landlord shall use commercially reasonable efforts to have the
Building comply with such "Y2K" requirements as are being, or prior to January
1, 2000 will be undertaken by owners of other first class buildings located in
the Comparable Market so as to avoid or minimize any material interruption of
Building services and Building Systems before, during and after the transition
to calendar year 2000.
Section 36.8 For purposes of this Lease, the terms "substantial
completion", "substantially complete" or "substantially completed" shall mean,
in the case of:
(A) the Building Plans Work, that the Building Plans Work, or
portions thereof
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shall have been completed substantially in accordance with the Building Plans
listed on Schedule 1, as and if required including the completion of the
construction of the Building's steel framework, facade, entryway, lobby area,
exterior common areas, and roof, the installation of all outside windows, the
installation of all Building Systems in operating condition ready to service the
Office Premises or Ground Floor Premises (as the case may be), except, however,
for (1) minor finishing, details of construction, decoration, mechanical
adjustment or work, touch-ups and adjustments which do not materially interfere
with Tenant's ability to enter the Building and utilize the lobby and elevators
for reasonable access, ingress and egress to and from the Premises, and (2) the
performance of any base premises or other improvement work in other tenants'
premises in the Building;
(B) each Phase of the Base Building Work, that such Phase of
the Base Building Work, or portions thereof, shall have been completed
substantially in accordance with Schedule 2, as and if required, except,
however, for minor finishing, details of construction, decoration, mechanical
adjustment or work, touch-ups and adjustments which do not materially interfere
with Tenant's ability to enter the Office Premises in order to (i) with respect
to the Phase 1 Base Building Work, commence the performance and/or to perform
any of Tenant's Initial Alterations in the Office Premises and (ii) with respect
to the Phase 2 Base Building Work, otherwise use and/or occupy the Office
Premises for the purposes as set forth in this Lease; and
(C) the Ground Floor Premises Work, that such Ground Floor
Premises Work, or portions thereof, shall have been completed substantially in
accordance with Schedule 2-A, as and if required, except, however, for minor
finishing, details of construction, decoration, mechanical adjustment or work,
touch-ups and adjustments which do not materially interfere with Tenant's
ability to enter the Ground Floor Premises in order to commence the performance
and/or to perform any of Tenant's Initial Alterations in the Ground Floor
Premises.
Section 36.9 (A) Subject to Landlord's performance of Landlord's Work,
Tenant shall accept possession of the Premises in the condition required to
exist on the Commencement Date (i.e., with the Phase 1 Base Building Work
substantially completed)"as is", excluding latent defects in the Premises of
which Tenant notifies Landlord in writing within twelve (12) months from the
date Tenant first occupies any portion of the Office Premises or Ground Floor
Premises, respectively, for the normal conduct of its business or, with respect
to latent defects in Building Systems not then seasonably operating, within
twelve (12) months following the initial operation of such Building System(s) in
the Office Premises or Ground Floor Premises, respectively, during which time
Tenant occupies all or a portion of the Office Premises or Ground Floor
Premises, respectively, for the normal conduct of its business, TIME BEING OF
THE ESSENCE AS TO BOTH TIME PERIODS; provided, however, nothing herein shall
excuse Landlord from its obligations to provide Building services and to make
repairs to the Building, as and to the extent specifically provided in this
Lease. Tenant hereby acknowledges and agrees that Landlord shall have no
responsibility or obligation to (1) perform or cause to be performed any work,
(2) supply any materials, (3) incur any expenses, (4) make any installations,
(5) assist Tenant in the preparation of Tenant's plans for the performance of
the Tenant's Initial Alterations (the "Final Tenant's Plans") or to assist
Tenant in filing the same with the Buildings Department and/or any other Legal
Authorities in order to obtain all other necessary approvals and/or permits
required by Tenant to prepare the Office Premises or Ground Floor Premises,
respectively, for Tenant's use and occupancy (but Landlord hereby agrees to
reasonably cooperate with Tenant in the signing of any necessary documents
required to obtain the same, provided that Landlord incurs no liability, fee,
cost or expense in so doing), and/or (6) to obtain any Buildings Department
and/or any other governmental approvals and/or permits in order to prepare the
Office Premises or Ground Floor Premises, respectively, for Tenant's use and
occupancy (but Landlord hereby agrees to reasonably cooperate with Tenant in the
signing of any necessary documents required to obtain the same, provided that
Landlord incurs no liability, fee, cost or expense in so doing), except,
however, Landlord shall perform and substantially complete the Landlord's Work,
as hereinabove provided, and shall make payment to Tenant of the "Landlord's
Contribution" (as defined in clause (B) below) as hereinafter provided.
(B) (1) Landlord hereby agrees to contribute an amount up to, but not
in
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excess of, the sum of $5,076,240 (the "Landlord's Contribution") towards the
actual cost of Tenant's renovation, alteration and improvement work in the
Office Premises comprising the Tenant's Initial Alterations, as shown on the
Final Tenant's Plans, and the cost of Tenant's installation in the Office
Premises, as part of such Tenant's Initial Alterations.
(2) All of Tenant's Initial Alterations shall be deemed to be
Alterations and shall be performed in accordance with all of the terms and
provisions of this Lease, including but not limited to, Article 4 of this Lease.
Tenant shall have the right to bid the performance of the Tenant's Initial
Alterations in accordance with Final Tenant's Plans, supervise the construction,
and select the contractor(s) and subcontractor(s) who will perform Tenant's
Initial Alterations. It is agreed and understood by Tenant that (a) Landlord's
contractor(s) shall have the right to bid the performance of the Tenant's
Initial Alterations, and (b) subject to Section 4.7, Tenant shall reimburse
Landlord for its reasonable expenses incurred in connection with the review and
approval of the Final Tenant's Plans.
(3) Landlord shall disburse Landlord's Contribution to Tenant,
or at Tenant's direction to Tenant's contractor(s), as the case may be, in
installments (to be paid by Landlord not more than once a month), such
installments to be paid, as aforesaid, within twenty (20) days following receipt
by Landlord of:
(a) a request for payment of Landlord's
Contribution from Tenant;
(b) Tenant's or its contractor(s)'
respective invoices for all work done and
all supplies furnished in connection with
such portion of Tenant's Initial Alterations
for which payment is being requested, or
receipted bills evidencing the expenditure
of monies equal to such portion of
Landlord's Contribution for which payment is
being requested;
(c) a detailed breakdown of the aggregate
cost of all of Tenant's Initial Alterations
completed to date;
(d) certificates (i) from Tenant's
architect, and (ii) if readily obtainable by
Tenant after the exercise of commercially
reasonable efforts, from contractor(s) who
have performed such portion of the Tenant's
Initial Alterations, stating that (X) such
portion of Tenant's Initial Alterations has
been substantially completed and (Y) such
portion of Tenant's Initial Alterations was
prosecuted substantially in accordance with
the Final Tenant's Plans; and
(e) lien waivers from each contractor(s) or
subcontractor(s) to the extent of the amount
to be paid to such parties, which waivers
may contain a condition that the
effectiveness of such waivers shall be
subject to the payment to the applicable
contractor(s) or subcontractor(s) of the
amount of the invoice accompanying such
waiver. Notwithstanding the foregoing, with
respect to subcontractors, lien waivers
shall only be required from each
subcontractor who performs work or delivers
material with respect to Tenant's Initial
Alterations costing in excess of $10,000.
(4) Upon the disbursement of the Landlord's
Contribution as aforesaid, Landlord shall have no further obligation or
liability whatsoever to Tenant for further disbursement of any portion of
Landlord's Contribution to Tenant. It is expressly understood and agreed that
Tenant shall complete, at its sole cost and expense, the Tenant's Initial
Alterations, whether or not Landlord's Contribution is sufficient to fund such
completion. If the actual cost of the Tenant's Initial Alterations shall be in
excess of the amount of Landlord's Contribution, then the entire amount of such
excess cost shall be paid solely by Tenant and Landlord shall be under no
obligation to pay any such excess.
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(5) Notwithstanding anything to the contrary
contained in this Lease, Tenant hereby agrees that all of Tenant's Initial
Alterations shall be deemed at all times during the Term to be the property of
Landlord and not of Tenant, and shall, subject to ordinary wear and tear and
damage by casualty, remain upon and be surrendered by Tenant with the Premises
upon the Fixed Expiration Date or earlier termination of this Lease, and that
Tenant shall not remove any of such Alterations from the Premises unless
Landlord shall permit or direct Tenant, in writing, to remove any of such Tenant
Initial Alterations, in accordance with Section 4.1 or Section 4.6 hereof.
(6) Within thirty (30) days after completion of
Tenant's Initial Alterations, subject to the last sentence of this Section
36.9(B)(6), Tenant shall deliver to Landlord general releases and waivers of
lien from all contractors, subcontractors and material men involved in the
performance of Tenant's Initial Alterations and the materials furnished in
connection therewith (unless the same were previously furnished pursuant to
subdivision (3) above), and a certificate from Tenant's independent licensed
architect certifying that in its opinion Tenant's Initial Alterations have been
performed in a good and worker-like manner and substantially completed in
accordance with the Final Tenant's Plans, accompanied by three (3) sets of
"as-built" plans for Tenant's Initial Alterations. In the event that Tenant
shall be unable to obtain a general release and/or waivers of lien because of a
dispute between Tenant and any of its contractors, subcontractors and/or
material men, and a lien shall be filed against the Premises or the Building,
such requirement shall be deferred, pending resolution of the dispute, and
Tenant shall bond the disputed amount as provided in Section 4.5.
(7) If Landlord does not pay any portion of
Landlord's Contribution when due, as set forth in this Section 36.9(B), subject
to Landlord's right to dispute Tenant's claim therefor as hereinafter provided,
Tenant may, at Tenant's option, apply any unpaid amount as a credit toward
Tenant's next due Fixed Rent obligations under this Lease. If Landlord disputes
any claim by Tenant for payment of any portion of Landlord's Contribution, such
dispute shall be resolved by Expedited Arbitration in accordance with the
provisions of Section 34.2 above and if such dispute is resolved in Tenant's
favor, Landlord shall within thirty (30) days thereafter pay to Tenant the
amount owed to Tenant as well as interest on such amount owed to Tenant at the
Interest Rate from the due date, as such amount and due date are determined by
the arbitrators. If such payment is not made to Tenant within such 30-day
period, Tenant may, at Tenant's option, apply any such unpaid amount as a credit
toward Tenant's next due Fixed Rent obligations under this Lease, provided,
however, if a Successor Landlord which is not a Landlord Related Entity is then
Landlord hereunder, Tenant shall request any unpaid amounts of Landlord's
Contribution and any future Landlord's Contribution from Successor Landlord and
if such Successor Landlord shall elect not to pay same, there shall thereupon
accrue to Tenant the right to apply such unpaid past or future amount as a
credit toward Fixed Rent, as aforesaid, but such right shall be limited to a
credit of not more than twenty (20%) percent of the amount of each monthly
installment of next due Fixed Rent hereunder until such unpaid amounts are
credited to Tenant in full.
ARTICLE 37
MISCELLANEOUS
Section 37.1 As a further inducement to Landlord to enter into this
Lease with Tenant, Tenant hereby agrees that with respect to the service of a
notice upon Tenant by Landlord in any proceeding commenced by Landlord against
Tenant under the property laws of the State of New Jersey, to the fullest extent
legally permissible, service of such notice in any such proceeding shall be
effective if made upon Tenant as provided in Article 26.
Section 37.2 This Lease shall be deemed to have been jointly prepared
by both of the parties hereto, and any ambiguities or uncertainties herein shall
not be construed for or against either of them. Further, Landlord and Tenant
agree that this Lease incorporates the full agreement between the parties and
that all prior drafts of this document irrelevant and superceded by this Lease.
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Section 37.3 All understandings 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, discharge or effect an
abandonment of this Lease in whole or in part, unless such executory agreement
is in writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
Section 37.4 The captions in this Lease are inserted only as a matter
of convenience and for reference and in no way define, limit or describe the
scope of this Lease nor the intent of any provision thereof.
Section 37.5 If Tenant's interest in this Lease shall be assigned to a
partnership (or to two (2) or more persons, individually and as co-partners of a
partnership) pursuant to Article 12 (any such partnership and such persons are
called, in this Section 37.5, the "Partnership Tenant"), the following
provisions shall apply to such Partnership Tenant: (A) the liability of each of
the parties comprising Partnership Tenant shall be joint and several; (B) each
of the parties comprising Partnership Tenant hereby consents in advance to, and
agrees to be bound by (1) any written instrument which may hereafter be
executed, changing, modifying or discharging this Lease, in whole or in part, or
surrendering all or any part of the Premises to Landlord, (2) any notices,
demands, requests or other communications which may hereafter be given by
Partnership Tenant or by any of the parties comprising Partnership Tenant, and
(3) any bills, statements, notices, demands, requests or other communications
given or rendered to Partnership Tenant or any of the parties comprising
Partnership Tenant; (C) if Partnership Tenant shall admit new partners, all of
such new partners shall, by their admission to Partnership Tenant, be deemed to
have assumed performance of all of the terms, covenants and conditions of this
Lease on Tenant's part to be observed and performed; and (D) Partnership Tenant
shall give prompt notice to Landlord of the admission of any such new partners,
and upon demand Landlord, shall cause each such new partner to execute and
deliver to Landlord an agreement, in form satisfactory to Landlord, wherein each
such new partner shall assume performance of all the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed (but
neither Landlord's failure to request any such agreement nor the failure of any
such new partner to execute or deliver any such agreement to Landlord shall
vitiate the provisions of subsections (A), (B) and (C) of this Section 37.5.
Section 37.6 In no event may Tenant record this Lease and any such
recordation shall be deemed an Event of Default hereunder. However, after the
Commencement Date either party may elect to record a memorandum in the form
attached hereto as Exhibit F, in which event the other party shall join in the
execution of such memorandum. Landlord shall prepare such memorandum. The
requesting party shall pay all costs of recordation. Upon expiration or early
termination of this Lease, Tenant shall execute a Termination of Lease in
recordable form, which obligation shall survive the expiration or termination of
this Lease.
Section 37.7 If any provisions of this Lease or portion of such
provision or the application thereof to any person or circumstance is for any
reason held invalid or unenforceable, the remainder of the Lease (including the
remainder of such provisions) and the application thereof to the persons or
circumstances shall not be affected thereby.
Section 37.8 Landlord and Tenant hereby agree that TIME SHALL BE DEEMED
OF THE ESSENCE as to the observance, performance and/or enforcement of the terms
and provisions of this Lease.
Section 37.9 This Lease shall be governed and construed in accordance
with the laws of the State of New Jersey, without giving effect to the
principles of conflicts of laws.
Section 37.10 (A) The person executing this Lease on behalf of Landlord
hereby covenants, represents and warrants that Landlord is duly incorporated or
duly qualified as a limited liability company and is authorized to do business
in the State of New Jersey, and that
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such person executing this Lease on behalf of Landlord is a member of such
limited liability company Landlord, and that he is duly authorized to execute,
acknowledge and deliver this Lease to Tenant.
(B) If Tenant is a corporation, each person executing this
Lease on behalf of Tenant hereby covenants, represents and warrants that Tenant
is a duly incorporated or duly qualified corporation and is authorized to do
business in the State of New Jersey, and that each person executing this Lease
on behalf of Tenant is an officer of such corporate Tenant, and that he is duly
authorized to execute, acknowledge and deliver this Lease to Landlord. If Tenant
is a partnership, the person executing this Lease on behalf of Tenant hereby
covenants, represents and warrants that Tenant is a duly qualified partnership
and is authorized to do business in the State of New Jersey, and such person
executing this Lease on behalf of Tenant is a general partner of such
partnership Tenant, authorized to execute, acknowledge and deliver this Lease to
Landlord. If Tenant is a limited liability company, the person executing this
Lease on behalf of Tenant hereby covenants, represents and warrants that Tenant
is duly incorporated or duly qualified limited liability company and is
authorized to do business in the State of New Jersey, and that such person
executing this Lease on behalf of Tenant is a member of such limited liability
company Tenant, and that he is duly authorized to execute, acknowledge and
deliver this Lease to Landlord
Section 37.11 This Lease is offered for signature by Tenant and it is
understood that this Lease shall not be binding upon either party unless and
until both parties shall have executed and exchanged a fully executed copy of
this Lease.
Section 37.12 The covenants, conditions and agreements contained in
this Lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this Lease, their assigns.
Section 37.13 Landlord and Tenant each agree to keep the business
provisions of this Lease, and all negotiations with respect hereto,
confidential. Without prior written consent of the other , neither Landlord nor
Tenant , nor any of their respective officers, shareholders, partners,
directors, employees or representatives, shall disclose, divulge, communicate or
otherwise reveal to any person, the business provisions (including the rental
and other financial provisions) of this Lease or of any other document or
agreement executed or delivered in connection with this Lease, except (a) in
connection with any action or proceeding involving this Lease, (b) to the extent
legally compelled (by deposition, interrogatory, request for documents,
subpoena, civil investigative demand or similar process) to disclose such
provisions, (c) as to the disclosure, divulgence, communication or other
revelation to attorneys, accountants or other professional consultants or
advisors, (d) to the extent required by securities laws or compliance provisions
of other Legal Requirements or the compliance provisions of any Legal
Authorities, or any securities, bond or commodities exchange, (e) to a
prospective assignee of Tenant's interest in this Lease or a prospective
subtenant of all or any part of the Premises, (e) to a prospective purchaser of
the Property or prospective Mortgagee or Lessor, (f) to a prospective purchaser
of or Mortgage as to, (x) any equity interest of Landlord or Landlord's Related
Entities or Tenant or Related Entities of Tenant, or (y) any assets of Landlord
or Landlord's Related Entities or of Tenant or Related Entities of Tenant, or
(g) otherwise supplied or distributed by Landlord or Tenant in the ordinary
course of their respective businesses.
ARTICLE 38
TENANT'S NON-EXCLUSIVE RIGHT TO INSTALL AN ANTENNA
ON A PORTION OF THE BUILDING'S ROOF AND TO USE A PORTION
OF THE OUTSIDE OF THE BUILDING FOR THE INSTALLATION OF AN
EMERGENCY POWER SUPPLY WITH ASSOCIATED EQUIPMENT FOR THE
SUPPLY OF EMERGENCY POWER "EPS" TO THE PREMISES AND TO INSTALL
A SUPPLEMENTAL COOLING TOWER ON THE BUILDING'S ROOF
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Section 38.1 (A) Tenant shall have the non-exclusive right to install
an "Antenna" (as such term is defined in Exhibit G annexed hereto) on the roof
of the Building and to run necessary cables and wiring from the Premises to the
Antenna through space (to be provided by Landlord at Landlord's direction and
discretion) within a vertical shaft, subject to Legal Requirements, for use in
connection with Tenant's business operations to be conducted in the Premises as
part of the Permitted Uses (the "Antenna Installation"), provided that, and so
long as (1) Tenant shall then be using the Premises for the Permitted Use, and
(2) where the antenna is a dish antenna, Tenant shall pay Landlord, as
Additional Rent, an annual license fee in the amount of $3,000 per foot of the
diameter of such dish, in equal monthly installments of $250 per diameter foot,
at the time of Tenant's payment to Landlord of Fixed Rent hereunder, and (3)
where the antenna is a "whip" antenna or other small, similar antenna, an annual
license fee of One Dollar ($1.00) per annum payable on the Rent Commencement
Date and on each anniversary thereof, and (4) the antenna is used exclusively by
Tenant while in actual, physical occupancy of the Office Premises for the normal
conduct of its business.
(B) Tenant shall have the non-exclusive right to install an
emergency power supply, together with associated equipment therefor, required
for the supply of emergency power ("EPS") to the Premises (collectively, the
"EPS Equipment", as such term is more fully described on Exhibit G-1 annexed
hereto and made a part hereof) in the general location outside of the Building
as more particularly shown by the designation "Tenant EPS Equipment" on Exhibit
A-2 annexed hereto and made a part hereof, consisting of an area not to exceed
the size that is necessary to install an EPS of 1500 kW provided that, and so
long as (a) Tenant shall then be using the Premises for the Permitted Use, and
(b) Tenant shall pay Landlord, as Additional Rent, an annual license fee in the
amount of One Dollar ($1.00) per annum payable on the Rent Commencement Date and
on each anniversary thereof.. The location of the EPS Equipment is called the
"EPS Location". Tenant shall have the right to connect the EPS Equipment to
Landlord's cooling tower and auxiliary equipment located on the roof of the
Building so that Tenant shall be able to provide to air conditioning to the
Premises in the event that a power failure occurs.
(C) Tenant shall have the non-exclusive right to install a
"Supplemental Cooling Tower" (as such term is defined in Exhibit G-2 annexed
hereto) on the roof of the Building and to run necessary pipes and wiring from
the Premises to the Cooling Tower through space (to be provided by Landlord at
Landlord's direction and discretion) within a vertical shaft, subject to Legal
Requirements, for use in connection with Tenant's business operations to be
conducted in the Premises as part of the Permitted Use (the "Cooling Tower
Installation") provided that, and so long as (1) Tenant shall then be using the
Premises for the Permitted Use, and (2) Tenant shall pay Landlord, Additional
Rent, an annual license fee of One Dollar ($1.00) per annum payable on the Rent
Commencement Date and on each anniversary thereof.
Section 38.2 (A) The specific terms and conditions governing the
installation and operation of the Antenna Installation are set forth on Exhibit
G annexed hereto and hereby made a part hereof. Other than as set forth on
Exhibit G, the Antenna Installation shall be governed by all of the terms,
provisions and conditions of this Lease.
(B) The specific terms and conditions governing the use of
the EPS Location are set forth on Exhibit G-1 annexed hereto and hereby made a
part hereof. Other than as set forth on Exhibit G-1, the use of the EPS Location
shall be governed by all of the terms, provisions and conditions of this Lease.
(C) The specific terms and conditions governing the
installation and operation of the Cooling Tower Installation are set forth on
Exhibit G-2 annexed hereto and hereby made a part hereof. Other than as set
forth on Exhibit G-2, the Cooling Tower Installation shall be governed by all of
the terms, provisions and conditions of this Lease.
Section 38.3 All installations permitted by this Article 38 shall
nevertheless be subject to the terms and conditions of Article 4 hereof.
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ARTICLE 39
TENANT'S OPTION TO LEASE ADDITIONAL AVAILABLE SPACE IN THE
BUILDING
Section 39.1 (A) Provided that Tenant is the Tenant named herein or a
Related Tenant (it being agreed and understood that the rights set forth in this
Section 39.1 have been granted only to Tenant named herein and/or a Related
Tenant for its sole and exclusive benefit, for so long as such entity is the
holder of Tenant's estate and interest granted by this Lease, and that the
rights set forth in this Section 39.1 may not be transferred or conveyed to any
other person or entity), this Lease is then in full force and effect and no
Event of Default concerning a monetary or material non-monetary obligation of
Tenant hereunder shall have occurred and be continuing either (1) on the date
Tenant gives "Tenant's Offer Notice" or (2) on the "Availability Date" (as such
terms are hereinafter defined), at any time during the Term that space in the
Building above the ground floor of the Building (the "Offer Space") becomes
available (but not prior to its initial leasing by a tenant of space now vacant
in the Building) for further leasing by Landlord and occupancy by a tenant,
whether by reason of the normal expiration of the term of a lease, or by an
earlier termination of a lease by reason of recapture, dispossession or
otherwise, Landlord shall, subject to the terms and provisions of Section 39.3
below, notify Tenant (the "Landlord's Offer Notice") that the Offer Space will
be available for leasing upon all of the same terms, covenants and conditions
set forth in Section 39.2 below. With respect to Offer Space which will become
available by reason of the normal expiration of the term of a lease, Landlord
shall deliver the Landlord's Offer Notice to Tenant not more than eighteen (18)
months and not less than nine (9) months prior to such lease expiration date.
With respect to Offer Space which will become available by reason of the earlier
termination of the term of a lease, Landlord shall deliver the Landlord's Offer
Notice to Tenant reasonably promptly following the date Landlord first knows
that such Offer Space will become available prior to the normal expiration of
the term of the lease therefor.
(B) The Landlord's Offer Notice shall specify: (1) the
expected date of availability of the Offer Space (the "Availability Date"); (2)
the floor of the Building on which the Offer Space is located; (3) the amount of
square feet of rentable area contained in the Offer Space and a floor plan
marked to show the location of the Offer Space (the "Offer Space Area"); (4) the
percentage(s) which shall be the equivalent of Tenant's Operating Share for
payment of Operating Costs and Tenant's Tax Share for payment of Tax escalation
payments with respect to the Offer Space (the "Offer Space Shares"); (5) the
approximate amount of the Base Tax Amount for purposes of calculating increases
in Taxes and the approximate amount of the Base Operating Costs Amount for
purposes of calculating increases in Operating Costs, respectively, for the
Offer Space; and (6) the amount of the Fixed Rent for the Offer Space as
determined by Landlord as provided in Section 39.2(B) below.
(C) If Tenant desires to lease the Offer Space, Tenant shall
so notify Landlord in writing ("Tenant's Offer Notice") within (1) five (5)
Business Days after receipt by Tenant of Landlord's Offer Notice if the Offer
Space will become available by reason of a recapture right Landlord may have
(however, if Landlord has twenty (20) days or more within which to exercise any
such recapture right, then such five (5) Business Days shall be extended to ten
(10) Business Days), (2) thirty (30) days after receipt by Tenant of Landlord's
Offer Notice if the Offer Space will become available by reason of a tenant's
bankruptcy, or (3) forty-five (45) days after receipt by Tenant of Landlord's
Offer Notice if the Offer Space will become available for any other reason, TIME
BEING OF THE ESSENCE AS TO ALL TIME PERIODS with respect to the giving of
Tenant's Offer Notice pursuant to "(1)", "(2)" or "(3)" above, as applicable. If
Landlord's Offer Notice does not specify Tenant's response period in accordance
with the foregoing, and state the reason therefor, the time period in clause
"(3)" shall be deemed applicable and control in lieu of the other two time
periods above. If Tenant shall fail to timely deliver Tenant's Notice, Tenant's
option under this Article 39 with respect to the Offer Space in question shall
be deemed to be waived and of no further force and effect, regardless of whether
Landlord shall have taken any action to lease the Offer Space in question
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in reliance upon the fact that such notice was not given; provided, however,
once Landlord has leased the Offer Space in question to a third party and the
Offer Space in question again becomes available for leasing as aforesaid, the
provisions of this Section 39.1 shall again be applicable to the Offer Space in
question.
Section 39.2 (A) If Tenant timely delivers the Tenant's Offer Notice as
aforesaid, with respect to the Offer Space, then on the Availability Date or, if
later, the date possession of the Offer Space is delivered to Tenant in the
condition required pursuant to this Article 39: (1) the Offer Space shall be
added to and deemed a part of the Premises upon all of the terms and conditions
of this Lease, except as specifically set forth in this Article 39; (2) the
Offer Space shall be delivered in its then "as is" vacant condition, and
Landlord shall not be obligated to perform any work or make any installations
with respect thereto; (3) Tenant's Tax Share for the Offer Space and Tenant's
Operating Share for the Offer Space shall be the Offer Space Shares set forth in
Landlord's Offer Notice; (4) the Fixed Rent shall be increased annually by the
applicable amount determined pursuant to the provisions of Section 39.2(B)
hereof; (5) the Base Operating Costs Amount with respect to the Offer Space
shall be the Operating Expenses for the calendar year in which the Availability
Date occurs; (6) the Base Tax Amount with respect to the Offer Space shall be
the Taxes for the Tax Year in which the Availability Date occurs; and (7)
Tenant's Parking Spaces shall be increased by the number of parking spaces, if
any, surrendered by the tenant or occupant vacating the Offer Space.
(B) The Fixed Rent for the Offer Space (on a per rentable
square foot basis) shall be an amount equal to the greater of (x) ninety-five
percent (95%) of Fair Market Rent for the Offer Space (on a per rentable square
foot basis) as of the Availability Date, as "Fair Market Rent" is determined in
accordance with the terms and conditions of Section 2.7 of this Lease, or (y)
the Fixed Rent and Additional Charges (on a per square foot basis) payable by
Tenant for the Premises immediately prior to the Availability Date.
Section 39.3 (A) In the event the Offer Space consists of two (2) full
floors or less in the Building, the Offer Space shall be included within the
then Premises demised under this Lease for the then remaining Term of this
Lease.
(B) In the event Offer Space in question, together with all
Offer Spaces previously taken by Tenant under this Article 39 and included
within the Premises , consists of more than two (2) full floors in the Building,
such Offer Space shall be included within the then Premises for (1) if the then
remaining Term of this Lease, at the time of such inclusion of the Offer Space
within the Premises is more than ten (10) years, then remaining Term of this
Lease, or (2) if the then remaining Term of this Lease, at the time of such
inclusion of the Offer Space within the Premises, is less than ten (10) years,
Tenant shall be deemed to have exercised and shall exercise such number of its
five (5) year Renewal Option(s), as provided in Section 1.3 of this Lease, in
whole five (5) year increments, in order to extend the then existing Term of
this Lease beyond the then-remaining Term of this Lease so that the Term of this
Lease, as to the then Premises and the Offer Space (the "Premises Expiration
Term") shall equal (i) the then remaining Term of this Lease, at the time of
such inclusion of the Offer Space within the Premises, plus (ii) such number of
Tenant's five (5) year Renewal Option(s), in whole five (5) year increments, as
shall cause the Term of this Lease, at the time of such inclusion of the Offer
Space within the Premises to equal at least ten (10) years; it being further
agreed and understood by Tenant that, notwithstanding anything to the contrary
contained in Section 2.7 of this Lease, (a) with respect to the Offer Space, the
Fixed Rent therefor (as the Rental Value) for and during the Premises Extension
Term, shall be established in accordance with the procedures and terms and
conditions of said Section 2.7 as of the Availability Date, notwithstanding that
the payment of such Fixed Rent (as the Rental Value) shall commence on the first
day of the Premises Extension Term (i.e., the date possession of the Offer Space
is delivered to Tenant in the condition required pursuant to this Article 39,
which date may be later than the Availability Date), and (b) with respect to the
then Premises (i.e., the Premises excluding the Offer Space), during the
then-remaining Term of this Lease referred to in clause "(i)" above, the Fixed
Rent shall be the Fixed Rent set forth in this Lease, as if the option to lease
the Offer Space were never exercised by Tenant, and
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thereafter, for the remainder of the Premises Expiration Term, the Fixed Rent
(as the Rental Value) shall be established in accordance with the procedures and
terms and conditions of said Section 2.7 as of the first day following the
expiration of the then-remaining Term of this Lease referred to in clause "(i)"
above.
(C) The addition of the Offer Space to and the inclusion of
the Offer Space within the Premises shall, at Landlord's option, be effectuated,
at Landlord's option, either by an amendment to this Lease or by a new lease for
the Offer Space in form and substance substantially identical to this Lease
without adversely affecting any of the rights Tenant would have had under this
Lease if this Lease had been so amended (the "New Lease"), with a provision in
the New Lease which cross-defaults such New Lease with this Lease.
Section 39.4 Landlord shall use commercially reasonable efforts to
dispossess any tenant holding over or otherwise retaining possession of the
Offer Space on or after the Availability Date, including the institution of
summary dispossess proceedings. If Landlord shall fail for any reason to deliver
possession of the Offer Space on the Availability Date, (A) Tenant waives any
right to rescind this Lease under any statute, (B) Landlord shall not be subject
to any liability for failure to give possession of said date, (C) Tenant waives
the right to recover any damages which may result from the failure of Landlord
to deliver possession of the Offer Space on the Availability Date, (D) and the
Availability Date shall be postponed one (1) day for each day Landlord shall
fail to deliver possession of the Offer Space after the Availability Date.
Section 39.5 If and to the extent the lease or occupancy agreement (as
applicable) between Landlord and the tenant or occupant vacating the Offer Space
requires such tenant or occupant , as the case may be, to remove or restore any
alterations or installations from the Offer Space upon the expiration or earlier
termination of such lease or occupancy agreement, as the case may be, then
Landlord, at Tenant's request given to Landlord at least thirty (30) days prior
to the Availability Date, shall enforce such removal or restoration requirement,
provided, however, that Landlord shall not be obligated by reason of this
Section 39.5 or otherwise to commence any litigation or incur any material
expenses of any kind in so enforcing such removal or restoration requirement.
ARTICLE 40
TENANT'S OBLIGATION TO SURRENDER A FLOOR OF THE PREMISES
Section 40.1 Tenant has been advised by Landlord that pursuant to the
lease agreement dated December 21, 1998, between Landlord and U.S. Trust Company
of New Jersey (the "U.S. Trust Lease"), U.S. Trust Company of New Jersey (and
its permitted successors and assigns) has an option to lease one (1) additional
floor in the Building above the ground floor of the Building, which option may
be exercised between the ninth (9th) and eleventh (11th) lease years under the
U.S. Trust Lease. Within ten (10) days after Landlord receives notice (the "U.S.
Trust Statement of Intent") from the U. S. Trust Company of New Jersey (or its
permitted successor or assign) of its desire to Lease one (1) additional floor
in the Building above the ground floor of the Building (which notice Landlord
has advised Tenant must be delivered to Landlord by September 30, 2007),
Landlord shall give Tenant a copy of such U.S. Trust Statement of Intent.
Thereafter, at any time up to forty-five (45) days prior to the latest date
under the U.S. Trust Lease for notifying U.S. Trust of the identity and
availability date of the additional floor in the Building to be leased to U.S.
Trust (which date Landlord has advised Tenant is no more than eighteen (18) nor
less than twelve (12) months prior to the date such additional floor is
available for lease to U.S. Trust), Landlord shall give Tenant notice (the
"Potential Surrender Notice") designating the date that Tenant may be required
to vacate and surrender one (1) floor of the Premises (the "Surrendered Space"),
such date (the "Surrender Date") to be no earlier than thirteen (13) months and
fifteen (15) days and no later than nineteen (19) months and fifteen (15) days
from the date the Potential Surrender Notice is given to Tenant. Within thirty
(30) days after Landlord gives Tenant the Potential Surrender Notice, TIME BEING
DEEMED OF THE ESSENCE, Tenant must provide Landlord with written notice
("Tenant's Election Notice") identifying the floor of
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the Original Premises Tenant elects to surrender (which may be any floor of the
Original Premises other than the 14th and 15th floors). Within five (5) days
after receipt of Tenant's Election Notice, Landlord shall give U.S. Trust a
written notice (the "U.S. Trust Offer Notice") designating the Surrendered Space
and the Surrender Date, a copy of which notice shall also be provided to Tenant.
If Tenant fails to designate the Surrendered Space before or within the thirty
(30) day period for the giving of Tenant's Election Notice as set forth above,
then Landlord shall have the sole right to designate the Surrendered Space. If
U.S. Trust fails to timely exercise its right to lease the Surrendered Space
under the U.S. Trust Lease or rejects the Surrendered Space (Landlord having
advised Tenant that U.S. Trust has thirty (30) days from the giving of the U.S.
Trust Offer Notice to accept the Surrendered Space), then neither Landlord or
Tenant shall have any further obligations under this Article 40 and Tenant shall
not be obligated to surrender the Surrendered Space. Within ten (10) days after
the earlier to occur of (i) receipt of notice from U.S. Trust either accepting
or rejecting the Surrendered Space and (ii) the expiration of the time period in
the U.S. Trust Lease for U.S. Trust to elect to lease the Surrendered Space,
Landlord shall notify Tenant of whether U.S. Trust will lease the Surrendered
Space (the "Final Surrender Notice"). If U.S. Trust has elected to lease the
Surrender Space, then Tenant shall be obligated to surrender the Surrendered
Space on the Surrender Date, TIME BEING DEEMED OF THE ESSENCE.
Section 40.2 If Landlord requires Tenant to surrender the Surrendered
Space, then (1) this Lease shall end and expire with respect to the Surrendered
Space on the Surrender Date as if such date were the Fixed Expiration Date of
this Lease with respect to the Surrendered Space, (2) Tenant shall surrender the
Surrendered Space to Landlord on or prior to the Surrender Date, in the same
manner and condition as is required by this Lease, (3) from and after the
Surrender Date any Fixed Rent and Additional Rent paid to such date, shall be
apportioned and adjusted if required, and Tenant's prospective Rental
obligations hereunder which are based upon square footage (including, without
limitation, Fixed Rent, Tenant's Tax Share and Tenant's Operating Share) shall
be proportionately reduced, (4) Tenant shall surrender a share of the Parking
Spaces made available to Tenant pursuant to Article 15 equal to one (1) parking
space per 1,000 rentable square feet of the Surrendered Space, and (5) Landlord
shall make, at Landlord's sole cost and expense, such alterations as may be
required or deemed necessary by Landlord to physically separate the Surrendered
Space from the balance of the Premises.
ARTICLE 41
GUARANTY OF LEASE
The effectiveness of this Lease is expressly conditioned upon
Landlord's receipt of an original counterpart of a guaranty in form and
substance identical to the guaranty of lease annexed hereto as Exhibit K and
made a part hereof (the "Guaranty of Lease"), properly executed by authorized
officials of PAINEWEBBER GROUP, INC. (the "Guarantor"), in favor of Landlord and
guaranteeing the due observance and performance of Tenant's obligations under
this Lease.
ARTICLE 42
LANDLORD'S PARTIAL REIMBURSEMENT OF TENANT'S MOVE-IN
COSTS FOR THE PREMISES
Section 42.1 Provided this Lease is then in full force and effect and
Tenant hereunder is Tenant or a Permitted Tenant, Landlord agrees to pay Tenant
by no later than December 1, 2000 the amount of $985,000 representing Landlord's
partial reimbursement to Tenant for its move-in costs of the Premises (the
"Move-In Costs Payment").
Section 42.2 If Landlord does not pay any portion of The Move-In Costs
Payment when due, as set forth in Section 42.1, Tenant may, at Tenant's option,
apply any unpaid amount as a credit toward Tenant's next due Fixed Rent
obligations under this Lease until
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fully repaid, provided, however, if a Successor Landlord which is not a Landlord
Related Entity is then Landlord hereunder, Tenant shall request any unpaid
amount of the Move-In Costs Payment, or any future payment thereof, from
Successor Landlord and if such Successor Landlord shall elect not to pay same,
there shall thereupon accrue to Tenant the right to apply such unpaid past or
future amounts as a credit toward Fixed Rent, as aforesaid, but such right shall
be limited to a credit of not more than twenty (20%) percent of the amount of
each monthly installment of next due Fixed Rent hereunder until such unpaid
amounts are credited to Tenant in full.
Section 42.3. Notwithstanding anything to the contrary contained in
this Lease, the term "Tenant" when used in this Article 42 shall be deemed to
refer to and mean only Tenant and any Permitted Tenant, and shall not be deemed
to include any assignee (whether permitted or otherwise) or other
successor-in-interest (whether immediate or remote) of the Permitted Tenant; it
being agreed and understood that only Tenant and a Permitted Tenant shall be
entitled to receive the Move-In Costs Payment.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have respectively
signed and sealed this Lease as of the day and year first above written.
Witness for Landlord: LANDLORD:
NEWPORT OFFICE CENTER III COMPANY,
LLC
a New Jersey limited liability company
BY: N.O.C. III REALTY CORP., a New Jersey
corporation, a member
/s/ Paul P. Bozzo By: /s/ Richard S. LeFrak
- ----------------------- -------------------------
Paul P. Bozzo Richard S. LeFrak
Assistant Secretary President
TENANT:
Witness/Attest for Tenant: PAINEWEBBER INCORPORATED
a Delaware corporation
/s/ Charles R. Borrok By: /s/ Brian J. Dugan
- ----------------------- -----------------------------
Name: Brian J. Dugan
Title: SR. VICE PRES.
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E X H I B I T A
FLOOR PLAN OF THE GROUND FLOOR PREMISES
[GRAPHIC OF BLUE PRINT]
A-1
<PAGE> 134
E X H I B I T A
FLOOR PLANS OF THE OFFICE FLOOR PREMISES
[GRAPHIC OF BLUE PRINT]
A-2
<PAGE> 135
E X H I B I T A
FLOOR PLANS OF THE OFFICE FLOOR PREMISES
[GRAPHIC OF BLUE PRINT]
A-3
<PAGE> 136
E X H I B I T A
FLOOR PLANS OF THE OFFICE FLOOR PREMISES
[GRAPHIC OF BLUE PRINT]
A-4
<PAGE> 137
E X H I B I T A-1
NEWPORT SITE PLAN
[GRAPHIC OF BLUE PRINT]
A-1-1
<PAGE> 138
EXHIBIT A-2
TENANT EPS EQUIPMENT LOCATION ON THE OUTSIDE OF THE BUILDING
[GRAPHIC OF BLUE PRINT]
A-2-1
<PAGE> 139
EXHIBIT A-2
TENANT EPS EQUIPMENT LOCATION ON THE OUTSIDE OF THE BUILDING
[GRAPHIC OF BLUE PRINT]
A-2-2
<PAGE> 140
EXHIBIT A-3
LOCATION OF TENANT'S SUPPLEMENTAL COOLING TOWER ON THE
BUILDING'S ROOF
[GRAPHIC OF BLUE PRINT]
A-3-1
<PAGE> 141
E X H I B I T B
FIXED RENT SCHEDULE
(1) Fixed Rent for the Initial Term is $7,730,240.00 per annum, payable in equal
monthly installments of $644,186.67, in accordance with the terms and provisions
of Article 2 of this Lease.
(2) Fixed Rent for each Renewal Term shall be as set forth and determined in
accordance with the terms and provisions of Article 2 of this Lease.
B-1
<PAGE> 142
E X H I B I T C
CLEANING SPECIFICATIONS AND SCHEDULE
CLEANING SPECIFICATIONS
FOR TENANT OFFICE AREAS
1. NIGHTLY
(1) Empty ashtrays and damp wipe clean. Screen all sand urns, if
applicable.
(2) Empty all waste and recycling containers and transport trash
and recycled materials to collection areas; Tenant must comply
with Building recycling procedures including insuring the
deposit of all waste and recycled materials in properly marked
and designated receptacles.
(3) Wash and sanitize all waste and recycling containers, as
required but at a minimum, on a weekly basis.
(4) Wipe wood, metal, glass and plastic laminated office furniture
surfaces clean of dust, dirt and smudges, including counters,
railings, exposed tops of files, bookcases, shelves, sills,
ledges and other low items; paper and folders on desk areas
will not be removed or disturbed.
(5) Wash, clean and sanitize all water fountains and/or water
coolers.
(6) Vacuum clean all carpeted areas.
(7) Sweep title, raised flooring, and other floor surfaces, and
remove any black heal marks.
(8) Remove fingerprints, dirt, smudges, graffiti, and like items
of grime from all glass doors, frames, glass partitions, light
switch covers, walls, elevator call buttons, elevator door
jams and doors.
(9) Wipe telephone mouthpiece and receiver with disinfectant.
(10) Remove all gum and foreign matter from all floors, walls and
partitions.
(11) Return carpet/mop floor in all elevator lobby areas and spot
clean, as necessary.
2. WEEKLY
(1) Dust all high areas, including but not limited to, picture
frames, charts, graphs and similar wall hangings not reached
during nightly cleaning.
(2) Dust inside of all door jams.
(3) Vacuum available open floor area and under desks.
(4) Dust chair legs and bases of all furniture, door frames, and
like items.
(5) Dust and clean fire extinguishers and thermostats, as
required.
(6) Dust and clean all vinyl bases.
(7) Wipe and clean all metal, polished chrome and bright work.
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(8) Clean, spray and buff all Building-standard resilient and or
composite title floors.
(9) Machine buff wood, terrazzo or other stone floors using
manufacturer's recommended procedures.
3. MONTHLY
(1) Clean and polish conference tables.
(2) Thoroughly dust all Building-installed blinds.
(3) Vacuum all fabric wall and/or partition covering.
(4) Clean and vacuum heating, ventilating and air-conditioning
supply and return grills and surrounding ceiling tiles.
(5) Strip and wax all VCT tile and dress with non-skid sealer for
shine.
4. QUARTERLY
(1) Damp wire the exterior of all lighting fixtures.
(2) Perform high dusting (i.e., door sash, tops of partitions,
shelving ledges, etc., over seventy inches (70").
(3) Power scrub or otherwise recondition all hard covered flooring
to provide a level of appearance equivalent to a completely
refinished floor.
(4) Wash and clean the inside surfaces of all exterior Building
windows, including all adjacent metal surfaces, which shall be
wiped clean during the window cleaning operation.
5. ANNUALLY
(1) Thoroughly wash/clean all Building-installed blinds.
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CLEANING SPECIFICATIONS
ALL PUBLIC RESTROOMS
1. DAILY
(1) Scour, wash and disinfect all toilet seats (both sides),
basins, bowls, urinals (including underside of fixtures) and
title walls near urinals and sinks throughout. Wipe clean all
chrome plated plumbing fixtures, including flush rings, drains
and overflow outlets. No abrasive or caustic chemicals shall
be used; all finishes shall be shining and unstreaked.
(2) Replenish toilet supplies in containers, including paper
towels, toilet paper, hand soap, sanitary containers and wipe
clean all such containers. Materials/supplies to be approved
by Landlord's managing agent or property manger and supplied
by contractor.
(3) Clean and polish all mirrors, powder shelves, glass, bright
work and enamel surfaces.
(4) Sweep and wet mop floors using disinfectant floor soap using.
Clean solution.
(5) Spot clean doors, partitions and walls.
(6) Empty all sanitary disposal receptacles and clean the same
inside and out with approved disinfect and replace liners of
all such receptacles.
(7) Wipe clean all doors, switch plates, kick plates, handles..
(8) Remove all graffiti from any surface or report same to
supervisor if special attention is necessary.
(9) Remove finger marks from painted surfaces.
(10) Report any mechanical malfunction to supervisor.
(11) Clean all thresholds.
(12) Pour nightly mop water with disinfectant down floor drains.
2. WEEKLY
(1) Clean air supply and exhaust grills.
(2) Machine scrub floors as required with approved germicidal
detergent solution.
(3) Wash all restroom partitions and doors streak free.
(4) Dust and clean light fixtures.
3. MONTHLY
(1) Wash all walls and washable ceilings streak free.
(2) Wash interior and exterior of all waste containers, leaving no
streaks or smudges.
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E X H I B I T D
VENTILATED/COOLED AIR PERFORMANCE AND DESIGN CRITERIA
A. DESIGN CRITERIA
1. The Systems described in Article 24 of this Lease shall
provide to the Office Premises conditioned air capable during
Business Hours of Business Days of satisfying the following
conditions and criteria, in addition to the solar and
transmission heat gains and losses through the facade of the
Building:
a. Temperature and Humidity Design Conditions:
<TABLE>
<S> <C> <C> <C>
1) Summer: Outside Air: Dry bulb 95(degree)F. d.b.
Wet bulb 75(degree)F. w.b
Inside Air: Dry bulb 75(degree)F. + 2(degree)F.d.b.
2) Winter: Outside Air: Dry bulb 0(degree)F.d.b.
Inside Air: Dry bulb 72(degree)F.d.b.
</TABLE>
b. Cooling Load Criteria:
1) Office:
a) Lighting in and small power: 5.0
watts/sq. Ft. usable/
b) People: 1 person per 100 sq. ft.
usable.
c. Outside air: Each of two air handling units on each
floor of the Office Premises will be provided with
3,350 cfm of outside air.
2. Special Tenant areas, such as the communications closets and
Hub Rooms as well as the Cafeteria/Dining Area in the Ground
Floor Premises, will utilize 24 hour per day, 7 day per week,
52 weeks of the year supplemental cooling systems provided at
the Tenant's cost, supplied with condenser water provided by
the Tenant at the Tenant's cost from heat rejection equipment
located on the Building's roof in an unencumbered area (56 ft.
0 in. by 36 ft. 0 in.).
3. Tenant will obtain outside air on the typical office floors in
the Office Premises requiring outside air or spill air at
times other than normal Business Hours on Business Days
through removal of glass elements only in the curtain wall on
Column Line L of the Building. Outside air and kitchen exhaust
air for the kitchen and Dining Facility in the Ground Floor
Premises will be obtained from the four (4) 25 ft. 0 in. X 2
ft. 8 in. windows located on Column 4 between Columns G and L.
The removal of any of these windows and the installations of
louvers and ductwork in their locations will be completed by
Tenant at the Tenant's cost and in accordance with Section
4.12 of this Lease.
4. Noise Levels:
a. Noise criteria levels in all portions of the Premises
will not exceed NC- 35 with the floor-by-floor
Systems defined in Article 24 operating provisions of
this Lease, other than in areas within 15 ft. 0 in.
of the wall of the room containing the air handling
unit, which will not exceed NC-40.
5. Special Systems:
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a. Miscellaneous Exhaust and Ventilation Systems:
Provide toilet exhaust system(s) with a rate of
exhaust based on a minimum of 15 air changes per
hour.
b. Space will be provided for Tenant condenser water
piping from the Tenant's heat rejection equipment on
the Building's roof to the Ground Floor Premises for
use in the kitchen and Dining Facility. The piping
for these systems will be installed by the Tenant at
Tenant's cost. Space requirement through all floors
is 1 ft. 0 in. by 2 ft. 6 in. clear. This is
exclusive of electrical and telecommunications
Dedicated Shaft Area(s) detailed in Articles 4 and 13
of this Lease.
B. SUPPLEMENTAL/OVERTIME COOLING SYSTEM
1. During Business Hours and on Business Days Landlord will
provide a system of closed loop condenser water, including
condenser water piping, open cell cooling towers with
plate-and-frame exchanger, water treatment, pumps, valves,
piping, etc., for the use of Tenant to satisfy a total cooling
load of 50 tons refrigeration for each floor of the Office
Premises, for future temporary connection to the Tenant's
equipment during construction of additional floors. After
Business Hours and on non-Business Days, Tenant will pay for
the above services as provided on Schedule 6.
C. HEATING SYSTEM:
1. Heating shall be provided during normal Business Hours of
Business Days during the heating season in accordance with the
temperatures described in Paragraph A.1.a.2. Nighttime setback
of the heating system during non- Business Hours and on
non-Business Days will not be less than 60(degree)F exclusive
of lighting contributions. Non-Business Hours and non-Business
Days Heat is described in Section V on Schedule 6.
D. BUILDING MANAGEMENT SYSTEM ("BMS")
1. The Base Building BMS will have the capacity to monitor and
control forty points on each floor for the air conditioning
systems including the VAV Terminals.
Panels, devices, other hardware and special software (if
needed) shall be provided by Tenant.
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E X H I B I T E
RULES AND REGULATIONS
1. The sidewalks, entrances, driveways, passages, courts, elevators, vestibules,
stairways, corridors, halls or other common areas of the Property shall not be
obstructed or encumbered by any Tenant or used for any purpose other than for
ingress to and egress from the Premises and for delivery of merchandise and
equipment in a prompt and efficient manner using elevators and passageways
designated for such delivery by Landlord. Only hand trucks equipped with rubber
tires and safeguards shall be used by Tenant, jobbers and others in all
space(s), public hall(s) or common area(s) of the Property in the delivery or
receipt of merchandise.
2. If the Premises are situated on the ground floor of the Building, Tenant
shall, at Tenant's sole cost and expense, keep the sidewalks and curb in front
of the Premises clean and free from ice, snow, etc.
3. The water and wash closets and plumbing fixtures in the Building shall not be
used for any purposes other than those for which they were designed or
constructed.
4. Tenant shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner unreasonably offensive or objectionable to Landlord
or other occupants of the Building by reason of noise, odors and/or vibrations,
or unreasonably interfere, in any way, with other tenants or those having
business therein.
5. Except as otherwise permitted under this Lease, no sign, advertisement,
notice or other lettering shall be exhibited, inscribed, painted or affixed by
Tenant on any part of the outside of the Premises or the Building, or on the
inside of the Premises if the same is visible from the outside of the Premises,
without the prior written consent of Landlord, except that the name of Tenant
may appear on the entrance door of the Premises and in the elevator lobby area
of each floor of the Premises. In the event of the violation of the foregoing by
any Tenant, Landlord may remove same without any liability and may charge the
expense incurred by such removal to Tenant, and Tenant shall pay the same
promptly, as additional rent hereunder. Except as otherwise permitted under this
Lease. Except as otherwise permitted under this Lease, signs on exterior doors
visible from common areas and directory tablet shall be inscribed, painted or
affixed for Tenant by Landlord, at the expense of such Tenant, and shall be of a
size, color and style acceptable to Landlord.
6. Except as otherwise permitted under this Lease, Tenant shall not mark, paint,
drill into, or in any way deface any part of the Premises or the Building,
provided, however, that Tenant shall have the right to hang pictures, shelving
and other similar items within the Premises. Except as otherwise permitted under
this Lease, no boring, cutting or stringing of wires shall be permitted, except
with the prior written consent of Landlord, and as Landlord may direct. Tenant
shall not lay linoleum, or other similar floor covering, so that the same shall
come in direct contact with the floor of the Premises, and, if linoleum or other
similar floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor, by a paste or other
material, soluble in water; the use of cement or other similar adhesive material
being expressly prohibited.
7. Except as otherwise permitted under this Lease, freight, furniture, business
equipment, merchandise and bulky matter of any description shall be delivered to
and removed from the Premises only on the freight elevators and through the
Building's service entrances and corridors, and only during hours and in a
manner approved by Landlord. Landlord reserves the right to inspect all freight
to be brought into the Building and to exclude from the Building all freight
which violates any of these Rules and Regulations or this Lease.
8. Landlord reserves the right to exclude from the Building, during non-Business
Hours and
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<PAGE> 148
on non-Business Days, all persons who do not present a Building pass signed by
Landlord or Landlord's managing agent. Landlord or Landlord's managing agent
will furnish passes to persons for whom Tenant requests same in writing. Tenant
shall be responsible for all persons for whom he requests such pass and shall be
liable to Landlord for all acts of such person.
9. Landlord shall have the right to prohibit any advertising by Tenant which, in
Landlord's reasonable opinion, tends to impair the reputation of Landlord and/or
the Building, or its desirability as a building for retail and office use, and
upon written notice from Landlord, Tenant shall refrain from, and shall
discontinue, such advertising.
10. Subject to the terms of the Lease, Tenant shall not bring or permit to be
brought or kept in or on the Premises, any inflammable, combustible or explosive
fluid, material, chemical or substance, or any hazardous substance or material,
or cause or permit any odors of cooking or other processes, or any unusual or
other objectionable odors to permeate in or emanate from the Premises.
11. Tenant shall not place a load on any floor of the Premises exceeding the
floor load per square foot area which it was designed to carry and which is
permitted by Legal Requirements, except as a floor load may be increased as an
Alteration permitted by the Lease. Landlord reserves the right to reasonably
prescribe the weight and position of all safes, business machines and mechanical
equipment . Such installations shall be placed and maintained by Tenant at
Tenant's expense in setting sufficient in Landlord's judgment to absorb and
prevent vibration, noise and annoyance.
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E X H I B I T F
FORM OF MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is entered into as of the day of
March, 1999, by and between NEWPORT OFFICE CENTER III COMPANY, LLC, a New Jersey
limited liability company ("Landlord"), and PAINEWEBBER INCORPORATED, a Delaware
corporation ("Tenant").
1. Pursuant to an Agreement of Lease (the "Lease") executed by
Landlord and Tenant, dated March ___, 1999, Landlord has leased to Tenant
certain Premises located on the entire 9th, 10th, 11th, 12th, 14th, and 15th
floors and a portion of the ground floor shown on Exhibit A attached hereto,
which Premises are part of the building located at 499 Washington Street, Jersey
City, New Jersey, more particularly described in Exhibit B attached hereto and
made a part hereof by reference.
2. The term of the Lease shall commence on the Commencement
Date set forth in the Lease and shall expire fifteen (15) years and six (6)
months from Commencement Date as determined by the provisions of the Lease.
3. Tenant has an option to extend the term of the Lease for
two (2) periods of five (5) years each, on the same terms and conditions as
stated in Article 1 of the Lease. Tenant has an option to lease additional space
in the Building as it may become available on the terms and conditions stated in
Article 39 of the Lease.
4. This Memorandum of Lease is subject to all of the terms,
conditions and understandings set forth in the Lease, which are incorporated
herein by reference and made a part hereof, as though copied verbatim herein. In
the event of a conflict between the terms and conditions of this Memorandum of
Lease and the terms and conditions of the Lease, the terms and conditions of the
Lease shall prevail.
5. This Memorandum may be executed in one or more
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which taken together shall constitute but one and the same
instrument.
EXECUTED as of the date first written above.
LANDLORD:
NEWPORT OFFICE CENTER III COMPANY, LLC, a
New Jersey limited liability company
By: N.O.C. III Realty Corp., a New Jersey
corporation, a member
By:
Name:
Title:
TENANT:
PAINEWEBBER INCORPORATED
A Delaware corporation
By:
Name:
Title:
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<PAGE> 150
[LANDLORD]
STATE OF NEW YORK ) ss:
COUNTY OF NEW YORK )
On the day of March 1999, 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 President of N.O.C. III
REALTY CORP, a corporation which is a member of NEWPORT OFFICE CENTER III
COMPANY, LLC, and that he signed his name on behalf of said corporation, as a
member of the limited liability company, for and on behalf of said limited
liability company.
____________________________
Notary Public
[CORPORATE TENANT]
STATE OF NEW YORK ) ss:
COUNTY OF NEW YORK )
On the day of March, 1999, before me personally came __________________, to
me known, who being by me duly sworn, did depose and say that he resides in that
he is the _________ of ________________________________, the corporation
described in and which executed the foregoing instrument, as TENANT; and that he
signed his name thereto by order of the board of directors of said corporation.
____________________________
Notary Public
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<PAGE> 151
EXHIBIT A TO MEMORANDUM OF LEASE
Portion of Ground Floor Premises
F-3
<PAGE> 152
EXHIBIT B TO MEMORANDUM OF LEASE
LEGAL DESCRIPTION
DESCRIPTION OF LOT 1.14 BLOCK 20
IN THE CITY OF JERSEY CITY
HUDSON COUNTY, NEW JERSEY
BEGINNING at a point (New Jersey State Plane Coordinate System North
690,167.1370, East 2,174,883.3190) in the westerly sideline of Washington
Boulevard, said point being the common corner of Lots 1.04 and 1.14 Block 20 as
shown on a certain map entitled "Final Subdivision at Newport, Block 20, Lots
1.05, 1.06 and 1.07 Redesignated Proposed Lots 1.14, 1.15 and 1.16, City of
Jersey City, Hudson County, New Jersey dated March 23, 1998," and filed in the
Hudson County Register's Office on April 30, 1998 as Filed Map No.
3660 and from said point runs, thence;
Along said westerly sideline S25(degree)29' 14" W a distance of 41.96 feet
to a point of curvature in the same, thence;
Southerly along said westerly sideline and along a curve to the left with a
radius of 1300.00 feet and an arc distance of 359.98 feet and a central angle of
15(0)51' 56", chord bearing S 17(degree)33' 16" W and a chord distance of 358.83
feet to a point, thence;
Leaving said westerly sideline of Washington Boulevard, N 83(degree)27' 19"
W a distance of 186.92 feet to a point, thence;
N 06(degree)15' 42" E a distance of 390.56 feet to a point, thence;
S 83(degree)44' 18" E a distance of 271.00 feet to the POINT AND PLACE OF
BEGINNING.
Containing 85,534 square feet or 1.964 acres.
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E X H I B I T G
TERMS AND CONDITIONS OF THE ANTENNA INSTALLATION
1. The Antenna Installation. In connection with the conduct of Tenant's
business in and from the Premises, and Tenant's use of the Premises for the
Permitted Use, Tenant shall have the right, without payment to Landlord of any
license fee or other charge therefor, except as is otherwise expressly set forth
in Article 38 or this Exhibit G, and upon the terms and conditions set forth
herein, to install (and thereafter operate, maintain, repair and replace) on the
roof of the Building in an area which is (a) not as of the date hereof reserved
to Landlord and its agents and employees for their use and/or which is required
for or in connection with the operation of the Building, the Building Chilled
Water System and/or the Building Systems, respectively, and (b) is available for
use by or for Building tenants and/or third parties (the "Available Roof Area"),
in a location consisting of an area not to exceed more than Tenant's Operating
Share of the Available Area and to be designated as set forth below (the
"Location"), one radio-wave antenna, satellite or microwave dish to be between
approximately _______ (____") inches and __________ (_____") inches in diameter,
but not to exceed ___________( ") inches in diameter (collectively, the
"Antenna"), related equipment (the "Equipment"), a supporting structure for the
Antenna (the "Support"), and certain conduits, wires and cables in certain
portions of the Building to connect the Antenna to certain of Tenant's equipment
in the Premises (the "Wiring"). The Antenna, Equipment, Support and the Wiring
and peripheral equipment installed in connection therewith are collectively
referred to as the "Antenna Installation". The specifications for the Antenna
and the Equipment shall be more particularly described on a Rooftop Installation
Questionnaire in the form of Schedule 1 annexed hereto which Schedule 1 shall be
filled out and delivered by Tenant to Landlord prior to the performance of the
Antenna Installation.
2. Tenant's Sole Cost. The installation of the Antenna Installation and
subsequent operation, maintenance, repair and/or replacement thereof during the
Term of this Lease shall be at Tenant's sole cost and expense.
3. The Location; Plans and Specifications. (a) The actual size,
dimensions and area of the Location, the routing of all Wiring in connection
therewith (the "Routing") as well as the physical location of any item(s)
constituting part of the Antenna Installation shall be subject to Landlord's
approval which shall not be unreasonably withheld, delayed or conditioned.
Tenant hereby agrees that Landlord may require Tenant to utilize a Location on
the roof of the Building that can be screened from view from the sidewalks
adjacent to the Building and the Property, provided, however, that such Location
permits uninterrupted reception and transmission for the Antenna.
(b) Before performing the Antenna Installation, Tenant shall
provide Landlord with plans and specifications (collectively, the "Plans")
setting forth the actual dimensions of the Antenna, the Equipment and the
Wiring, as well as the proposed manner of affixing same to the Location and the
particular Wiring Location/Routing for the Antenna Installation, including,
without limitation, specifications of the Support as well as the proposed manner
of affixing the Support to the roof of the Building at the Location. In
addition, the Plans shall specify whether the Antenna will be used only for
transmitting, or only receiving, or for both transmitting and receiving, the
detailed particulars thereof specifying the frequency band(s) which will be
utilized and whether the Antenna is capable of using (and whether or not the
Antenna or related Equipment is fitted with) a splitter device permitting
multiplexing (i.e. enabling utilization of more than one frequency band).
Landlord's written approval of the Plans which shall not be unreasonably
withheld, delayed or conditioned shall first be obtained before Tenant shall
proceed with any work in connection with the Antenna Installation.
(c) Tenant agrees that the Antenna Installation and its use
shall at all times be in accordance with the provisions of Article 38, this
Exhibit G and the Rooftop Installation Questionnaire attached hereto as Schedule
1.
(d) Tenant acknowledges being advised by Landlord that
Landlord may permit third parties to, and may itself utilize various portions of
the Building's Available Roof Area for
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<PAGE> 154
the installation of, inter alia, microwave dishes, satellite communications
equipment, whip antennae, TV, radio, supplemental cooling towers and other such
equipment (collectively, the "Other Equipment"), and Tenant expressly
acknowledges and agrees that the selection of the Location, as well as the
selection of the Wiring Location/Routing to be used in connection therewith,
shall be subject to Landlord's direction and designation as hereinbefore
provided in paragraph 2(a) above.
(e) Tenant covenants and agrees that the Antenna Installation
shall be performed in accordance with the Plans as finally approved by Landlord
and subject to any conditions that Landlord may have imposed in connection with
its approval of such Plans, provided that any such conditions do not prevent or
interfere with the proper functioning of the Antenna for the purposes of
Tenant's business activities in the Premises.
(f) All costs of the Antenna Installation shall be borne
solely by Tenant, including, without limitation: (i) all costs necessary to have
the Antenna comply with Legal Requirements of Legal Authorities; (ii) the amount
of any taxes levied on the Antenna; (iii) Landlord's reasonable out-of-pocket
charges for reviewing any initial or subsequent Tenant's Plans which shall be
payable by Tenant to Landlord within thirty (30) days after demand; (iv)
Landlord's reasonable charges for providing Building personnel and possibly
other supervisory personnel to be in attendance during the installation of the
Antenna, any maintenance and repair thereof, as well as the removal thereof; and
(v) Landlord's actual cost for having Landlord's contractor or representative
physically connect the Wiring required for the operation of the Antenna to the
Building's electrical system and/or to or with any other Building System.
(g) Tenant shall make no changes to the method or
specifications of the Antenna Installation as set forth in the Plans as finally
approved by Landlord (and subject to any conditions imposed by Landlord in
connection with such approval), nor shall Tenant make any additions or changes
to any of the Wiring in the Building, including, but not limited to, any change
in the location of any of the Wiring without, in each instance, first obtaining
Landlord's prior written consent.
(h) Except for changes in frequencies approved by Landlord in
accordance with Paragraph 4(b) below, Tenant represents that the Antenna and its
use shall at all times be in accordance with the Questionnaire attached hereto
as Schedule 1 .
4. Use. (a) The Antenna shall be used by Tenant solely for the
transmission and reception of signals to or from the Antenna in connection with
Tenant's business operations in, and the Permitted Uses of, the Premises and no
rights to use same shall be granted by Tenant to any third parties, other than
expressly permitted by Article 38 of this Lease, but subject, nevertheless to
the provisions of this Section 4. Without limiting the foregoing, Tenant
expressly covenants and agrees that in no event will the Antenna be used, or be
permitted to be used, for any so called informational or data sale or the
commercial carrying of signals by any persons or entities (including any
commercial broadcasters) other than Tenant (or a Permitted Tenant) or other
assignee or successor-in-interest permitted under this Lease for the operation
of its business in the Premises. Landlord will use reasonable efforts not to
interfere, or to cause future users not to interfere, with Tenant's rights to
use the roof. Subject to the foregoing, Tenant covenants that it will use due
diligence and reasonable efforts to avoid use of its Antenna that will, in any
manner, cause interference with any Other Equipment now or hereafter installed
on the roof of the Building or with any communications equipment located in the
Building.
(b) (i) Tenant further expressly covenants and agrees that the
Antenna will, throughout the Term, operate on only the fixed channel frequency
which Tenant has specified in the Plans submitted to Landlord. In the event
Tenant should wish to change the frequency utilized by the Antenna to another or
other frequencies (the "Frequency Change"), Tenant shall request Landlord's
prior written approval of the Frequency Change on not less than sixty (60) days'
prior written notice to Landlord of such desired Frequency Change(s), specifying
in said notice the new frequency or frequencies that will be utilized by the
Antenna, the date(s) of the desired change(s) and whether such changed frequency
or frequencies will be used for transmission or receiving or both.
(ii) Landlord hereby agrees not to unreasonably withhold or
delay its consent to
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<PAGE> 155
Tenant's Frequency Change, provided, however, that (x) Tenant shall comply with
all applicable Legal Requirements of Legal Authorities regarding any such
Frequency Change; (y) Tenant's Frequency Change will not interfere with the use
of any Other Equipment then in use on the roof of the Building; and (z) the
Frequency Change will not result in, or impose an extra burden on any of the
Building Systems.
5. Electricity. Tenant shall pay for any electricity used in
connection with the operation of the Antenna, in accordance with Article 13 of
this Lease.
6. Expiration of the Term. (a) By no later than the expiration
of the Term, Tenant shall remove the Antenna Installation and restore all areas
of the Building affected by same, including, without limitation, the Building's
roof and the Location as well as any areas to which the Wiring shall have been
affixed, to the condition same were in prior to installing the Antenna
Installation. In the event Tenant fails to so remove all or any part of the
Antenna Installation by the expiration or sooner termination of the Term of this
Lease, Landlord, upon five (5) days' written notice, without being obligated to
do so, shall have the right to remove and dispose of all or any part of the
Antenna Installation that has not been so removed by Tenant without being
required to account to Tenant therefor, as well as to make all repairs of any
damage incurred by such removal, including, without limitation, restoration of
the roof area which may have been pierced by the Support forming part of the
Antenna Installation or any other part of such Antenna Installation.
(b) Landlord shall also have the right to charge Tenant the
cost of such removal, repair and restoration as well as a holdover fee at the
rate of $1,000.00 per day for each day or part thereof commencing with the sixth
(6th) day after the expiration or sooner termination of this Lease, that Tenant
shall have failed to entirely remove the Antenna Installation until such time as
the Antenna Installation shall have been removed, such holdover fee to be in
addition to the amounts required to be paid by Tenant pursuant to Section 1.2 of
the Lease.
(c) Nothing contained herein shall be construed as an express
or implied consent to Tenant, or anyone claiming by or under Tenant, remaining
in possession of or continuing to use and occupy all or any part of the
Building's roof, including the Location, after the expiration or sooner
termination of the Term of this Lease.
7. Indemnity. Tenant agrees to indemnify, defend and hold
Landlord, all Mortgagees and the Lessors harmless from all claims made by or on
behalf of any person or entity for injury to persons or property, death, damage
or violation of law arising from the installation, maintenance, operation or
removal of the Antenna Installation as well as from all loss, liability, cost
and expense (including attorney's fees, court costs and disbursements) in
connection therewith, unless resulting from the negligence or misconduct of
Landlord, its agents and employees.
8. Maintenance and Repair. Tenant, at its sole cost and
expense, shall keep the Antenna Installation in good order and condition
throughout the Term of this Lease and shall promptly make all repairs thereto as
and when necessary. In addition, Tenant, at its sole cost and expense, shall be
responsible for all repairs of any damage occasioned to the roof of the Building
or any portion of the Building or sidewalks thereof caused or resulting from:
(a) the installation and/or maintenance, repair, replacement or removal of the
Antenna Installation or any part thereof, or any piercing of the surface of the
Building's roof, including, without limitation, any piercing of the roof surface
which may result in a leakage of water into other areas of the roof or the
Building with resultant damage; or (b) Tenant's wrongful or negligent acts or
those of Tenant's agents, employees or contractors in performing any inspection
of, or repairs to, or maintenance, replacement or removal of the Antenna
Installation or any part thereof.
9. Access. (a) All desired access by Tenant or Tenant's
employees, agents or contractors to the Building for purposes of installing,
maintaining and removing the Antenna Installation shall first be coordinated
with Landlord's Building representative; it being understood that Landlord shall
have the right to prescribe the times when such access shall be afforded Tenant
(which may be other than during normal Business Hours) all to the intent and
purpose that the normal operation of the Building shall not be disturbed or
interfered with. Landlord's charges for overtime elevator service, if required,
provided to Tenant shall be paid by
G-3
<PAGE> 156
Tenant upon submission of Landlord's bills therefor. All access by Tenant to the
roof and other portions of the Building as well as all installations, repairs
and maintenance performed by Tenant in connection with the Antenna Installation,
shall be subject to the supervision and control of Landlord, and to Landlord's
safeguards for the security of the Building, the Building equipment and property
and installations of Building tenants, provided, however, Landlord hereby agrees
to provide reasonably necessary access to Tenant and its agents to permit Tenant
to install, repair, maintain and replace the Antenna. If for any reason Landlord
wishes to assign a person to be present when Tenant desires access to the roof,
Landlord may charge Tenant a fee for having Landlord's representative in
attendance during the period of Tenant's access, such fee not to exceed 100% of
the union hourly rate of pay including all fringe benefits paid by Landlord to
such representative computed on a minimum four (4) hour call basis.
(b) With respect to any repairs to the roof of the Building or
to any portions of the Building that may be Tenant's responsibility pursuant to
the foregoing provisions hereof, Landlord shall have the right to notify Tenant
either before or after receipt of notice from Tenant of desired access to the
Building for the purpose of making such repairs, that Landlord elects to itself
make such repairs utilizing contractors of Landlord's choosing, including,
without limitation, Landlord or affiliate(s) of Landlord, whose charges for
performing such work shall be competitive with those of other contractors
performing similar work in first class buildings located in the Comparable
Market, subject, however, to providing such documentation as may be reasonably
required by Tenant's insurance provisions, and which charges shall be paid
directly by Tenant on submission of a bill therefor by Landlord or reimbursed by
Tenant to Landlord, if Landlord shall have paid all or part of such charges in
the first instance.
(c) All labor used by Tenant or any of Tenant's agents or
contractors in connection with any installation, repair, replacement or other
work concerning the Antenna Installation shall be compatible with then existing
Building labor. In the event of any labor conflicts between existing Building
labor and Tenant's laborers, Tenant shall remove or cause its laborers to leave
the Building.
10. No Liability. (a) Landlord shall have no liability to Tenant in the
event the Antenna Installation or any part thereof is stolen or damaged from
whatever cause, unless such theft or damage is caused by or due to the gross
negligence or wilful misconduct of Landlord, its agents, servants or employees,
or in the event the electric supply to the Antenna Installation is interrupted
for any reason, including, without limitation, interruption caused by damage to
the Wiring or cables anywhere in the Building, unless such damage to the Wiring
or cables results from the gross negligence or wilful misconduct of Landlord,
its agents, servants and employees.
(b) Further, Landlord shall not be liable (i) for any such
damage caused by other tenants or persons in, upon or about the Building,
including the roof thereof, or caused by operations in construction of any
private, public or quasi-public work, or (ii) for the interference caused by
Other Equipment on the Building's roof, subject to the provisions of paragraph 4
above, or (iii) for consequential damages or lost profits arising out of any
loss of use of the Antenna Installation or any part thereof by Tenant or any
person claiming through or under Tenant.
11. As-Is. Tenant acknowledges that Landlord shall make the Location
available to Tenant in its "as-is" condition, as of the Commencement Date.
Further, Tenant acknowledges and agrees that Landlord shall have no obligation
to perform any work, supply any materials, incur any expense or make any
installation in order to prepare the Location for Tenant's use, as provided in
this Exhibit G.
12. Insurance. Tenant shall at all times maintain insurance covering
the Antenna Installation of the types and in the amounts specified in Article 9
of this Lease.
13. Other Terms and Conditions of Lease. Except as set forth herein,
the Antenna Installation shall be governed by all of the terms and conditions of
this Lease. In the event of any conflict between the terms and conditions set
forth in this Exhibit G and the terms and conditions contained in the other
portion of this Lease, the terms and conditions set forth in Exhibit G shall
prevail.
G-4
<PAGE> 157
SCHEDULE I TO EXHIBIT G
ROOFTOP INSTALLATION QUESTIONNAIRE
<TABLE>
<S> <C>
Dimensions: See Plans Attached
Service Clearance:
Weight: See Plans Attached
Heat Output:
Airflow:
Power Requirements: Voltage:
kVa:
Kwh per day:
Wattage:
Phase:
Plug Type:
Power Cord:
Operating Environment Temperature:
Relative
Humidity
Antenna Type:
Frequency:
Radio Equipment:
</TABLE>
G-5
<PAGE> 158
E X H I B I T G-1
TERMS AND CONDITIONS OF THE EPS EQUIPMENT INSTALLATION
1. The EPS Equipment Installation. In connection with the provision of emergency
power to the Premises and Tenant's use of the Premises for the Permitted Use,
Tenant shall have the right, without payment to Landlord of any license fee or
other charge therefor, except as is otherwise expressly set forth in Article 38
or this Exhibit G-1, and upon the terms and conditions set forth herein, to
install (and thereafter operate, maintain, repair and replace) at the EPS
Location as shown on Exhibit A-2 annexed to this Lease and designated with the
words "Generator-PaineWebber", as described in Article 38 ("EPS") and related
equipment. The EPS and such related equipment are collectively referred to as
the "EPS Equipment".
2. Tenant's Sole Cost. The installation of the EPS Equipment and subsequent
operation, maintenance, repair and/or replacement thereof during the Term of
this Lease shall be at Tenant's sole cost and expense.
3. The EPS Location; the EPS Equipment ; Plans and Specifications. (a) The
actual size, dimensions and areas of the EPS Location, as well as the physical
location of any item(s) constituting part of the EPS Equipment, shall be subject
to Landlord's reasonable designation and reasonable approval, and shall be
substantially as shown on Exhibit A-2 to this Lease, which in no event shall be
smaller or greater than an area necessary to install the EPS Equipment.
(b) Before performing the EPS Equipment installation, Tenant shall
provide Landlord with plans and specifications (collectively, the "Plans")
setting forth the actual dimensions of the EPS and the Equipment. Landlord's
written approval which shall not be unreasonably withheld, delayed or
conditioned Plans shall first be obtained before Tenant shall proceed with any
work in connection with the installation of the EPS Equipment.
(c) Tenant agrees that Landlord and its agents and employees may have
reasonable access to the EPS Location as required for the maintenance, repair or
operation of the Building and/or the Building Systems.
(d) Tenant covenants and agrees that the installation of the EPS
Equipment shall be performed in accordance with the Plans as finally approved by
Landlord and subject to any conditions that Landlord may have reasonably imposed
in connection with its approval of such Plans, provided that any such conditions
do not prevent or interfere with the proper functioning of the EPS. Further the
use and operation of the EPS shall be in accordance with Article 38 and this
Exhibit G-1.
(e) All costs of the EPS Equipment and installation thereof shall be
borne solely by Tenant, including, without limitation: (i) all costs necessary
to have the EPS Equipment comply with Legal Requirements of the Legal
Authorities and/or Environmental Laws; (ii) the amount of any taxes levied on
the EPS Equipment ; (iii) Landlord's reasonable out-of-pocket charges for
reviewing any initial or subsequent Plans which shall be payable by Tenant to
Landlord within thirty (30) days after demand; and (iv) Landlord's reasonable
costs for providing Building personnel and possibly other supervisory personnel
to be in attendance during the installation of the EPS Equipment, any
maintenance and repair thereof, as well as the removal thereof.
(f) Tenant shall make no changes to the method of installation or
specifications for the EPS Equipment as set forth in the Plans as finally
approved by Landlord (and subject to any reasonable conditions imposed by
Landlord in connection with such approval), without first obtaining Landlord's
prior written consent thereto, which Landlord agrees shall not be unreasonably
withheld or delayed.
G-1-1
<PAGE> 159
4. Expiration of the Term. (a) By no later than the expiration of the Term,
Tenant shall, at Landlord's option, remove the EPS Equipment, and restore all
portions of the EPS Location and all areas of the Building (whether outdoors or
indoors) affected thereby. In the event Tenant fails to so remove all or any
part of the EPS Equipment by the expiration or sooner termination of the Term,
Landlord, upon five (5) days' written notice, without being obligated to do so,
shall have the right to remove and dispose of all or any part of the EPS
Equipment that has not been so removed by Tenant without being required to
account to Tenant therefor, as well as to make all repairs of any damage
incurred by such removal, including, without limitation, restoration of the EPS
Location which may have been damaged by the weight and/or anchoring of the EPS
Equipment.
(b) Landlord shall also have the right to charge Tenant the cost of such
removal, repair and restoration as well as a holdover fee at the rate of
$1,000.00 per day for each day or part thereof commencing with the sixtieth
(60th) day after the expiration or sooner termination of this Lease, that Tenant
shall have failed to entirely remove the EPS Equipment from the EPS Location and
other areas of the Building (whether outdoors or indoors) affected thereby until
such time as the EPS Equipment shall have been so removed, such holdover fee to
be in addition to the amounts required to be paid by Tenant pursuant to Section
1.2 of this Lease.
(c) Nothing contained herein shall be construed as an express or implied
consent to Tenant, or anyone claiming by or under Tenant, remaining in
possession of or continuing to use and occupy all or any part of the EPS
Location, after the expiration or sooner termination of the Term of this Lease.
5. Indemnity. Tenant agrees to indemnify, defend and hold Landlord, all
Mortgagees and Lessors harmless from all claims made by or on behalf of any
person or entity for injury to persons or property, death, damage or violation
of any Legal Requirements, including, but not limited to, Environmental Laws
arising from or in connection with the installation, maintenance, operation or
removal of the EPS Equipment as well as from all loss, liability, cost and
expense (including reasonable attorney's fees, court costs and disbursements) in
connection therewith.
6. Access. (a) All desired access by Tenant or Tenant's employees, agents or
contractors to the Building and/or the EPS Location, for purposes of installing,
maintaining and removing all or portions of the EPS Equipment shall first be
coordinated with Landlord's Building representative; it being understood that
Landlord shall have the right to prescribe the times when such access shall be
afforded Tenant (which may be other than during normal Business Hours) all to
the intent and purpose that the normal operation of the Building shall not be
disturbed or interfered with. All access by Tenant to portions of the Building
and the EPS Location as well as all installations, repairs and maintenance
performed by Tenant in connection with the EPS Equipment, shall be subject to
the reasonable supervision and control of Landlord, and to Landlord's safeguards
for the security of the Building, the Building equipment and property and
installations of Building tenants, provided, however, Landlord hereby agrees to
provide reasonably necessary access to Tenant and its agents to permit Tenant to
install, repair, maintain and replace the EPS Equipment in the EPS Location.
(b) All labor used by Tenant or any of Tenant's agents or contractors
in connection with any installation, repair, replacement or other work
concerning the EPS Equipment shall be compatible with then existing Building
labor. In the event of any labor conflicts between existing Building labor and
Tenant's laborers, Tenant shall remove or cause its laborers to leave the
Building.
7. No Liability. Landlord shall have no liability to Tenant in the event the EPS
Equipment or any part thereof is stolen or damaged from whatever cause, unless
such theft or damage is caused by or due to the gross negligence or willful
misconduct of Landlord, its agents, servants or employees.
8. As-Is. Tenant acknowledges that Landlord shall make the EPS Location
available to Tenant
G-1-2
<PAGE> 160
in its or then "as-is" condition, as of the Commencement Date. Further, Tenant
acknowledges and agrees that Landlord shall have no obligation to perform any
work, supply any materials, incur any expense or make any installation in order
to prepare the EPS Location for Tenant's use, as provided in this Exhibit G-1.
9. Insurance. Tenant shall at all times maintain insurance covering the EPS
Equipment of the types and in the amounts specified in Article 9 of the Lease.
10. Other Terms and Conditions of Lease. Except as set forth herein, the EPS
Equipment shall be governed by all of the terms and conditions of this Lease. In
the event of any conflict between the terms and conditions set forth in this
Exhibit G-1 and the terms and conditions contained in the other portion of this
Lease, the terms and conditions set forth in this Exhibit G-1 shall prevail.
G-1-3
<PAGE> 161
E X H I B I T G-2
TERMS AND CONDITIONS OF THE COOLING TOWER INSTALLATION
1. The Cooling Tower Installation. In connection with the conduct of
Tenant's business in and from the Premises, and Tenant's use of the Premises for
the Permitted Use, Tenant shall have the right, without payment to Landlord of
any license fee or other charge therefor, except as is otherwise expressly set
forth in Article 38 or this Exhibit G-2, and upon the terms and conditions set
forth herein, to install (and thereafter operate, maintain, repair and replace)
on the roof of the Building, initially in the general location shown by hatching
on Exhibit A-3 annexed hereto and made a part hereof with the designation
"PaineWebber Supplemental Cooling Tower-Space" (the "Location"), one (1) cooling
tower ( the "Supplemental Cooling Tower"), related equipment (the "Equipment"),
a supporting structure for the Supplement Cooling Tower (the "Support"), and
certain conduits, wires and cables in certain portions of the Building to
connect the Supplemental Cooling Tower to certain of Tenant's equipment in the
Premises (the "Wiring"). The Supplemental Cooling Tower, Equipment, Support and
the Wiring and peripheral equipment installed in connection therewith are
collectively referred to as the "Cooling Tower Installation".
2. Tenant's Sole Cost. The installation of the Cooling Tower
Installation and subsequent operation, maintenance, repair and/or replacement
thereof during the Term of this Lease shall be at Tenant's sole cost and
expense.
3. The Location; Plans and Specifications. (a) The actual size,
dimensions and area of the Location, the routing of all Wiring in connection
therewith (the "Routing") as well as the physical location of any item(s)
constituting part of the Cooling Tower Installation shall be subject to
Landlord's approval which shall not be unreasonably withheld, delayed or
conditioned. Tenant hereby agrees that Landlord may require Tenant to utilize a
Location on the roof of the Building that can be screened from view from the
sidewalks adjacent to the Building and the Property or to relocate the
Supplementary Cooling Tower to another location on the roof of the Building from
time to time.
(b) Before performing the Cooling Tower Installation, Tenant
shall provide Landlord with plans and specifications (collectively, the "Plans")
setting forth the actual dimensions of the Supplemental Cooling Tower, the
Equipment and the Wiring, as well as the proposed manner of affixing same to the
Location and the particular Wiring Location/Routing for the Cooling Tower
Installation, including, without limitation, specifications of the Support as
well as the proposed manner of affixing the Support to the roof of the Building
at the Location. Landlord's written approval of the Plans which shall not be
unreasonably withheld, delayed or conditioned shall first be obtained before
Tenant shall proceed with any work in connection with the Cooling Tower
Installation.
(c) Tenant agrees that the Cooling Tower Installation and its
use shall at all times be in accordance with the provisions of Article 38, this
Exhibit G-2.
(d) Tenant acknowledges being advised by Landlord that
Landlord may permit third parties to, and may itself utilize various portions of
the Building's Available Roof Area for the installation of, inter alia,
microwave dishes, satellite communications equipment, whip antennae, TV, radio,
cooling towers, and other such equipment (collectively, the"Other Equipment"),
and Tenant expressly acknowledges and agrees that the selection of the Location,
as well as the selection of the Wiring Location/Routing to be used in connection
therewith, shall be subject to Landlord's direction and designation as
hereinbefore provided in paragraph 3(a) above.
(e) Tenant covenants and agrees that the Cooling Tower
Installation shall be performed in accordance with the Plans as finally approved
by Landlord and subject to any conditions that Landlord may have imposed in
connection with its approval of such Plans,
G-2-1
<PAGE> 162
provided that any such conditions do not prevent or interfere with the proper
functioning of the Supplemental Cooling Tower for the purposes of Tenant's
business activities in the Premises.
(f) All costs of the Cooling Tower Installation shall be borne
solely by Tenant, including, without limitation: (i) all costs necessary to have
the Supplemental Cooling Tower comply with Legal Requirements of Legal
Authorities; (ii) the amount of any taxes levied on the Cooling Tower
Installation; (iii) Landlord's reasonable out-of-pocket charges for reviewing
any initial or subsequent Tenant's Plans which shall be payable by Tenant to
Landlord within thirty (30) days after demand; (iv) Landlord's reasonable
charges for providing Building personnel and possibly other supervisory
personnel to be in attendance during the installation of the Supplemental
Cooling Tower, any maintenance and repair thereof, as well as the removal
thereof; and (v) Landlord's actual cost for having Landlord's contractor or
representative physically connect the Wiring required for the operation of the
Supplemental Cooling Tower to the Building's electrical system and/or to or with
any other Building System.
(g) Tenant shall make no changes to the method or
specifications of the Cooling Tower Installation as set forth in the Plans as
finally approved by Landlord (and subject to any conditions imposed by Landlord
in connection with such approval), nor shall Tenant make any additions or
changes to any of the Wiring in the Building, including, but not limited to, any
change in the location of any of the Wiring without, in each instance, first
obtaining Landlord's prior written consent.
4. Use. The Supplemental Cooling Tower shall be used by Tenant
solely in connection with Tenant's business operations in, and the Permitted
Uses of, the Premises and no rights to use same shall be granted by Tenant to
any third parties, other than expressly permitted by Article 38 of this Lease,
but subject, nevertheless to the provisions of this Section 4.
5. Electricity. Tenant shall pay for any electricity used in
connection with the operation of the Supplemental Cooling Tower, in accordance
with Article 13 of this Lease.
6. Expiration of the Term. (a) By no later than the expiration
of the Term, Tenant shall remove the Cooling Tower Installation and restore all
areas of the Building affected by same, including, without limitation, the
Building's roof and the Location as well as any areas to which the Wiring shall
have been affixed, to the condition same were in prior to installing the Cooling
Tower Installation. In the event Tenant fails to so remove all or any part of
the Cooling Tower Installation by the expiration or sooner termination of the
Term of this Lease, Landlord, upon five (5) days' written notice, without being
obligated to do so, shall have the right to remove and dispose of all or any
part of the Cooling Tower Installation that has not been so removed by Tenant
without being required to account to Tenant therefor, as well as to make all
repairs of any damage incurred by such removal, including, without limitation,
restoration of the roof area which may have been pierced by the Support forming
part of the Cooling Tower Installation or any other part of such Cooling Tower
Installation.
(b) Landlord shall also have the right to charge Tenant the
cost of such removal, repair and restoration as well as a holdover fee at the
rate of $1,000.00 per day for each day or part thereof commencing with the sixth
(6th) day after the expiration or sooner termination of this Lease, that Tenant
shall have failed to entirely remove the Cooling Tower Installation until such
time as the Cooling Tower Installation shall have been removed, such holdover
fee to be in addition to the amounts required to be paid by Tenant pursuant to
Section 1.2 of the Lease.
(c) Nothing contained herein shall be construed as an express
or implied consent to Tenant, or anyone claiming by or under Tenant, remaining
in possession of or continuing to use and occupy all or any part of the
Building's roof, including the Location, after the expiration or sooner
termination of the Term of this Lease.
G-2-2
<PAGE> 163
7. Indemnity. Tenant agrees to indemnify, defend and hold
Landlord, all Mortgagees and the Lessors harmless from all claims made by or on
behalf of any person or entity for injury to persons or property, death, damage
or violation of law arising from the installation, maintenance, operation or
removal of the Cooling Tower Installation as well as from all loss, liability,
cost and expense (including attorney's fees, court costs and disbursements) in
connection therewith, unless resulting from the negligence or misconduct of
Landlord, its agents and employees.
8. Maintenance and Repair. Tenant, at its sole cost and
expense, shall keep the Cooling Tower Installation in good order and condition
throughout the Term of this Lease and shall promptly make all repairs thereto as
and when necessary. In addition, Tenant, at its sole cost and expense, shall be
responsible for all repairs of any damage occasioned to the roof of the Building
or any portion of the Building or sidewalks thereof caused or resulting from:
(a) the installation and/or maintenance, repair, replacement or removal of the
Cooling Tower Installation or any part thereof, or any piercing of the surface
of the Building's roof, including, without limitation, any piercing of the roof
surface which may result in a leakage of water into other areas of the roof or
the Building with resultant damage; or (b) Tenant's wrongful or negligent acts
or those of Tenant's agents, employees or contractors in performing any
inspection of, or repairs to, or maintenance, replacement or removal of the
Cooling Tower Installation or any part thereof.
9. Access. (a) All desired access by Tenant or Tenant's
employees, agents or contractors to the Building for purposes of installing,
maintaining and removing the Cooling Tower Installation shall first be
coordinated with Landlord's Building representative; it being understood that
Landlord shall have the right to prescribe the times when such access shall be
afforded Tenant (which may be other than during normal Business Hours) all to
the intent and purpose that the normal operation of the Building shall not be
disturbed or interfered with. Landlord's charges for overtime elevator service,
if required, provided to Tenant shall be paid by Tenant upon submission of
Landlord's bills therefor. All access by Tenant to the roof and other portions
of the Building as well as all installations, repairs and maintenance performed
by Tenant in connection with the Cooling Tower Installation, shall be subject to
the supervision and control of Landlord, and to Landlord's safeguards for the
security of the Building, the Building equipment and property and installations
of Building tenants, provided, however, Landlord hereby agrees to provide
reasonably necessary access to Tenant and its agents to permit Tenant to
install, repair, maintain and replace the Supplemental Cooling Tower. If for any
reason Landlord wishes to assign a person to be present when Tenant desires
access to the roof, Landlord may charge Tenant a fee for having Landlord's
representative in attendance during the period of Tenant's access, such fee not
to exceed 100% of the union hourly rate of pay including all fringe benefits
paid by Landlord to such representative computed on a minimum four (4) hour call
basis.
(b) With respect to any repairs to the roof of the Building or
to any portions of the Building that may be Tenant's responsibility pursuant to
the foregoing provisions hereof, Landlord shall have the right to notify Tenant
either before or after receipt of notice from Tenant of desired access to the
Building for the purpose of making such repairs, that Landlord elects to itself
make such repairs utilizing contractors of Landlord's choosing, including,
without limitation, Landlord or affiliate(s) of Landlord, whose charges for
performing such work shall be competitive with those of other contractors
performing similar work in first class buildings located in the Comparable
Market, subject, however, to providing such documentation as may be reasonably
required by Tenant's insurance provisions, and which charges shall be paid
directly by Tenant on submission of a bill therefor by Landlord or reimbursed by
Tenant to Landlord, if Landlord shall have paid all or part of such charges in
the first instance.
(c) All labor used by Tenant or any of Tenant's agents or
contractors in connection with any installation, repair, replacement or other
work concerning the Cooling Tower Installation shall be compatible with then
existing Building labor. In the event of any labor conflicts between existing
Building labor and Tenant's laborers, Tenant shall remove or
G-2-3
<PAGE> 164
cause its laborers to leave the Building.
10. No Liability. (a) Landlord shall have no liability to Tenant in the
event the Cooling Tower Installation or any part thereof is stolen or damaged
from whatever cause, unless such theft or damage is caused by or due to the
gross negligence or wilful misconduct of Landlord, its agents, servants or
employees, or in the event the electric supply to the Cooling Tower Installation
is interrupted for any reason, including, without limitation, interruption
caused by damage to the Wiring or cables anywhere in the Building, unless such
damage to the Wiring or cables results from the gross negligence or wilful
misconduct of Landlord, its agents, servants and employees.
(b) Further, Landlord shall not be liable (i) for any such
damage caused by other tenants or persons in, upon or about the Building,
including the roof thereof, or caused by operations in construction of any
private, public or quasi-public work, or (ii) for consequential damages or lost
profits arising out of any loss of use of the Cooling Tower Installation or any
part thereof by Tenant or any person claiming through or under Tenant.
11. As-Is. Tenant acknowledges that Landlord shall make the Location
available to Tenant in its "as-is" condition, as of the Commencement Date.
Further, Tenant acknowledges and agrees that Landlord shall have no obligation
to perform any work, supply any materials, incur any expense or make any
installation in order to prepare the Location for Tenant's use, as provided in
this Exhibit G-2.
12. Insurance. Tenant shall at all times maintain insurance covering
the Cooling Tower Installation of the types and in the amounts specified in
Article 9 of this Lease.
13. Other Terms and Conditions of Lease. Except as set forth herein,
the Cooling Tower Installation shall be governed by all of the terms and
conditions of this Lease. In the event of any conflict between the terms and
conditions set forth in this Exhibit G-2 and the terms and conditions contained
in the other portion of this Lease, the terms and conditions set forth in
Exhibit G-2 shall prevail.
G-2-4
<PAGE> 165
E X H I B I T H
RAISED FLOOR PLANS
H-1
<PAGE> 166
E X H I B I T H
RAISED FLOOR PLANS
[GRAPHIC OF STAIR EGRESS CAPACITY STUDY BLUE PRINT]
H-2
<PAGE> 167
E X H I B I T H
RAISED FLOOR PLANS
[GRAPHIC OF RAISED FLOOR BLUE PRINT]
H-3
<PAGE> 168
E X H I B I T I
LOCATION OF THE DEDICATED SHAFT AREA(S)
[GRAPHIC OF TELEPHONE CLOSET (SOUTH)]
I-1
<PAGE> 169
E X H I B I T I
LOCATION OF THE DEDICATED SHAFT AREA(S)
[GRAPHIC OF TELEPHONE CLOSET (NORTH)]
I-2
<PAGE> 170
E X H I B I T I
LOCATION OF THE DEDICATED SHAFT AREA(S)
[GRAPHIC OF ELECTRIC CLOSET)]
I-3
<PAGE> 171
E X H I B I T I
LOCATION OF THE DEDICATED SHAFT AREA(S)
[GRAPHIC OF TELEPHONE CLOSET (NORTH)]
I-4
<PAGE> 172
E X H I B I T I
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E X H I B I T I
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E X H I B I T I
LOCATION OF THE DEDICATED SHAFT AREA(S)
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E X H I B I T I
LOCATION OF THE DEDICATED SHAFT AREA(S)
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1
PAINE WEBBER GROUP INC.
1999 EXECUTIVE INCENTIVE COMPENSATION PLAN
1. Purposes. The purposes of this 1999 Executive Incentive Compensation
Plan are to provide an incentive to executive officers and other selected key
executives of PWG to contribute to the growth, profitability and increased
shareholder value of PWG, to retain such executives and endeavor to qualify the
compensation paid under the Plan for tax deductibility under Section 162(m) of
the Code.
2. Definitions. For purposes of the Plan, the following terms shall be
defined as set forth below:
(a) "Annual Profits" shall mean the annual consolidated pre-tax
operating income of PWG for the Performance Period before accounting for
incentive compensation and corporate charges, the cost of restructuring and
discontinued operations and other non-recurring charges.
(b) "Award" shall mean a Formula Award, a Performance Award, or both of
the foregoing.
(c) "Award Pool" shall mean a pool of funds specified by the Committee,
in accordance with Section 6, out of which Formula Awards may be made to
Participants.
(d) "Board" shall mean PaineWebber's Board of Directors.
(e) "Change in Control" shall mean the occurrence of any of the
following events:
(i) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than PWG, any trustee or other
fiduciary holding securities under an employee benefit plan of PWG, or
any corporation owned, directly or indirectly, by the stockholders of
PaineWebber in substantially the same proportions as their
contemporaneous ownership of voting securities of PaineWebber, is or
becomes a "20% Beneficial Owner." For purposes of this provision, a
"20% Beneficial Owner" shall mean a person who is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of PaineWebber representing 20%
or more of the combined voting power of PaineWebber's then-outstanding
voting securities (a "20% Beneficial Owner"); provided that (A) the
term "20% Beneficial Owner" shall not include any Beneficial Owner that
has crossed such 20% threshold solely as a result of an acquisition of
securities directly from PaineWebber, or solely as a result of an
acquisition by PaineWebber of PaineWebber securities, until such time
thereafter as such person acquires additional voting securities other
than
<PAGE> 2
2
directly from PaineWebber and, after giving effect to such acquisition,
such person would constitute a 20% Beneficial Owner and (B) with
respect to any person who is and remains eligible to file a Schedule
13G pursuant to Rule 13d-1(b)(1) under the Exchange Act with respect to
PaineWebber securities, there shall be excluded from the number of
securities deemed to be beneficially owned by such person for purposes
of determining whether such person is a 20% Beneficial Owner a number
of securities representing 10% of the combined voting power of
PaineWebber's then-outstanding voting securities;
(ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board, together with
any new director (other than a director designated by a person who has
entered into an agreement with PaineWebber to effect a transaction
described in paragraph (i), (iii) or (iv) hereof) whose election by the
Board or nomination for election by PaineWebber's stockholders was
approved by a vote of at least two-thirds ( ) of the directors then
still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so
approved (the "Continuing Directors"), cease for any reason to
constitute at least a majority thereof;
(iii) the stockholders of PaineWebber approve a merger,
consolidation, recapitalization, or reorganization of PaineWebber, or a
reverse stock split of any class of voting securities of PaineWebber,
or the consummation of any such transaction if stockholder approval is
not obtained, other than any such transaction which would result in at
least 80% of the total voting power represented by the voting
securities of PaineWebber or the surviving entity outstanding
immediately after such transaction being beneficially owned by persons
who together beneficially owned at least 80% of the combined voting
power of the voting securities of PaineWebber outstanding immediately
prior to such transaction, with the relative voting power of each such
continuing holder compared to the voting power of each other continuing
holder not substantially altered as a result of the transaction;
provided that, for purposes of this paragraph (iii), such continuity of
ownership (and preservation of relative voting power) shall be deemed
to be satisfied if the failure to meet such 80% threshold (or to
substantially preserve such relative voting power) is due solely to the
acquisition of voting securities by an employee benefit plan of
PaineWebber or such surviving entity or of any subsidiary of
PaineWebber or such surviving entity;
(iv) the stockholders of PaineWebber approve a plan of
complete liquidation of PWG or an agreement for the sale or disposition
by PWG of all or substantially all of PWG's assets (or any transaction
having a similar effect); or
(v) any other event which the Board determines shall
constitute a Change in Control for purposes of the Plan.
(f) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, including regulations thereunder and successor provisions
thereto.
<PAGE> 3
3
(g) "Committee" shall mean a committee composed of at least two members
of the Board.
(h) "Effective Date" shall mean January 1, 1999.
(i) "EICP" shall mean the Paine Webber Group Inc. 1994 Executive
Incentive Compensation Plan, as amended and in effect immediately prior to the
Effective Date.
(j) "Eligible Employee" shall mean each executive officer of
PaineWebber, including those employed by subsidiaries, and other key executives
of PWG selected by the Committee.
(k) "ESAP" shall mean the Paine Webber Group Inc. 1994 Executive Stock
Award Plan, as amended from time to time and any successors thereto.
(l) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, including rules thereunder and successor provisions
and rules thereto.
(m) "Fair Market Value" shall mean the fair market value of Stock,
Awards or other property determined by the Committee or under procedures
established by the Committee. Unless otherwise determined by the Committee, the
fair market value of the Stock as of any given date shall be the mean between
the high and low sales prices of the Stock on the stock exchange or market on
which the Stock is primarily traded on the date as of which such value is being
determined.
(n) "Formula Award" shall mean that portion of the Award Pool payable
to a Participant as determined pursuant to Section 6.
(o) "GAAP" shall mean U.S. Generally Accepted Accounting Principles.
(p) "PaineWebber" shall mean Paine Webber Group Inc., a Delaware
corporation, and any entity that succeeds to all or substantially all of its
business.
(q) "Participant" shall mean an Eligible Employee designated by the
Committee to participate in the Plan for a designated Performance Period.
(r) "Performance Award" shall mean the right of a Participant to
receive Stock-Based Awards, cash or other property, or to have a risk of
forfeiture lapse or the right to exercise with respect thereto, following the
completion of a Performance Period based upon performance in respect of one or
more of the Performance Goals during such Performance Period, as specified in
Section 7.
(s) "Performance Goals" shall mean any of the following business
criteria: (1) net earnings; (2) fully diluted earnings per common share; (3)
return on average
<PAGE> 4
4
common equity; and (4) pre-tax income. A Performance Goal may be measured over a
Performance Period on a periodic, annual, cumulative or average basis and may be
established on a corporate-wide basis or established with respect to one or more
operating units, divisions, subsidiaries, acquired businesses, minority
investments, partnerships or joint ventures. Unless otherwise determined by the
Committee by no later than the earlier of the date that is ninety days after the
commencement of the Performance Period or the day prior to the date on which
twenty-five percent of the Performance Period has elapsed, the Performance Goals
will be determined by not accounting for a change in GAAP during a Performance
Period.
(t) "Performance Objective" shall mean the level or levels of
performance required to be attained with respect to specified Performance Goals
in order that a Participant shall become entitled to specified rights in
connection with a Performance Award.
(u) "Performance Period" shall mean the calendar year, or such other
shorter or longer period designated by the Committee, during which performance
will be measured in order to determine a Participant's entitlement to receive
payment of an Award.
(v) "Plan" shall mean this Paine Webber Group Inc. 1999 Executive
Incentive Compensation Plan, as amended from time to time.
(w) "PWG" shall mean PaineWebber and any corporation which is or
hereafter becomes a subsidiary of PaineWebber within the meaning of Section
424(f) of the Code.
(x) "SAP" shall mean the Paine Webber Group Inc. 1994 Stock Award Plan,
as amended from time to time and any successors thereto.
(y) "Stock" shall mean PaineWebber's common stock, par value $1.00 per
share, or such other securities as may be substituted for Stock under the ESAP.
(z) "Stock-Based Awards" shall mean the following types of awards: (i)
for purposes of Sections 6 and 7 of the Plan, restricted stock granted under
Section 6(d) of the ESAP or the SAP, restricted units granted under Section 6(e)
of the ESAP or the SAP, bonus stock granted under Section 6(f) of the ESAP or
the SAP and other-stock based awards under Section 6(h) of the ESAP or the SAP
that are denominated in shares of Stock and (ii) for purposes of Section 7 of
the Plan, options granted under Section 6(b) of the ESAP or the SAP.
3. Administration.
(a) Authority. The Plan shall be administered by the Committee. The
Committee is authorized, subject to the provisions of the Plan, in its sole
discretion, from time to time to select Participants; to grant Awards under the
Plan; to determine the type,
<PAGE> 5
5
terms and conditions of, and all other matters relating to, Awards; to prescribe
Award agreements (which need not be identical); to establish, modify or rescind
such rules and regulations as it deems necessary for the proper administration
of the Plan; and to make such determinations and interpretations and to take
such steps in connection with the Plan or the Awards granted thereunder as it
deems necessary or advisable. All such actions by the Committee under the Plan
or with respect to the Awards granted thereunder shall be final and binding on
all persons.
(b) Manner of Exercise of Committee Authority. The Committee may
delegate its responsibility with respect to the administration of the Plan to
one or more officers of PWG, to one or more members of the Committee or to one
or more members of the Board; provided, however, that the Committee may not
delegate its responsibility (i) to make Awards to executive officers of
PaineWebber; (ii) to make Awards which are intended to constitute "qualified
performance-based compensation" under Section 162(m) of the Code; or (iii) to
certify the allocation of the Award Pool pursuant to Section 6(b) or the
satisfaction of Performance Objectives pursuant to Section 7(e) in accordance
with Section 162(m) of the Code. The Committee may also appoint agents to assist
in the day-to-day administration of the Plan and may delegate the authority to
execute documents under the Plan to one or more members of the Committee or to
one or more officers of PWG.
(c) Limitation of Liability. The Committee may appoint agents to assist
it in administering the Plan. The Committee and each member thereof shall be
entitled to, in good faith, rely or act upon any report or other information
furnished to him or her by any officer or employee of PWG, PWG's independent
certified public accountants, consultants or any other agent assisting in the
administration of the Plan. Members of the Committee and any officer or employee
of PWG acting at the direction or on behalf of the Committee shall not be
personally liable for any action or determination taken or made in good faith
with respect to the Plan, and shall, to the extent permitted by law, be fully
indemnified and protected by PWG with respect to any such action or
determination.
4. Stock Subject to the Plan. An Award may relate to or be paid in
Stock-Based Awards only if and to the extent authorized by the Board or the
committee which then administers the ESAP or the SAP, in which case the shares
of Stock issued in connection with such Stock-Based Awards shall count against
the aggregate number of shares of Stock available for issuance under the ESAP or
the SAP (whichever is the source of shares) in accordance with the applicable
provisions of the ESAP and the SAP, as the case may be.
5. Types of Awards. Subject to the provisions of the Plan, the
Committee has the discretion to grant to Participants Formula Awards described
in Section 6, Performance Awards described in Section 7 or both in respect of
any Performance Period.
6. Formula Awards.
<PAGE> 6
6
(a) Creation of Award Pool. The Award Pool for each Performance Period
shall equal 4.5% of Annual Profits in excess of $100 million and up to $870
million plus 5.5% of Annual Profits in excess of $870 million.
(b) Allocation of Award Pool. Prior to, or reasonably promptly
following the inception of, a Performance Period but, to the extent required by
Section 162(m) of the Code, by no later than the earlier of ninety days after
the commencement of the Performance Period or the day prior to the date on which
twenty-five percent of the Performance Period has elapsed, the Committee shall
allocate in writing, on behalf of each Eligible Employee designated as a
Participant to receive a Formula Award pursuant to Section 5 of the Plan for
such Performance Period, a portion of the Award Pool (not to exceed 33% on
behalf of any Participant) to be paid for such Performance Period.
(c) Adjustments. The Committee is authorized at any time during or
after a Performance Period to reduce or eliminate the Award Pool or the portion
of the Award Pool allocated to any Participant for any reason, including changes
in the position or duties of any Participant with PWG during or after a
Performance Period, whether due to any termination of employment (including
death, disability, retirement, voluntary termination, or termination with or
without cause) or otherwise. In addition, to the extent necessary to preserve
the intended economic effects of the Plan to PWG and the Participants, the
Committee shall adjust the calculation of Annual Profits, the Award Pool, the
allocations thereunder or any combination thereof to take into account: (i) a
change in corporate capitalization, (ii) a corporate transaction, such as any
merger of PaineWebber or any subsidiary into another corporation, any
consolidation of PaineWebber or any subsidiary into another corporation, any
separation of PaineWebber or any subsidiary (including a spinoff or the
distribution of stock or property of PaineWebber or any subsidiary), any
reorganization of PaineWebber or any subsidiary (whether or not such
reorganization comes within the definition of Section 368 of the Code), (iii)
any partial or complete liquidation of PaineWebber or any subsidiary or a large,
special and non-recurring dividend paid or distributed by PaineWebber, or (iv) a
change in accounting or other relevant rules or regulations; provided, however,
that no adjustment hereunder shall be authorized or made if and to the extent
that the Committee determines that such authority or the making of such
adjustment would cause the Formula Awards to fail to qualify as "qualified
performance-based compensation" under Section 162(m) of the Code.
(d) Payment of Formula Awards.
(i) Following the completion of each Performance Period, the Committee
shall certify in writing, in accordance with the requirements of Section 162(m)
of the Code, the amount of the Award Pool, if any, and the Formula Awards, if
any, payable to Participants. Unless the Committee determines otherwise, no
amounts payable in respect of the Formula Awards shall be paid for a Performance
Period until the Performance Period has ended and the Committee has certified
the amount of the Formula Awards payable for the Performance Period in
accordance with this Section 6(d).
<PAGE> 7
7
(ii) Except as provided below, each Participant shall receive payment,
in a cash lump sum, of his or her Formula Award as soon as practicable following
the determination in respect thereof made pursuant to this Section 6(d).
(iii) The Committee may specify, either before or after completion of
any Performance Period, that all or a portion of any Formula Award shall be paid
by issuance or delivery of Stock-Based Awards in accordance with Section 4. Such
Stock-Based Awards shall be valued in relation to the cash value of the Formula
Award that would otherwise have been payable as determined by the Committee,
provided that the aggregate value of the payment of the Formula Award shall not
exceed the limitation set forth in Section 6(b). Such Stock-Based Awards shall
be subject to such terms and conditions as shall be specified by the Committee,
which include but are not limited to the deferral of Stock delivery and
restrictions on transferability.
(iv) Subject to such terms, conditions and administrative guidelines as
the Committee shall specify from time to time, a Participant shall have the
right to elect to defer receipt of part or all of any payment due with respect
to a Formula Award.
(v) In the event of a Change in Control, the Award Pool shall be
computed as if the Performance Period ended immediately prior to the Change in
Control, and the Award Pool shall be computed by annualizing the amount of the
Annual Profits achieved during such Performance Period. Notwithstanding Section
6(c), in the event of a Change in Control, the Committee shall not be authorized
to reduce or eliminate the Award Pool or the portion of the Award Pool allocated
to any Participant; provided that a Participant's Formula Award to which he or
she would otherwise be entitled shall be multiplied by a fraction, the numerator
of which is the number of days in the Performance Period prior to the Change in
Control and the denominator of which is the total number of days in the
Performance Period as originally specified. Any resulting amount hereunder due
to a Participant shall be paid in a cash lump sum no later than fifteen days
after a Change in Control, unless the Participant has previously elected to
defer receipt of such amounts notwithstanding a Change in Control.
7. Performance Awards.
(a) Form of Award. The Committee is authorized to grant Performance
Awards pursuant to this Section 7. A Performance Award shall represent the
conditional right of the Participant to receive cash, Stock-Based Awards, or
other property, or to have a risk of forfeiture lapse or a right to exercise
with respect thereto, based upon achievement of one or more pre-established
Performance Objectives during a Performance Period, subject to the terms of this
Section 7 and the other applicable terms of the Plan. Performance Awards shall
be subject to such conditions, including deferral of settlement, risks of
forfeiture, restrictions on transferability and other terms and conditions as
shall be specified by the Committee.
<PAGE> 8
8
(b) Performance Objectives. The Committee shall establish the
Performance Objective for each Performance Award, consisting of one or more
business criteria permitted as Performance Goals hereunder, one or more levels
of performance with respect to each such criteria, and the amount or amounts
payable or other rights that the Participant will be entitled to upon
achievement of such levels of performance. The Performance Objective shall be
established by the Committee prior to, or reasonably promptly following the
inception of, a Performance Period but, to the extent required by Section 162(m)
of the Code, by no later than the earlier of the date that is ninety days after
the commencement of the Performance Period or the day prior to the date on which
twenty-five percent of the Performance Period has elapsed.
(c) Additional Provisions Applicable to Performance Awards. More than
one Performance Goal may be incorporated in a Performance Objective, in which
case achievement with respect to each Performance Goal may be assessed
individually or in combination with each other. The Committee may, in connection
with the establishment of Performance Objectives for a Performance Period,
establish a matrix setting forth the relationship between performance on two or
more Performance Goals and the amount of the Performance Award payable for that
Performance Period. The level or levels of performance specified with respect to
a Performance Goal may be established in absolute terms, as objectives relative
to performance in prior periods, as an objective compared to the performance of
one or more comparable companies or an index covering multiple companies, or
otherwise as the Committee may determine. Performance Objectives shall be
objective and shall otherwise meet the requirements of Section 162(m) of the
Code, including that the Performance Goals be "substantially uncertain" at the
time of their establishment. Performance Objectives may differ for Performance
Awards granted to any one Participant or to different Participants.
(d) Duration of the Performance Period. The Committee shall establish
the duration of each Performance Period at the time that it sets the Performance
Objectives applicable to that Performance Period. The Committee shall be
authorized to permit overlapping or consecutive Performance Periods.
(e) Certification. Following the completion of each Performance Period,
the Committee shall certify in writing, in accordance with the requirements of
Section 162(m) of the Code, whether the Performance Objective and other material
terms for paying amounts in respect of each Performance Award related to that
Performance Period have been achieved or met. Unless the Committee determines
otherwise, Performance Awards shall not be settled until the Committee has made
the certification specified under this Section 7(e).
(f) Adjustment. The Committee is authorized at any time during or after
a Performance Period to reduce or eliminate the Performance Award of any
Participant for any reason, including changes in the position or duties of any
Participant with PWG during or after a Performance Period, whether due to any
termination of employment (including death, disability, retirement, voluntary
termination or termination with or
<PAGE> 9
9
without cause) or otherwise. In addition, to the extent necessary to preserve
the intended economic effects of the Plan to PWG and the Participants, the
Committee shall adjust Performance Objectives, the Performance Awards or both to
take into account: (i) a change in corporate capitalization, (ii) a corporate
transaction, such as any merger of PaineWebber or any subsidiary into another
corporation, any consolidation of PaineWebber or any subsidiary into another
corporation, any separation of PaineWebber or any subsidiary (including a
spinoff or the distribution of stock or property of PaineWebber or any
subsidiary), any reorganization of PaineWebber or any subsidiary or a large,
special and non-recurring dividend paid or distributed by PaineWebber (whether
or not such reorganization comes within the definition of Section 368 of the
Code), (iii) any partial or complete liquidation of PaineWebber or any
subsidiary or (iv) a change in accounting or other relevant rules or regulations
(any adjustment pursuant to this Clause (iv) shall be subject to the timing
requirements of the last sentence of Section 2(s) of the Plan); provided,
however, that no adjustment hereunder shall be authorized or made if and to the
extent that the Committee determines that such authority or the making of such
adjustment would cause the Performance Awards to fail to qualify as "qualified
performance-based compensation" under Section 162(m) of the Code.
(g) Timing of Payment. Except as provided below, any cash amounts
payable in respect of Performance Awards for a Performance Period will generally
be paid as soon as practicable following the determination in respect thereof
made pursuant to Section 7(e), and any non-cash amounts or any other rights that
the Participant is entitled to with respect to a Performance Award for a
Performance Period will be paid or vest in accordance with the terms of the
Performance Award.
(h) Deferral of Payments. Subject to such terms, conditions and
administrative guidelines as the Committee shall specify from time to time, a
Participant shall have the right to elect to defer receipt of part or all of any
payment due with respect to a Performance Award.
(i) Maximum Amount Payable Per Participant Under This Section 7. With
respect to Performance Awards that are settled through the grant of Stock-Based
Awards under the ESAP or the SAP, a Participant shall not be granted Performance
Awards for all of the Performance Periods commencing in a calendar year that
permit the Participant to earn Stock-Based Awards covering more than 675,000
shares of Stock for each type of Stock-Based Award under the ESAP and the SAP,
subject to adjustment if and to the extent that the per-person limitation on
shares set forth in the ESAP is adjusted in connection with a Stock split, Stock
dividend, or other extraordinary transaction affecting the Stock (the "Share
Limit"). In addition, separate and apart from the limit in the previous
sentence, with respect to Performance Awards to be settled in cash and not
relating to Stock-Based Awards, a Participant shall not be granted Performance
Awards for all of the Performance Periods commencing in a calendar year that
permit the Participant in the aggregate to earn a cash payment in excess of the
Fair Market Value of the Share Limit as of the first day of the first
Performance Period commencing in such calendar year.
<PAGE> 10
10
(j) Change In Control. In the event of a Change in Control, any
incomplete Performance Periods applicable to Performance Awards under this
Section 7 in effect on the date the Change in Control occurs shall end on the
date of such change, and the Committee shall (i) determine the extent to which
the Performance Objectives with respect to such Performance Periods shall have
been met based on such audited or unaudited financial information then available
as it deems necessary, and (ii) cause to be paid to each Participant partial or
full Performance Awards with respect to the Performance Periods based on the
Committee's determination of the degree of attainment of the Performance
Objectives. Notwithstanding Section 7(f), in the event of a Change in Control,
the Committee shall not be authorized to reduce or eliminate the Performance
Award; provided that a Participant's Performance Award to which he or she would
otherwise be entitled shall be multiplied by a fraction, the numerator of which
is the number of days in the Performance Period prior to the Change in Control
and the denominator of which is the total number of days in the Performance
Period as originally specified. Any resulting amount hereunder due to a
Participant shall be paid in a cash lump sum no later than fifteen days after a
Change in Control, unless the Participant has previously elected to defer
receipt of such amounts notwithstanding a Change in Control.
8. General Provisions.
(a) Termination of Employment. In the event a Participant terminates
employment for any reason during a Performance Period or prior to the Award
payment, he or she (or his or her beneficiary, in the case of death) shall not
be entitled to receive any Award for such Performance Period unless the
Committee, in its sole and absolute discretion, elects to pay an Award to such
Participant.
(b) Death of the Participant. Subject to Section 8(a), in the event of
the death of a Participant, any payments hereunder due to such Participant shall
be paid to his or her beneficiary as designated in writing to the Committee or,
failing such designation, to his or her estate. No beneficiary designation shall
be effective unless it is in writing and received by the Committee prior to the
date of death of the Participant.
(c) Taxes. PWG is authorized to withhold from any Award granted, any
payment relating to an Award under the Plan, including from a distribution of
Stock, or any payroll or other payment to a Participant, amounts of withholding
and other taxes due in connection with any transaction involving an Award, and
to take such other action as the Committee may deem advisable to enable PWG and
Participants to satisfy obligations for the payment of withholding taxes and
other tax obligations relating to any Award. This authority shall include
authority for PWG to withhold or receive Stock or other property and to make
cash payments in respect thereof in satisfaction of a Participant's tax
obligations, either on a mandatory or elective basis in the discretion of the
Committee.
(d) Limitations on Rights Conferred under Plan and Beneficiaries.
Neither status as a Participant nor receipt or completion of a deferral election
form shall be
<PAGE> 11
11
construed as a commitment that any Award will become payable under the Plan.
Nothing contained in the Plan or in any documents related to the Plan or to any
Award shall confer upon any Eligible Employee or Participant any right to
continue as an Eligible Employee, Participant or in the employ of PWG or
constitute any contract or agreement of employment, or interfere in any way with
the right of PWG to reduce such person's compensation, to change the position
held by such person or to terminate the employment of such Eligible Employee or
Participant, with or without cause, but nothing contained in this Plan or any
document related thereto shall affect any other contractual right of any
Eligible Employee or Participant. No benefit payable under, or interest in, this
Plan shall be transferable by a Participant except by will or the laws of
descent and distribution or otherwise be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or charge.
(e) Changes to the Plan and Awards. Notwithstanding anything herein to
the contrary, the Board, or a committee designated by the Board, may, at any
time, terminate or, from time to time, amend, modify or suspend the Plan and the
terms and provisions of any Award theretofore granted to any Participant which
has not been settled (either by payment or deferral). No Award may be granted
during any suspension of the Plan or after its termination. Any such amendment
may be made without stockholder approval.
(f) Unfunded Status of Awards; Creation of Trusts. The Plan is intended
to constitute an "unfunded" plan for incentive and deferred compensation. With
respect to any amounts payable to a Participant pursuant to an Award, nothing
contained in the Plan (or in any documents related thereto), nor the creation or
adoption of the Plan, the grant of any Award, or the taking of any other action
pursuant to the Plan shall give any such Participant any rights that are greater
than those of a general creditor of PWG; provided that the Committee may
authorize the creation of trusts and deposit therein cash, Stock, or other
property or make other arrangements, to meet PWG's obligations under the Plan.
Such trusts or other arrangements shall be consistent with the "unfunded" status
of the Plan unless the Committee otherwise determines with the consent of each
affected Participant. The trustee of such trusts may be authorized to dispose of
trust assets other than Stock and reinvest the proceeds in alternative
investments, subject to such terms and conditions as the Committee may specify
in accordance with applicable law.
(g) Non-Exclusivity of the Plan. Neither the adoption of the Plan by
the Board (or a committee designated by the Board) nor submission of the Plan or
provisions thereof to the stockholders of PaineWebber for approval shall be
construed as creating any limitations on the power of the Board to adopt such
other incentive arrangements as it may deem necessary.
(h) Governing Law. The validity, construction, and effect of the Plan,
any rules and regulations relating to the Plan, and any Award shall be
determined in accordance with the laws of the State of Delaware, without giving
effect to principles of conflicts of laws, and applicable Federal law.
<PAGE> 12
12
(i) Exemption Under Section 162(m) of the Code. The Plan, and all
Awards issued thereunder, are intended to be exempt from the application of
Section 162(m) of the Code, which restricts under certain circumstances the
Federal income tax deduction for compensation paid by a public company to named
executives in excess of $1 million per year. The Committee may, without
stockholder approval, amend the Plan retroactively or prospectively to the
extent it determines necessary in order to comply with any subsequent
clarification of Section 162(m) of the Code required to preserve PWG's Federal
income tax deduction for compensation paid pursuant to the Plan.
(j) Effective Date. The Plan, as amended and restated, is effective on
the Effective Date, subject to subsequent approval thereof by PaineWebber's
stockholders at the first annual meeting of stockholders to occur after the
Effective Date, and shall remain in effect until it has been terminated pursuant
to Section 8(e). If the Plan is not approved by the stockholders at such annual
meeting, the Plan and all interests in the Plan awarded to Participants before
the date of such annual meeting shall be void ab initio and of no further force
and effect. Subject to the approval of the Plan by the stockholders of
PaineWebber in accordance with the first sentence of this Section 8(j), as of
the date of stockholder approval, the Plan shall replace the EICP; provided,
however, that awards granted under the EICP prior to the date of stockholder
approval shall remain outstanding in accordance with their applicable terms and
provisions. No awards may be granted under the EICP after the date of
stockholder approval of the Plan. Any awards granted under the EICP between the
Effective Date and the date of stockholder approval will be treated as awards
granted under this Plan for purposes of Section 4. Unless PaineWebber determines
to submit Section 7 of the Plan and the definition of "Performance Goal" to
PaineWebber's stockholders at the first stockholder meeting that occurs in the
fifth year following the year in which the Plan was last approved by
stockholders (or any earlier meeting designated by the Board), in accordance
with the requirements of Section 162(m) of the Code, and such stockholder
approval is obtained, then no further Performance Awards shall be made under
Section 7 after the date of such annual meeting, but the remainder of the Plan
shall continue in effect until terminated in accordance with Section 8(e).
<PAGE> 1
EXHIBIT 12.1
PAINE WEBBER GROUP INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
Years Ended December 31,
------------------------------------------------------------------------------------------
1999(1) 1998(1) 1997(1) 1996(1) 1995
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Income before taxes $1,002,558 $ 682,763 $ 644,075 $ 558,999 $ 102,677
---------- ---------- ---------- ---------- ----------
Fixed charges:
Interest 2,564,822 2,876,712 2,573,582 1,971,788 1,969,811
Interest factor in rents 61,322 56,139 53,665 54,537 59,491
---------- ---------- ---------- ---------- ----------
Total fixed charges 2,626,144 2,932,851 2,627,247 2,026,325 2,029,302
---------- ---------- ---------- ---------- ----------
Income before taxes and
fixed charges $3,628,702 $3,615,614 $3,271,322 $2,585,324 $2,131,979
========== ========== ========== ========== ==========
Ratio of earnings to fixed charges 1.4 1.2 1.2 1.3 1.1
========== ========== ========== ========== ==========
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, "earnings"
consist of income before taxes and fixed charges. "Fixed charges" consist
principally of interest expense incurred on securities sold under agreements to
repurchase, short-term borrowings, long-term borrowings, preferred trust
securities and that portion of rental expense estimated to be representative of
the interest factor.
(1) Income before taxes includes minority interest in wholly owned subsidiary
trusts.
<PAGE> 1
EXHIBIT 12.2
PAINE WEBBER GROUP INC.
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED
STOCK DIVIDENDS
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
Years Ended December 31,
------------------------------------------------------------------------------------------
1999(1) 1998(1) 1997(1) 1996(1) 1995
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Income before taxes $1,002,558 $ 682,763 $ 644,075 $ 558,999 $ 102,677
---------- ---------- ---------- ---------- ----------
Preferred stock dividends 129,689(2) 35,433 44,186 43,712 36,260
---------- ---------- ---------- ---------- ----------
Fixed charges:
Interest 2,564,822 2,876,712 2,573,582 1,971,788 1,969,811
Interest factor in rents 61,322 56,139 53,665 54,537 59,491
---------- ---------- ---------- ---------- ----------
Total fixed charges 2,626,144 2,932,851 2,627,247 2,026,325 2,029,302
---------- ---------- ---------- ---------- ----------
Total fixed charges and preferred
Stock dividends 2,755,833 2,968,284 2,671,433 2,070,037 2,065,562
---------- ---------- ---------- ---------- ----------
Income before taxes and fixed charges $3,628,702 $3,615,614 $3,271,322 $2,585,324 $2,131,979
========== ========== ========== ========== ==========
Ratio of earnings to fixed charges
and preferred stock dividends 1.3 1.2 1.2 1.2 1.0
========== ========== ========== ========== ==========
</TABLE>
For purposes of computing the ratio of earnings to combined fixed charges and
preferred stock dividends (tax effected), "earnings" consist of income before
taxes and fixed charges. "Fixed charges" consist principally of interest
expense incurred on securities sold under agreements to repurchase,
short-term borrowings, long-term borrowings, preferred trust securities and
that portion of rental expense estimated to be representative of the interest
factor.
(1) Income before taxes includes minority interest in wholly owned subsidiary
trusts.
(2) Amount includes a charge to equity of $59,883 resulting from the redemption
of preferred stock on December 16, 1999.
<PAGE> 1
MANAGEMENT'S DISCUSSION AND ANALYSIS
>> BUSINESS DESCRIPTION -- PAINE WEBBER GROUP INC. ("PWG") IS A HOLDING COMPANY
WHICH, TOGETHER WITH ITS OPERATING SUBSIDIARIES (COLLECTIVELY, THE "COMPANY"),
FORMS ONE OF THE LARGEST FULL-SERVICE SECURITIES FIRMS IN THE U.S. FOUNDED IN
1879, THE COMPANY EMPLOYS APPROXIMATELY 19,620 PEOPLE IN 315 OFFICES WORLDWIDE.
The Company's principal line of business is to serve the investment and capital
needs of individual and institutional clients through its broker-dealer
subsidiary, PaineWebber Incorporated ("PWI"), and other specialized
subsidiaries. The Company's business activities are divided along two operating
segments: Individual and Institutional. The Individual segment provides
financial products and services to individual clients and includes principally
the Private Client Group, Asset Management, and Transaction Services groups. The
Institutional segment delivers similar products and services to institutional
clients and includes the Capital Markets group. These interrelated business
groups utilize common operational and administrative personnel and facilities.
The Company holds memberships in the major securities and commodities exchanges
in the United States, and makes a market in many securities traded on the
National Association of Securities Dealers Automated Quotation system ("NASDAQ")
or in other over-the-counter markets.
The Private Client Group consists primarily of a domestic branch office system
and consumer product groups through which PWI and certain other subsidiaries
provide clients with financial services and products, including the purchase and
sale of securities, option contracts, commodity and financial futures contracts,
fixed income instruments, mutual funds, trusts, wrap-fee products, and selected
insurance products. The Company may act as principal or agent in providing these
services. Fees charged vary according to the size and complexity of a
transaction, and the activity level of a client's account. Also part of the
Private Client Group is the Municipal Securities Group, which structures,
underwrites, sells and trades taxable and tax-exempt issues for municipal and
public agency clients.
The Asset Management group is comprised of Mitchell Hutchins Asset Management
Inc., which includes the Mitchell Hutchins Investment Advisory division,
Mitchell Hutchins Institutional Investors Inc., NewCrest Advisors Inc. and DSI
International Management, Inc. The Asset Management group provides investment
advisory and portfolio management services to mutual funds, institutions,
pension funds, endowment funds, individuals and trusts.
The Transaction Services group includes the correspondent services, prime
brokerage and securities lending businesses, as well as floor trading
operations. Through Correspondent Services Corporation [csc], the Company
provides execution and clearing services to correspondent broker-dealers to
support transactions for their individual customers.
Capital Markets is comprised of Research, Global Fixed Income, Global Equities,
Commercial Real Estate and Investment Banking.
The Research group provides investment advice to institutional and individual
investors, and other business areas of the Company, covering approximately 800
companies in 52 industries.
Through the Global Fixed Income and Global Equities groups, the Company places
securities for, and executes trades on behalf of, institutional clients both
domestically and internationally. The Company also takes positions in fixed
income securities, listed and over-the-counter equity securities to facilitate
client transactions or for its own account. As part of the Company's principal
investing activities, the Company holds private debt and equity investments and
direct equity investments in partnerships and other entities that invest in
fixed income securities, equity securities and other financial instruments.
The Commercial Real Estate group provides a full range of capital market
services to real estate clients, including underwriting of debt and
>> PAINEWEBBER /25
<PAGE> 2
MANAGEMENT'S DISCUSSION AND ANALYSIS
equity securities, principal lending, debt restructuring, property sales and
bulk sales services, and a broad range of other advisory services.
Through the Investment Banking group, the Company provides financial advice to,
and raises capital for, a broad range of domestic and international corporate
clients. Investment Banking manages and underwrites public and private
offerings, participates as an underwriter in syndicates of public offerings
managed by others, and provides advice in connection with mergers and
acquisitions, restructurings and recapitalizations.
The Company's businesses operate in some of the most highly regulated
industries. Violations of applicable regulations can result in the revocation of
broker-dealer or futures commission merchant licenses, the imposition of
censures or fines, and the suspension or expulsion of a firm, its officers or
employees. The Company's businesses are regulated by various agencies, including
the Securities and Exchange Commission ("SEC"), the New York Stock Exchange
("NYSE"), the Commodity Futures Trading Commission ("CFTC"), the National
Association of Securities Dealers, and the Securities and Futures Authority.
The Company's principal business activities are, by their nature, affected by
many factors, including general economic and financial conditions, the level and
volatility of interest rates, currency and security valuations, competitive
conditions, counterparty risk, transactional volume, market liquidity and
technological changes. As a result, revenues and profitability have been in the
past, and are likely to continue to be, subject to fluctuations reflecting the
impact of these factors.
Certain statements included in this discussion and in other parts of
this annual report include "forward-looking statements" that involve known and
unknown risks and uncertainties including (without limitation) those mentioned
above, the impact of current, pending and future legislation and regulation, and
other risks and uncertainties. Actual results could differ materially from those
projected in the forward-looking statements. The Company disclaims any
obligation or undertaking to update publicly or revise any forward-looking
statements.
GENERAL BUSINESS ENVIRONMENT
The business environment was generally favorable in 1999, and less volatile than
in 1998. The domestic economic background was positive as the U.S. Real Gross
Domestic Product increased 4.0 percent, versus 4.3 percent in 1998, and
inflation, as measured by the Consumer Price Index, was 2.7 percent, versus the
1998 rate of 1.6 percent. The S&P 500 Index appreciated 20 percent in 1999,
versus 27 percent in 1998, and the NASDAQ Composite Index rose 86 percent,
versus 40 percent in 1998. The yield on the thirty-year U.S. Treasury bond rose
from 5.09 percent at the end of 1998 to 6.48 percent at the end of 1999.
Many indicators of the securities industry's health were positive. Average daily
volume increased approximately 20 percent on the NYSE and approximately 33
percent on the NASDAQ. The value of U.S. mergers and acquisitions increased over
7 percent while total U.S. debt and equity offerings declined only slightly, or
1.5 percent, from 1998 levels. The net flow of capital into U.S. equity mutual
funds in 1999 was $187.5 billion, up 18.1 percent from $158.8 billion in 1998.
Financial markets were considerably less volatile in 1999 than 1998, when
investors were alarmed by economic weakness in foreign economies (particularly
Asia), by the default of Russia on its external obligations, and by weaker U.S.
corporate profit growth. Financial markets did not experience problems of
comparable magnitude in 1999. With economic growth improving outside the U.S.
and commodity prices trending up, corporate profit growth improved. Operating
profits of the S&P 500 increased approximately 14 percent in 1999. Responding to
the positive trend in global economic growth, the Federal Reserve tightened
monetary policy during 1999, with the federal funds rate rising from 4.75
percent to 5.5 percent between June and November. This rise in the federal funds
rate, combined with generally rising commodity prices, continued strong economic
growth in the U.S., and improving economic growth in many foreign economies, led
to the aforementioned 139 basis point rise in the yield on the thirty-year U.S.
Treasury bond during 1999.
RESULTS OF OPERATIONS
1999 Compared with 1998
Net income for the year ended December 31, 1999 was a record $628.6 million, a
45 percent increase over the previous record of $433.6 million earned during the
year ended December 31, 1998. Earnings per common share were a record $4.18 per
basic share ($3.95 per diluted share) for the year ended December 31, 1999
before giving effect to a charge to stockholders' equity of $59.9 million
resulting from the redemption of the Company's preferred stock during the fourth
quarter. The charge to stockholders' equity reflects the difference between the
par value and the carrying value of the preferred stock as of the December 16,
1999 redemption date and although not affecting net income, reduced earnings per
common share by $0.41 per basic share ($0.39 per diluted share) for the year
ended December 31, 1999. Including the charge, earnings per common share were
>> PAINEWEBBER / 26
<PAGE> 3
MANAGEMENT'S DISCUSSION AND ANALYSIS
$3.77 per basic share ($3.56 per diluted share) for the year ended December 31,
1999. Earnings per common share for the prior year period were $2.91 per basic
share ($2.72 per diluted share).
Revenues, net of interest expense, were a record $5,290.2 million for 1999, an
increase of 20 percent from the previous record $4,405.1 million in 1998.
Commission revenues earned during 1999 were a record $1,949.0 million, 19
percent higher than the previous record $1,641.3 million earned in 1998,
reflecting increases in both individual and institutional businesses.
Commissions on listed securities and options increased $122.7 million, or 12
percent, mutual fund and insurance commissions increased $106.5 million, or 24
percent, and commissions from over-the-counter securities and other commissions
increased $78.5 million, or 37 percent.
Principal transactions revenues increased to a record $1,110.1 million, or 28
percent higher than the 1998 level of $868.8 million driven by improved results
in taxable fixed income, equities and municipals. The increase was in large part
due to the improved market and economic conditions experienced during 1999
relative to the volatile conditions experienced during the second half of 1998.
For financial reporting purposes, principal transactions revenues include
realized and unrealized gains and losses on trading positions and principal
investing activities, including hedges. In assessing the profitability of its
trading activities, the Company views net interest and principal transactions
revenues in the aggregate.
Asset management fees increased to a record $911.1 million, 28 percent higher
than the previous record of $713.6 million primarily due to higher revenues
earned on managed accounts and proprietary mutual funds. Average assets in wrap
and trust accounts during 1999 were approximately 48 percent higher than during
1998. Average assets under management in money market, institutional and
long-term mutual funds increased to $62 billion during 1999 compared to $54
billion in 1998. At the end of 1999, total assets under management reached a
record $68.8 billion. Contributing to the increase was the introduction of the
PaineWebber Strategy Fund, a new equity fund managed by Mitchell Hutchins Asset
Management Inc. which raised $2.1 billion in assets. Also, in December 1999, the
Company acquired Decision Services Incorporated, an asset management firm
specializing in enhanced index portfolio management.
Investment banking revenues were a record $558.2 million, 5 percent higher than
the previous record $531.0 million earned during the prior year period,
reflecting increases in private placement and other fees partially offset by
declines in underwriting fees, management fees and selling concessions on lower
volume of lead-managed and co-managed corporate and municipal issues.
Contributing to the increase was the rise in mergers and acquisitions activity
during the year.
Other revenues increased to a record $171.0 million, 20 percent higher than the
1998 level of $142.2 million, primarily due to an increase in customer
transaction fees.
Net interest increased $82.6 million to a record $590.9 million, 16 percent
higher than the prior year record $508.2 million. The net increase was
principally due to an increased level of margin lending to clients during the
year and lower funding costs.
Compensation and benefit expenses for 1999 increased $448.2 million, or 17
percent, versus 1998. The number of employees increased by 1,853 or 10 percent,
during 1999, reflecting increases in Private Client Group financial advisors,
related financial advisor support personnel, and technology specialists hired to
implement the Company's technology initiatives. In addition, the Company's
improved operating results for the year resulted in higher production-based
compensation to Private Client Group financial advisors, and higher
performance-based compensation. The ratio of compensation and benefits as a
percentage of net revenues declined to 57.6 percent in 1999 versus 59.1 percent
in 1998, as the growth in net revenues exceeded the growth in these expenses.
All other operating expenses increased $117.1 million, or 11 percent, from 1998.
Office and equipment expenses increased $50.9 million, or 17 percent, due to an
increase in office space and equipment necessary to support the additional
headcount, as well as normal escalation charges, and higher depreciation
associated with the firm's technology initiatives. Also, the number of sales
offices increased from 303 at the end of 1998 to 315 at the end of 1999.
Business development expenses increased $19.4 million, or 19 percent, reflecting
higher costs associated with the Company's advertising campaign, PaineWebber
EDGE(R) and PaineWebber InsightOne(SM). Communications expenses increased $13.8
million from the prior year, or 9 percent, due to the Company's implementation
of advanced telecommunications technology related to the new fixed income and
equity trading floors and the new Consultworks platforms, as well as additional
headcount. Professional service fees increased $13.5 million, or 11 percent, due
principally
>> PAINEWEBBER / 27
<PAGE> 4
MANAGEMENT'S DISCUSSION AND ANALYSIS
to financial advisor and other employee recruiting fees. The Company's cost
containment efforts (including renegotiation of vendor contracts and review of
market data usage) continued and served to partially offset the expenses related
to growth initiatives noted above. Despite these increases, the Company's
non-compensation expenses as a percentage of net revenues declined to 22.8
percent compared to 24.7 percent for 1998, as the growth in net revenues
exceeded the growth in these expenses.
1998 COMPARED WITH 1997
Net income for the year ended December 31, 1998 was $433.6 million, a 4 percent
increase over the $415.4 million earned during the year ended December 31, 1997.
Earnings per common share were $2.91 per basic share ($2.72 per diluted share)
compared to $2.84 per basic share ($2.56 per diluted share) for the prior year
period. Revenues, net of interest expense, were $4,405.1 million for 1998, an
increase of 7 percent from the previous record $4,112.4 million in 1997.
Commission revenues earned during 1998 were $1,641.3 million. This was 10
percent higher than the $1,496.8 million earned in 1997, reflecting increases in
both individual and institutional businesses. Commissions on listed securities
and options increased $108.5 million, or 12 percent, mutual fund and insurance
commissions increased $22.7 million, or 5 percent, and commissions from
over-the-counter securities and other commissions increased $13.3 million, or 7
percent.
Revenues from principal transactions decreased $186.8 million, or 18 percent
from the 1997 level of $1,055.6 million. The decline was principally due to the
market volatility experienced during the second half of 1998. During 1998,
principal transactions revenues from equities and taxable fixed income declined
31.6 percent and 12.3 percent for the year, respectively, from the records
established in the previous year, while results were relatively constant for
municipal securities.
Asset management fees increased 31 percent to $713.6 million, primarily due to
higher revenues earned on managed accounts and proprietary mutual funds. Average
assets in wrap and trust accounts during 1998 were 40 percent higher than during
1997. Average assets under management in money market, institutional and
long-term mutual funds increased to $54 billion during 1998 compared to $47
billion in 1997. Contributing to the increase was the introduction of several
new Mitchell Hutchins Asset Management funds including the Managed High Yield
Fund and the LIR Select Fund.
Investment banking revenues were $531.0 million, 15 percent higher than the
$460.0 million earned during the prior year period, reflecting increases in
private placement and other fees, and underwriting fees, management fees and
selling concessions. Benefiting from the increased levels of activity
industry-wide, the Company increased its volume of lead-managed and co-managed
municipal issues, as well as increased mergers and acquisitions during the year.
Net interest increased $89.7 million, or 21 percent to $508.2 million. Interest
revenue was $3,352.7 million, 13 percent higher than the $2,963.1 million earned
in the prior year period due to an increased level of trading positions and
margin lending to clients during the year. Interest expense increased 12 percent
to $2,844.5 million, principally due to higher levels of securities sold under
agreements to repurchase, securities loaned and short-term borrowings during the
year.
Compensation and benefit expenses for 1998 increased $181.1 million, or 7
percent, versus 1997. The number of employees increased by 1,140 or 7 percent,
during 1998, reflecting an additional 702 Private Client Group financial
advisors, as well as related financial advisor support personnel and technology
support personnel. In addition, the Company's improved operating results for the
year resulted in higher production-based compensation to Private Client Group
financial advisors, and higher performance-based compensation. The ratio of
compensation and benefits as a percentage of net revenues remained relatively
constant at 59.1 percent in 1998 versus 58.9 percent in 1997.
All other operating expenses increased $69.7 million, or 7 percent, from 1997.
Office and equipment expenses increased $26.3 million, or 10 percent, due to an
increase in office space and equipment necessary to support the additional
headcount, as well as normal escalation charges. Business development expenses
increased $21.2 million, or 26 percent, reflecting higher advertising and
promotional expenditures, including the Company's new advertising campaign.
Brokerage, clearing and exchange fees and other expenses also increased
primarily due to increased levels of business. Offsetting these increases was a
reduction in professional services reflecting lower consulting expenses.
Communications expenses remained relatively flat compared to last year,
reflecting the firm's ongoing cost containment efforts (such as the review of
market data usage), which served to largely offset the effect of the increase in
headcount. The ratio of other operating expenses as a percentage of net revenues
remained relatively constant at 24.7 percent for 1998 versus 24.8 percent in
1997.
>> PAINEWEBBER / 28
<PAGE> 5
MANAGEMENT'S DISCUSSION AND ANALYSIS
INCOME TAXES
The effective income tax rate for the year ended December 31, 1999, increased to
36.1 percent from 34.9 percent in 1998 reflecting an increase in nondeductible
expenses and lower nontaxable interest. The effective income tax rate of 34.0
percent in 1997 was comparable to the 1998 rate.
LIQUIDITY AND CAPITAL RESOURCES
The primary objectives of the Company's funding policies are to insure ample
liquidity at all times and a strong capital base. These objectives are met by
maximization of self-funded assets, diversification of funding sources,
maintenance of prudent liquidity and capital ratios, and contingency planning.
LIQUIDITY
The Company maintains a highly liquid balance sheet with the majority of the
assets consisting of trading assets, securities purchased under agreements to
resell, securities borrowed, and receivables from clients, brokers and dealers,
which are readily convertible into cash. The nature of the Company's business as
a securities dealer results in carrying significant levels of trading assets and
liabilities in order to meet its client and proprietary trading needs. The
Company's total assets may fluctuate from period to period as the result of
changes in the level of trading positions held to facilitate client
transactions, the volume of resale and repurchase transactions, and proprietary
trading strategies. These fluctuations depend significantly upon economic and
market conditions, and transactional volume.
The Company's total assets increased to $61.6 billion at December 31, 1999 from
$54.2 billion at December 31, 1998. The increase is primarily attributable to an
increase in client receivables, securities borrowed and securities purchased
under agreements to resell. The majority of the Company's assets are financed by
daily operations such as securities sold under agreements to repurchase, free
credit balances in client accounts and securities lending activity. The Company
regularly reviews its mix of assets and liabilities to maximize self-funding.
Additional financing sources are available through bank loans and commercial
paper, committed and uncommitted lines of credit, and long-term borrowings.
The Company maintains committed and uncommitted credit facilities from a diverse
group of banks. The Company has a $1.2 billion unsecured revolving credit
agreement which extends through September 2000, with provisions for renewal
through 2001. Certain of the Company's subsidiaries also have a secured
revolving credit facility to provide up to an aggregate of $1.0 billion through
August 2000. The secured borrowings under this facility can be collateralized
using a variety of securities. The facilities are available for general
corporate purposes and are tested on a regular basis. At December 31, 1999,
there were no outstanding borrowings under either facility. Additionally, the
Company had $4.9 billion in uncommitted lines of credit at December 31, 1999.
The Company maintains public shelf registration statements with the SEC for the
issuance of debt securities of the Company and for the issuance of preferred
securities of PWG Capital Trusts III, IV and V ("Preferred Trust Securities"),
business trusts formed under Delaware law which are wholly owned subsidiaries of
the Company. At December 31, 1999, the Company had $1,038.6 million in debt
securities available for issuance under a shelf registration statement and
$706.2 million in Preferred Trust Securities and debt securities of the Company
available for issuance under another registration statement. (For further
discussion on the Preferred Trust Securities, see Note 5 in the Company's Notes
to Consolidated Financial Statements.)
Long-term borrowings at December 31, 1999 grew to $5,223.8 million from $4,255.8
million at December 31, 1998. This increase reflects the issuances of $525
million of 6.38 percent Notes in May 1999, $275 million of 7.63 percent Notes in
December 1999 and $618 million of Medium-Term Notes offset by the maturities of
$439.5 million of Medium-Term Notes. At December 31, 1999, $875.4 million of
long-term borrowings had maturity dates in 2000.
At the earliest redemption date of December 16, 1999, the Company redeemed
$250.0 million of 9 percent Redeemable Preferred Stock at par value. The
redemption resulted in a $59.9 million charge to stockholders' equity reflecting
the difference between the carrying value on the redemption date of $190.1
million and the par value of $250.0 million. Although the redemption did not
affect net income, earnings per common share were reduced by $0.41 per basic
share ($0.39 per diluted share).
The weighted-average maturity on all outstanding long-term borrowings and
Preferred Trust Securities at December 31, 1999 and 1998 was 7.2 years and 8.2
years, respectively.
CAPITAL RESOURCES AND CAPITAL ADEQUACY
The Company's businesses are capital intensive. In addition to a funding policy
that provides for diversification of funding sources and maximization of
liquidity, the Company maintains a strong capital base.
>> PAINEWEBBER / 29
<PAGE> 6
MANAGEMENT'S DISCUSSION AND ANALYSIS
The Company's total capital base, which includes long-term borrowings, Preferred
Trust Securities and stockholders' equity, grew to a record $8.5 billion at
December 31, 1999, an increase of $1.2 billion from the prior year. The growth
in total capital is due to the net increase in long-term borrowings of $968.0
million and a net increase in stockholders' equity of $478.3 million, offset by
the redemption of the $250.0 million Redeemable Preferred Stock.
During 1999, the Company issued 7.3 million shares of its common stock related
to employee compensation and stock purchase programs. Issuances and tax credits
related to these programs had the effect of increasing equity capital by $267.1
million. Offsetting these issuances was the repurchase of 7.3 million shares of
common stock at an aggregate cost of $270.6 million. At December 31, 1999, the
remaining number of shares of common stock authorized to be repurchased by the
Company's Board of Directors under the common stock repurchase program was 18.7
million. On February 3, 2000, the Company's Board of Directors authorized for
repurchase, in the open market or otherwise, an additional 18.0 million shares
of its common stock.
The Board of Directors declared quarterly cash dividends of $0.11 per share on
the Company's common stock during 1999. On February 3, 2000, the Board of
Directors declared a 2000 first quarter dividend of $0.12 per share, an increase
of 9 percent over the prior quarter, payable on April 5, 2000. Dividends were
also declared during 1999 on preferred stock.
PWI is subject to the net capital requirements of the SEC, the NYSE and the CFTC
which are designed to measure the financial soundness and liquidity of
broker-dealers. PWI has consistently maintained net capital in excess of the
minimum requirements imposed by these agencies. In addition, the Company has
other banking and securities subsidiaries, both domestic and foreign, which have
also consistently maintained net regulatory capital in excess of requirements.
MERCHANT BANKING AND HIGHLY LEVERAGED TRANSACTIONS
In connection with its merchant banking, principal investing, commercial real
estate, and asset finance activities, the Company has provided financing and
made investments in companies and other entities, some of which are involved in
highly leveraged transactions. Positions taken or commitments made by the
Company may involve credit or market risk from any one issuer or industry.
At December 31, 1999, the Company had investments which were affected by
liquidity, reorganization or restructuring issues amounting to $120.1 million,
net of reserves. These investments have not had a material effect on the
Company's results of operations. At December 31, 1999, the Company also had
commitments of $105.7 million to investment partnerships, which in turn had
commitments to invest in entities affected by restructuring issues, including
principally a commitment related to the Long-Term Credit Bank of Japan.
The Company's activities include underwriting and market-making transactions in
high-yield corporate debt and non-investment-grade mortgage-backed securities,
and emerging market securities (collectively, "high-yield securities"). These
securities generally involve greater risks than investment-grade corporate debt
securities because these issuers usually have high levels of indebtedness and
lower credit ratings and are, therefore, more vulnerable to general economic
conditions. At December 31, 1999, the Company held $327.5 million of high-yield
securities, with approximately 8 percent of such securities attributable to one
issuer. The Company continually monitors its risk positions associated with
high-yield securities and establishes limits with respect to overall market
exposure, industry group and individual issuer. The Company accounts for these
positions at fair value, with unrealized gains and losses reflected in principal
transactions revenues. These high-yield securities have not had a material
effect on the Company's results of operations.
CASH FLOWS
The Company's cash and cash equivalents at December 31, 1999 totaled $176.4
million, down $52.0 million from year-end 1998. Cash used for operating
activities was $710.4 million in 1999 primarily to fund the increase in client
receivables and in securities borrowed at December 31, 1999. Cash used for
investing activities in 1999 was $252.2 million, principally reflecting capital
expenditures on Private Client Group branch office expansions and renovations,
the Company's new broker workstations, and other technology initiatives. Cash
provided by financing activities was $910.6 million in 1999, primarily due to
increased long-term and short-term borrowings.
Cash and cash equivalents at December 31, 1998 totaled $228.4 million, down $5.4
million from year-end 1997. Cash used for operating and investing activities was
$324.9 million and $181.4 million, respectively, and cash provided by financing
activities was $500.9 million.
Cash and cash equivalents at December 31, 1997 totaled $233.8 million, down
$150.1 million from year-end 1996. Cash
>> PAINEWEBBER / 30
<PAGE> 7
MANAGEMENT'S DISCUSSION AND ANALYSIS
used for operating and investing activities was $778.8 million and $90.9
million, respectively, and cash provided by financing activities was $719.7
million.
DERIVATIVE FINANCIAL INSTRUMENTS
A derivative financial instrument is a contractual agreement between
counterparties that derives its value from changes in the value of some
underlying asset such as the price of another security, interest rates, currency
exchange rates, specified rates (e.g. LIBOR) or indices (e.g. S&P 500), or other
value referenced in the contract. Derivatives such as futures, certain options
contracts and structured products (e.g. indexed warrants) are traded on
exchanges, while derivatives such as forward contracts, certain options
contracts, interest rate swaps, caps and floors, and other structured products
are negotiated in over-the-counter markets.
In the normal course of business, the Company engages in a variety of derivative
transactions in connection with its proprietary trading activities and asset and
liability management, as well as on behalf of its clients. As a dealer, the
Company regularly makes a market in and trades a variety of securities. The
Company is also engaged in creating structured products that are sold to
clients. In connection with these activities, the Company attempts to reduce its
exposure to market risk by entering into offsetting hedging transactions, which
may include derivative financial instruments. The Company also enters into
interest rate swap contracts to manage the interest rate characteristics of its
assets and liabilities.
The notional amount of a derivative contract is used to measure the
volume of activity and is not reflected on the Consolidated Statements of
Financial Condition. The Company had off-balance-sheet derivative contracts
outstanding with gross notional amounts of $50.5 billion and $84.6 billion at
December 31, 1999 and 1998, respectively. These amounts included $30.9 billion
and $64.3 billion, respectively, related to "to be announced" mortgage-backed
securities requiring forward settlement. Also included in these amounts were
$4.2 billion and $3.1 billion notional amounts of interest rate swap agreements
used to change the interest rate characteristics of the Company's fixed rate
debt at December 31, 1999 and 1998, respectively. (For further discussion on the
Company's derivative financial instruments, see Notes 1, 4 and 8 in the
Company's Notes to Consolidated Financial Statements.)
The Company records any unrealized gains and losses on its derivative contracts
used in a trading capacity by marking-to-market the contracts on a daily basis.
The unrealized gain or loss is recorded on the Consolidated Statements of
Financial Condition with the related profit or loss reflected in principal
transactions revenues. The Company accrues interest income and expense on
interest rate swap agreements used to change the interest rate characteristics
of the Company's fixed rate debt. These interest rate swap agreements had the
effect of reducing net interest expense on the Company's fixed rate debt by
$22.6 million, $15.6 million and $11.0 million for the years ended December 31,
1999, 1998 and 1997, respectively. The Company had no deferred gains or losses
recorded at December 31, 1999 and 1998 related to terminated swap agreements on
the Company's long-term borrowings.
The fair value of an exchange-traded derivative financial instrument is
determined by quoted market prices, while over-the-counter derivatives are
valued based upon pricing models which consider time value and volatility, as
well as other economic factors. The fair values of the Company's derivative
financial instruments held for trading purposes at December 31, 1999 were $392.7
million and $215.1 million of assets and liabilities, respectively, and are
reflected on the Consolidated Statements of Financial Condition. The fair values
of these instruments at December 31, 1998 were $191.4 million and $217.8 million
of assets and liabilities, respectively.
The Company's exposure to market risk relates to changes in interest rates,
equity prices, foreign currency exchange rates or the market values of the
assets underlying the financial instruments. The Company's exposure to credit
risk at any point is represented by the fair value or replacement cost on
contracts in which the Company has recorded an unrealized gain. At December 31,
1999 and 1998, the fair values amounted to $392.7 million and $191.4 million,
respectively. The risks inherent in derivative financial instruments are managed
consistent with the Company's overall risk management policies. (See Risk
Management section below.)
RISK MANAGEMENT
Risk is an inherent part of the Company's principal business activities.
Managing risk is critical to the Company's profitability and to reducing the
likelihood of earnings volatility. The Company's risk management policies and
procedures have been established to continually identify, monitor and manage
risk. The Company's principal risks are market, credit, liquidity, legal and
operating risks, which are discussed below, except for liquidity risk which is
discussed in the Liquidity and Capital Resources section of the Management's
Discussion and Analysis.
The Company seeks to manage risk and its impact on earnings volatility through
strategic planning and by focusing on the diversification of its
>> PAINEWEBBER / 31
<PAGE> 8
MANAGEMENT'S DISCUSSION AND ANALYSIS
business activities. Through capital allocation, and the establishment of
trading limits by product and credit limits by counterparty, the Company manages
the risk associated with the various businesses. The Company may reallocate or
deploy capital to the business groups based upon changes in market conditions or
opportunities in the marketplace that are consistent with the Company's
long-term strategy.
The discussion of the Company's principal risks and the estimated amounts of the
Company's market risk exposure generated from the sensitivity analysis performed
by the Company are forward-looking statements assuming certain adverse
conditions occur. Actual results in the future may differ materially from these
projected results due to actual events in the markets in which the Company
operates and other factors. The analysis methods used by the Company to assess
and mitigate risks discussed below should not be considered projections of
future events or losses.
MARKET RISK
All financial instruments involve market risk. Market risk is the potential
change in value of the financial instrument caused by unfavorable changes in
interest rates, equity prices and foreign currency exchange rates. Market risk
is inherent to both derivative and non-derivative financial instruments.
The Company actively monitors its market risk profile through a variety of
control procedures including market risk modeling, review of trading positions
and hedging strategies, and monitoring adherence to established limits. Each
department's trading positions, exposures, profits and losses, and trading
strategies are reviewed by the senior management of each business group.
Independent of the trading departments is a risk management group. The Company's
risk management group reviews the Company's risk profile and adherence to
established trading limits, and aids in the development of risk management
policies. In addition, the Company has in place committees and management
controls to review inventory positions, other asset accounts and asset agings on
a regular basis.
Trading position and exposure limits are established by the Asset/Liability
Management Committee, which meets regularly and is comprised of senior corporate
and business group managers.
The following is a discussion of the Company's primary market risk exposures at
December 31, 1999 and 1998 and how those exposures are managed:
INTEREST RATE RISK
In connection with the Company's dealer activities, the Company is exposed to
interest rate risk due to changes in the level or volatility of interest rates,
changes in the yield curve, mortgage prepayments and credit spreads. The Company
attempts to mitigate its exposure to interest rate risk by entering into hedging
transactions such as U.S. government and Eurodollar forward and futures
contracts, options, and interest rate swap and cap agreements. The Company also
issues fixed rate instruments in connection with its nontrading activities,
which expose the Company to interest rate risk. The Company enters into interest
rate swap agreements that are designed to mitigate its exposure by effectively
converting its fixed rate liabilities into floating rate liabilities.
EQUITY PRICE RISK
In connection with the Company's dealer activities, the Company buys and sells
equity and equity derivative instruments. The Company is exposed to equity price
risk due to changes in the level or volatility of equity prices. The Company
attempts to mitigate its exposure to equity price risk by entering into hedging
transactions including equity option agreements.
SENSITIVITY ANALYSIS
For purposes of the SEC disclosure requirements, the Company has elected to use
a sensitivity approach to express the potential loss in future earnings of its
financial instruments. In preparing the analysis, the Company has combined both
derivative and non-derivative financial instruments held for trading purposes
with those held for purposes other than trading because the amounts were not
material.
The sensitivity calculation employed to analyze interest rate risk on its fixed
income financial instruments was based on a proprietary methodology which
converted substantially all the Company's interest rate sensitive financial
instruments at December 31, 1999 and 1998 into a uniform benchmark (a ten-year
U.S. Treasury note equivalent), and evaluated the impact assuming an 11 basis
point and a 13 basis point change to the ten-year U.S. Treasury note at December
31, 1999 and 1998, respectively. The hypothetical basis point change was derived
from a proprietary model which uses a one-day interval and a 95 percent
confidence level, and was based on historical data over a one-year period. This
analysis does not consider other factors that may influence these results, such
as credit spread risk, prepayment risk on mortgage-backed securities, or changes
in the shape of the yield curve. The sensitivity calculation employed to analyze
equity price risk on its equity financial instruments was based on a proprietary
>> PAINEWEBBER / 32
<PAGE> 9
MANAGEMENT'S DISCUSSION AND ANALYSIS
model which stress tests the firm inventory positions by shocking those
positions for a two standard deviation move in the market (95 percent confidence
interval) using historical data over a one-year period. Based upon the
aforementioned methodologies, the Company's potential daily loss in future
earnings at December 31, 1999 was approximately $3 million and $0.1 million for
interest rate risk and equity price risk, respectively, and the Company's
potential daily loss in future earnings at December 31, 1998 was approximately
$9 million and $0.1 million for interest rate risk and equity price risk,
respectively.
CREDIT RISK
Credit risk represents the amount of accounting loss the Company would incur
should counterparties to its proprietary transactions fail to perform and the
value of any collateral prove inadequate. Credit risk is substantially reduced
by the industry practice of obtaining and maintaining adequate collateral until
commitments are settled. The Company also manages the credit exposure relating
to its trading activities by entering into master netting agreements when
feasible. The Company monitors its exposure to counterparty risk on a daily
basis through use of credit exposure information and monitoring of collateral
values.
The Credit department establishes and reviews credit limits for clients and
other counterparties seeking margin, resale and repurchase agreement facilities,
securities borrowed and securities loaned arrangements, and various other
products. Although the Company closely monitors the creditworthiness of its
clients, the debtors' ability to discharge amounts owed is dependent upon, among
other things, general market conditions. The Company has no material
concentration of credit risk with any individual counterparty.
LEGAL RISK
Legal risk focuses on the Company's potential non-compliance with legal and
regulatory requirements, and counterparty non-performance based upon non-credit
related conditions, such as legal authority or capacity. As a securities
broker-dealer, the Company is subject to regulations which cover all aspects of
the securities business, including sales methods, trade practices among
broker-dealers, use and safekeeping of customers' funds and securities, capital
structure of securities firms, recordkeeping, and the conduct of directors,
officers and employees. The Company has established procedures in accordance
with legal and regulatory requirements that are designed to reasonably ensure
compliance in these matters. The Company has also established procedures
reasonably designed to mitigate counterparty non-performance including adequacy
of legal documentation and consideration of counterparty legal authority and
capacity.
OPERATING RISK
Operating risk focuses on the Company's ability to accumulate, process and
communicate information necessary to conduct its daily operations. Deficiencies
in technology, financial systems and controls, and losses attributable to
operational problems all pose potential operating risks. In order to mitigate
these risks, the Company has established and maintains an effective internal
control environment that incorporates various control mechanisms throughout the
organization and involves various independent oversight groups.
YEAR 2000
The Company has successfully completed a comprehensive plan achieving Year 2000
compliance. The incremental costs of approximately $58 million were expensed as
incurred and no future costs are anticipated.
INFLATION
Because the Company's assets are to a large extent liquid in nature, they are
not significantly affected by inflation. However, inflation may result in
increases in the Company's expenses that may not be readily recoverable in the
price of services offered. To the extent inflation results in rising interest
rates and has other negative effects upon the securities markets, it may
adversely affect the Company's financial condition and results of operations.
SEGMENT INFORMATION
The Company offers a wide range of highly integrated products and services,
primarily those of a full-service securities broker-dealer, to both its
individual and institutional clients, which are considered separate reporting
segments for purposes of SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information." For information on segment reporting and
geographic data, see Note 15 in the Company's Notes to Consolidated Financial
Statements.
NEW ACCOUNTING PRONOUNCEMENTS
See Note 1 in the Company's Notes to Consolidated Financial Statements for a
discussion of new accounting pronouncements.
>> PAINEWEBBER / 33
<PAGE> 10
CONSOLIDATED STATEMENTS OF INCOME
(In thousands of dollars except per share amounts)
<TABLE>
<CAPTION>
Years Ended December 31, 1999 1998 1997
- ------------------------------------------------------------------------------------------------------------------------------------
REVENUES
<S> <C> <C> <C>
Commissions $1,948,959 $1,641,283 $1,496,791
Principal transactions 1,110,080 868,807 1,055,648
Asset management 911,099 713,570 542,755
Investment banking 558,224 530,972 460,001
Interest 3,123,440 3,352,708 2,963,124
Other 170,951 142,242 138,633
----------------------------------------------
Total revenues 7,822,753 7,249,582 6,656,952
Interest expense 2,532,578 2,844,468 2,544,550
----------------------------------------------
Net revenues 5,290,175 4,405,114 4,112,402
----------------------------------------------
NON-INTEREST EXPENSES
Compensation and benefits 3,049,568 2,601,364 2,420,296
Office and equipment 352,712 301,845 275,532
Communications 168,071 154,272 153,285
Business development 122,678 103,287 82,099
Brokerage, clearing and exchange fees 95,211 97,430 86,808
Professional services 136,758 123,265 129,066
Other 330,375 308,644 292,209
----------------------------------------------
Total non-interest expenses 4,255,373 3,690,107 3,439,295
----------------------------------------------
Income before taxes and minority interest 1,034,802 715,007 673,107
Provision for income taxes 373,959 249,208 228,626
----------------------------------------------
Income before minority interest 660,843 465,799 444,481
Minority interest 32,244 32,244 29,032
Net income $ 628,599 $ 433,555 $ 415,449
----------------------------------------------
Dividends and amortization of discount on preferred stock 22,802 23,647 29,513
Unamortized discount charged to equity on redemption of preferred stock 59,883 -- --
----------------------------------------------
Net income applicable to common shares $ 545,914 $ 409,908 $ 385,936
====================================================================================================================================
EARNINGS PER COMMON SHARE (1)
Basic $ 3.77 $ 2.91 $ 2.84
Diluted $ 3.56 $ 2.72 $ 2.56
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The 1999 amounts reflect the effect of the unamortized discount of $59,883
charged to stockholders' equity resulting from the redemption of preferred
stock on December 16, 1999.
See Notes to Consolidated Financial Statements.
PAINEWEBBER / 34
<PAGE> 11
CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION
(In thousands of dollars except share and per share amounts)
<TABLE>
<CAPTION>
December 31, 1999 1998
- ------------------------------------------------------------------------------------------------------------------------------------
ASSETS
<S> <C> <C>
Cash and cash equivalents $ 176,401 $ 228,359
Cash and securities segregated and on deposit for federal and other regulations 823,059 631,272
Financial instruments owned 21,144,830 20,021,351
Securities received as collateral 1,079,976 1,189,331
Securities purchased under agreements to resell 15,923,948 14,217,062
Securities borrowed 10,526,638 8,717,476
Receivables:
Clients, net of allowance for doubtful accounts of $30,039 and $20,496
in 1999 and 1998, respectively 8,918,069 6,667,055
Brokers and dealers 701,497 634,825
Dividends and interest 376,380 306,998
Fees and other 291,991 267,741
Office equipment and leasehold improvements, net of accumulated depreciation
and amortization of $527,718 and $431,460 in 1999 and 1998, respectively 579,819 434,895
Other assets 1,069,768 859,556
----------------------------------------------
$ 61,612,376 $ 54,175,921
====================================================================================================================================
LIABILITIES AND STOCKHOLDERS' EQUITY
Short-term borrowings $ 1,884,250 $ 1,417,783
Financial instruments sold, not yet purchased 7,099,208 5,177,099
Securities sold under agreements to repurchase 25,740,196 23,948,872
Securities loaned 5,661,200 4,969,638
Obligation to return securities received as collateral 1,079,976 1,189,331
Payables:
Clients 7,742,759 6,691,316
Brokers and dealers 295,262 533,621
Dividends and interest 410,196 294,431
Other liabilities and accrued expenses 1,779,984 1,642,682
Accrued compensation and benefits 1,384,512 1,032,838
Long-term borrowings 5,223,826 4,255,802
----------------------------------------------
58,301,369 51,153,413
Commitments and contingencies
Company-Obligated Mandatorily Redeemable Preferred Securities of Subsidiary
Trusts holding solely Company Guaranteed Related Subordinated Debt 393,750 393,750
Redeemable Preferred Stock -- 189,815
Stockholders' equity:
Common stock, $1 par value, 400,000,000 shares authorized; issued
193,145,152 shares and 191,047,151 shares in 1999 and 1998, respectively 193,145 191,047
Additional paid-in capital 1,672,085 1,525,938
Retained earnings 2,171,080 1,689,386
Treasury stock, at cost; 47,557,064 shares and 45,527,707 shares in
1999 and 1998, respectively (1,113,736) (962,792)
Accumulated other comprehensive income (5,317) (4,636)
----------------------------------------------
2,917,257 2,438,943
----------------------------------------------
$ 61,612,376 $ 54,175,921
====================================================================================================================================
</TABLE>
See Notes to Consolidated Financial Statements.
PAINEWEBBER / 35
<PAGE> 12
<TABLE>
<CAPTION>
6% Cumulative
Convertible Additional
Redeemable Common Paid-in
Preferred Stock Stock Capital
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Balance at December 31, 1996 $ 100,000 $ 162,537 $ 792,215
=============================================================================================================================
Net income
Foreign currency translation
Total comprehensive income, year ended December 31, 1997
Dividends declared:
Common stock, $.41 per share
Redeemable Preferred Stock, $9.00 per share
Convertible Preferred Stock, $6.00 per share
Employee stock transactions 3,528 14,164
Restricted stock awards (857) 83,599
Conversion of Convertible Preferred Stock (100,000) (69,443)
Conversion of debentures (14,633)
Tax benefit relating to employee compensation programs 58,738
Other (1,811)
Repurchases of common stock:
Kidder-related repurchase 23,250 542,500
Other
- -----------------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1997 -- $ 188,458 $ 1,405,329
=============================================================================================================================
Net income
Foreign currency translation
Total comprehensive income, year ended December 31, 1998
Dividends declared:
Common stock, $.44 per share
Redeemable Preferred Stock, $9.00 per share
Employee stock transactions 2,954 27,999
Restricted stock awards (368) 31,800
Conversion of debentures (15,757)
Tax benefit relating to employee compensation programs 70,425
Other 3 6,142
Repurchases of common stock
- -----------------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1998 -- $ 191,047 $ 1,525,938
=============================================================================================================================
Net income
Foreign currency translation
Total comprehensive income, year ended December 31, 1999
Dividends declared:
Common stock, $.44 per share
Redeemable Preferred Stock, $9.00 per share
Employee stock transactions 2,330 49,937
Restricted stock awards (235) 50,051
Tax benefit relating to employee compensation programs 45,699
Unamortized discount on redemption of preferred stock
Other 3 460
Repurchases of common stock
- -----------------------------------------------------------------------------------------------------------------------------
BALANCE AT DECEMBER 31, 1999 -- $ 193,145 $ 1,672,085
=============================================================================================================================
</TABLE>
See Notes to Consolidated Financial Statements.
PAINEWEBBER / 36
<PAGE> 13
<TABLE>
<CAPTION>
Accumulated
Other
Retained Treasury Comprehensive
Earnings Stock Income
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Balance at December 31, 1996 $ 1,009,448 $ (331,907) $ (1,868)
==========================================================================================================================
Net income 415,449
Foreign currency translation (3,622)
Total comprehensive income, year ended December 31, 1997
Dividends declared:
Common stock, $.41 per share (54,418)
Redeemable Preferred Stock, $9.00 per share (22,500)
Convertible Preferred Stock, $6.00 per share (6,000)
Employee stock transactions
Restricted stock awards 5,061
Conversion of Convertible Preferred Stock 169,443
Conversion of debentures 34,721
Tax benefit relating to employee compensation programs
Other (1,013) (400)
Repurchases of common stock:
Kidder-related repurchase (784,750)
Other (90,468)
- --------------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1997 $ 1,340,966 $ (998,300) $ (5,490)
==========================================================================================================================
Net income 433,555
Foreign currency translation 854
Total comprehensive income, year ended December 31, 1998
Dividends declared:
Common stock, $.44 per share (61,488)
Redeemable Preferred Stock, $9.00 per share (22,500)
Employee stock transactions
Restricted stock awards 57,534
Conversion of debentures 30,061
Tax benefit relating to employee compensation programs
Other (1,147) 15,526
Repurchases of common stock (67,613)
- --------------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1998 $ 1,689,386 $ (962,792) $ (4,636)
==========================================================================================================================
Net income 628,599
Foreign currency translation (681)
Total comprehensive income, year ended December 31, 1999
Dividends declared:
Common stock, $.44 per share (64,220)
Redeemable Preferred Stock, $9.00 per share (21,562)
Employee stock transactions 32,775
Restricted stock awards 86,546
Tax benefit relating to employee compensation programs
Unamortized discount on redemption of preferred stock (59,883)
Other (1,240) 346
Repurchases of common stock (270,611)
- --------------------------------------------------------------------------------------------------------------------------
BALANCE AT DECEMBER 31, 1999 $ 2,171,080 $(1,113,736) $ (5,317)
==========================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Total Number of Shares
Stockholders' Common Treasury
Equity Stock Stock
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Balance at December 31, 1996 $ 1,730,425 162,537,267 (23,049,351)
========================================================================================================================
Net income 415,449
Foreign currency translation (3,622)
------------
Total comprehensive income, year ended December 31, 1997 411,827
Dividends declared:
Common stock, $.41 per share (54,418)
Redeemable Preferred Stock, $9.00 per share (22,500)
Convertible Preferred Stock, $6.00 per share (6,000)
Employee stock transactions 17,692 3,528,030
Restricted stock awards 87,803 (857,214) 271,716
Conversion of Convertible Preferred Stock -- 8,273,600
Conversion of debentures 20,088 2,224,209
Tax benefit relating to employee compensation programs 58,738
Other (3,224) (312,485)
Repurchases of common stock:
Kidder-related repurchase (219,000) 23,250,000 (32,250,000)
Other (90,468) (3,715,477)
- ------------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1997 $ 1,930,963 188,458,083 (48,557,788)
========================================================================================================================
Net income 433,555
Foreign currency translation 854
------------
Total comprehensive income, year ended December 31, 1998 434,409
Dividends declared:
Common stock, $.44 per share (61,488)
Redeemable Preferred Stock, $9.00 per share (22,500)
Employee stock transactions 30,953 2,953,503
Restricted stock awards 88,966 (367,921) 2,725,525
Conversion of debentures 14,304 1,454,707
Tax benefit relating to employee compensation programs 70,425
Other 20,524 3,486 982,919
Repurchases of common stock (67,613) (2,133,070)
- ------------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1998 $ 2,438,943 191,047,151 (45,527,707)
========================================================================================================================
Net income 628,599
Foreign currency translation (681)
------------
Total comprehensive income, year ended December 31, 1999 627,918
Dividends declared:
Common stock, $.44 per share (64,220)
Redeemable Preferred Stock, $9.00 per share (21,562)
Employee stock transactions 85,042 2,329,596 1,484,938
Restricted stock awards 136,362 (235,081) 3,733,981
Tax benefit relating to employee compensation programs 45,699
Unamortized discount on redemption of preferred stock (59,883)
Other (431) 3,486 15,751
Repurchases of common stock (270,611) (7,264,027)
- ------------------------------------------------------------------------------------------------------------------------
BALANCE AT DECEMBER 31, 1999 $ 2,917,257 193,145,152 (47,557,064)
========================================================================================================================
</TABLE>
PAINEWEBBER / 37
<PAGE> 14
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands of dollars)
<TABLE>
<CAPTION>
Years Ended December 31, 1999 1998 1997
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 628,599 $ 433,555 $ 415,449
Adjustments to reconcile net income to cash used for
operating activities:
Noncash items included in net income:
Depreciation and amortization 99,723 74,296 68,700
Deferred income taxes (74,097) (43,118) (119,934)
Amortization of deferred charges 59,138 84,932 105,911
Stock-based compensation 136,362 88,966 87,803
(Increase) decrease in operating receivables:
Clients (2,260,557) (999,221) (1,343,942)
Brokers and dealers (66,672) (139,970) (221,118)
Dividends and interest (69,382) 30,411 13,387
Fees and other (24,250) 135,834 (267,030)
Increase (decrease) in operating payables:
Clients 1,051,443 1,638,800 169,172
Brokers and dealers (238,359) 265,571 62,613
Dividends and interest 115,765 (48,960) 58,050
Other 523,330 408,672 393,127
(Increase) decrease in:
Cash and securities on deposit (191,787) (62,134) (69,377)
Financial instruments owned (1,091,755) (3,041,221) 456,731
Securities purchased under agreements to resell (1,706,886) 7,345,677 (815,908)
Securities borrowed (1,809,162) 855,711 (2,192,813)
Other assets (196,808) 16,726 (165,625)
Increase (decrease) in:
Financial instruments sold, not yet purchased 1,922,109 (1,925,045) 480,253
Securities sold under agreements to repurchase 1,791,324 (5,680,030) 831,626
Securities loaned 691,562 235,677 1,274,101
----------------------------------------------------------
Cash used for operating activities (710,360) (324,871) (778,824)
====================================================================================================================================
CASH FLOWS FROM INVESTING ACTIVITIES:
Payments for:
Office equipment and leasehold improvements (252,186) (181,417) (90,947)
----------------------------------------------------------
Cash used for investing activities (252,186) (181,417) (90,947)
====================================================================================================================================
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from (payments on):
Short-term borrowings 466,467 (248,433) 328,570
Proceeds from:
Long-term borrowings 1,414,997 1,148,860 822,011
Employee stock transactions 85,042 45,257 72,820
Issuances of Preferred Trust Securities -- -- 198,750
Payments for:
Long-term borrowings (449,525) (293,223) (207,863)
Repurchases of common stock (270,611) (67,613) (411,668)
Preferred stock transactions (250,000) -- --
Dividends (85,782) (83,988) (82,918)
----------------------------------------------------------
Cash provided by financing activities 910,588 500,860 719,702
----------------------------------------------------------
Decrease in cash and cash equivalents (51,958) (5,428) (150,069)
Cash and cash equivalents, beginning of year 228,359 233,787 383,856
----------------------------------------------------------
Cash and cash equivalents, end of year $ 176,401 $ 228,359 $ 233,787
====================================================================================================================================
</TABLE>
See Notes to Consolidated Financial Statements.
PAINEWEBBER / 38
<PAGE> 15
NOTES TO CONSOLIDATED
FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
NOTE 1 / SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization and Basis of Presentation
Paine Webber Group Inc. ("PWG") is a holding company which, together with its
operating subsidiaries (collectively, the "Company"), forms one of the largest
full-service securities firms in the industry. The Company is engaged in one
principal line of business, that of serving the investment and capital needs of
individual and institutional clients.
The consolidated financial statements include the accounts of PWG and its wholly
owned subsidiaries, including its principal subsidiary PaineWebber Incorporated
("PWI"). All material intercompany balances and transactions have been
eliminated. Certain reclassifications have been made to prior year amounts to
conform to current year presentations. The consolidated financial statements are
prepared in conformity with accounting principles generally accepted in the
United States which require management to make estimates and assumptions that
affect the amounts reported in the consolidated financial statements and
accompanying notes. Actual results could differ from those estimates.
Financial Instruments Owned and Sold, Not Yet Purchased
Financial instruments used in the Company's trading activities, including
derivative contracts held or issued for trading purposes, are recorded on a
trade date basis at fair value or amounts approximating fair value. Fair value
is generally based upon quoted market prices. If quoted market prices are not
available, or if liquidating the Company's position is reasonably expected to
impact market prices, fair value is determined based upon other relevant
factors, including dealer price quotations, price activity of similar
instruments and pricing models. Pricing models consider the time value and
volatility factors underlying the financial instruments and other economic
measurements.
Related revenues and expenses are recorded in the accounts on a trade date
basis. Unrealized gains and losses from marking-to-market trading instruments
daily are included in principal transactions revenues. Realized gains and losses
on trading instruments and any related interest amounts are included in
principal transactions revenues and interest revenues and expenses,
respectively.
Equity and debt securities purchased in connection with the Company's principal
investing activities, as well as investments in partnerships and other entities
that invest in financial instruments, in which there are no available market
quotations or may be otherwise restricted, are reported at cost or estimated net
realizable value. Realized and unrealized gains and losses are included in
principal transactions revenues.
Derivative Financial Instruments
A derivative instrument is typically defined as a contractual agreement whose
value is "derived" from an underlying asset, rate or index and includes products
such as forwards, futures, swaps or option contracts and other financial
instruments with similar characteristics. A derivative financial instrument also
includes firm or standby commitments for the purchase of securities. The
derivative definition does not include cash instruments whose values are derived
from changes in the value of some asset or index, such as mortgage-backed
securities and structured notes. Derivative contracts used by the Company
generally represent future commitments to exchange interest payment streams
based on the gross contract or notional amount or to purchase or sell financial
instruments at specified terms and future dates.
In connection with the Company's market risk management and trading activities,
the Company may enter into a derivative contract to manage the risk arising from
other financial instruments or to take a position based upon expected future
market conditions. The Company also takes positions to facilitate client
transactions.
A large portion of the Company's derivative financial instruments are "to be
announced" mortgage securities requiring forward settlement. As a principal in
the mortgage-backed securities business, the Company has outstanding forward
purchase and sale agreements committing the Company to receive or deliver
mortgage-backed securities. These forward contracts are generally short-term
with maturity or settlement dates ranging from 30 to 90 days.
Derivative instruments held or issued for trading purposes are marked-to-market
daily with the resulting unrealized gains and losses recorded on the
Consolidated Statement of Financial Condition in financial instruments owned or
financial instruments sold, not yet purchased, and the related profit or loss
reflected in principal transactions revenues on the Consolidated Statement of
Income. The fair value of an exchange-traded derivative, such as futures and
certain option contracts, is determined by quoted market prices while the fair
value of derivatives negotiated in over-the-counter markets are valued based
upon dealer price quotations or pricing models which consider time value and the
volatility of the underlying instruments, as well as other economic factors.
The Company also enters into interest rate swaps to modify the interest rate
characteristics of its outstanding fixed rate debt. These agreements generally
involve the exchange between the Company and its counterparties of amounts based
on a fixed interest rate for amounts based on a variable interest rate over the
life of the agreement without the exchange of the notional amount upon which the
payments are based. The Company accounts for interest rate swap agreements used
for hedging purposes on the accrual method. The difference to be paid or
received on the swap agreements is accrued as an adjustment to interest expense
as incurred. The related receivable from or payable to counterparties is
PAINEWEBBER / 39
<PAGE> 16
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
reflected as an asset or liability, accordingly. The fair values of the swap
agreements are not recognized in the financial statements. Any gains and losses
on early terminations of swap agreements are deferred as an adjustment to the
carrying amount of the debt and amortized as an adjustment to interest expense
over the remaining term of the original contract life of the hedged item. In the
event of the early extinguishment of debt, any unrealized gain or loss from the
related swap would be recognized in income coincident with the extinguishment.
Collateralized Securities Transactions
Securities purchased under agreements to resell ("resale agreements") and
securities sold under agreements to repurchase ("repurchase agreements"),
principally government and agency securities are, for accounting purposes,
treated as financing transactions and are recorded at their contractual amounts,
plus accrued interest. It is Company policy to obtain possession or control of
securities, which have a fair value in excess of the original principal amount
loaned, in order to collateralize resale agreements. The Company is required to
provide securities to counterparties in order to collateralize repurchase
agreements. The Company monitors the fair value of the securities purchased and
sold under these agreements daily versus the related receivable or payable
balances. Should the fair value of the securities purchased decline or the fair
value of the securities sold increase, additional collateral is requested or
excess collateral is returned when deemed appropriate to maintain contractual
margin protection. When specific conditions are met, including the existence of
a legally enforceable master netting agreement, balances related to resale
agreements and repurchase agreements are netted by counterparty on the
Consolidated Statements of Financial Condition.
Resale agreements and repurchase agreements for which the resale/repurchase date
corresponds to the maturity date of the underlying securities are accounted for
as purchases and sales, respectively.
Securities borrowed and securities loaned are recorded at the amount of cash
collateral advanced or received in connection with the transaction. Securities
borrowed transactions require the Company to deposit cash or other collateral
with the lender. With respect to securities loaned, the Company receives
collateral. The initial collateral advanced or received approximates or is
greater than, the fair value of the securities borrowed or loaned. The Company
monitors the fair value of the securities borrowed and loaned on a daily basis
and requests additional collateral or returns excess collateral, as appropriate.
Depreciation and Amortization
The Company depreciates office equipment using the straight-line method over
estimated useful lives of three to ten years. Leasehold improvements are
amortized over the lesser of the estimated useful life of the asset or the
remaining term of the lease.
The excess cost of acquired companies over the fair value of the net assets
acquired is recorded as goodwill and is amortized on a straight-line basis over
periods not exceeding 35 years.
Income Taxes
The Company files a consolidated federal income tax return and uses the asset
and liability method in providing for income tax expense. Under this method,
deferred taxes are provided based upon the net tax effects of temporary
differences between the book and tax bases of assets and liabilities.
Translation of Foreign Currencies
Assets and liabilities denominated in foreign currencies are translated at
year-end rates of exchange, and revenues and expenses are translated at average
rates of exchange during the year. Gains and losses resulting from translation
adjustments are accumulated as a separate component of comprehensive income
within stockholders' equity. Gains or losses resulting from foreign currency
transactions are included in net income.
Stock-Based Compensation
The Company grants stock options to certain employees and non-employee directors
with an exercise price equal to the fair market value of the stock at the date
of grant. The Company accounts for stock option grants in accordance with
Accounting Principles Board Opinion ("APB") No. 25, "Accounting for Stock Issued
to Employees," and, accordingly, recognizes no compensation expense related to
such grants.
Statement of Cash Flows
For purposes of the Consolidated Statements of Cash Flows, cash equivalents are
defined as highly liquid investments not held for resale, with a maturity of
three months or less when purchased. Total interest payments for the years ended
December 31, 1999, 1998 and 1997 were $2,416,813, $2,893,428 and $2,486,500,
respectively.
PAINEWEBBER / 40
<PAGE> 17
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
Fair Value of Financial Instruments
Substantially all of the Company's financial instruments are carried at fair
value or amounts approximating fair value. Assets, including cash and cash
equivalents, cash and securities segregated for regulatory purposes, trading
assets, resale agreements, securities borrowed, and certain receivables, are
carried at fair value or contracted amounts which approximate fair value.
Similarly, liabilities, including short-term borrowings, trading liabilities,
repurchase agreements, securities loaned, obligations to return securities
received as collateral and certain payables, are carried at fair value or
contracted amounts approximating fair value. Fair values of the Company's
long-term borrowings and interest rate swaps used to hedge the Company's
long-term borrowings are discussed in Note 4.
Accounting Changes and Developments
In June 1998, the Financial Accounting Standards Board ("FASB") issued Statement
of Financial Accounting Standards ("SFAS") No. 133, "Accounting for Derivative
Instruments and Hedging Activities," which establishes revised accounting and
reporting standards for derivative instruments and for hedging activities. It
requires that an entity measure all derivative instruments at fair value and
recognize such instruments as either assets or liabilities in the consolidated
statements of financial condition. The accounting for changes in the fair value
of a derivative instrument will depend on the intended use of the derivative as
either a fair value hedge, a cash flow hedge or a foreign currency hedge. The
effect of the changes in fair value of the derivatives and, in certain cases,
the hedged items are to be reflected in either the consolidated statements of
income or as a component of other comprehensive income, based upon the resulting
designation. As issued, SFAS No. 133 was effective for fiscal years beginning
after June 15, 1999. In June 1999, the FASB issued SFAS No. 137, "Accounting for
Derivative Instruments and Hedging Activities-Deferral of the Effective Date of
FASB Statement No. 133." SFAS No. 137 defers the effective date of SFAS No. 133
for one year to fiscal years beginning after June 15, 2000. The Company has not
yet determined the impact of this statement on the Company's Consolidated
Financial Statements, taken as a whole.
NOTE 2 / FINANCIAL INSTRUMENTS OWNED AND SOLD, NOT YET PURCHASED
At December 31, 1999 and 1998, financial instruments owned and financial
instruments sold, not yet purchased, consisted of the following:
<TABLE>
<CAPTION>
1999 1998
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
FINANCIAL INSTRUMENTS OWNED
U.S. government and agencies $ 5,864,331 $ 4,858,189
Mortgages and mortgage-backed 9,012,415 8,861,944
Corporate debt 1,875,361 2,466,322
Commercial paper and other short-term debt 1,744,036 1,534,913
Equities and other 2,030,986 1,799,804
State and municipals 617,701 500,179
----------- ------------
$21,144,830 $ 20,021,351
================================================================================================
FINANCIAL INSTRUMENTS SOLD, NOT YET PURCHASED
U.S. government and agencies $ 5,804,259 $ 4,031,254
Mortgages and mortgage-backed 123,049 79,521
Corporate debt 785,890 837,099
Equities 348,485 215,991
State and municipals 37,525 13,234
----------- ------------
$ 7,099,208 $ 5,177,099
================================================================================================
</TABLE>
PAINEWEBBER / 41
<PAGE> 18
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
Note 3 / Short-Term Borrowings
The Company meets its short-term financing needs principally by obtaining bank
loans on either a secured or unsecured basis; by issuing commercial paper and
medium-term notes; by entering into agreements to repurchase, whereby securities
are sold with a commitment to repurchase at a future date; and through
securities lending activity.
Short-term borrowings at December 31, 1999 and 1998 consisted of the following:
<TABLE>
<CAPTION>
1999 1998
- --------------------------------------------------------------------------------------
<S> <C> <C>
Commercial paper $ 763,909 $ 457,973
Bank loans 708,841 714,810
Medium-Term Notes 411,500 245,000
----------- ------------
$ 1,884,250 $ 1,417,783
======================================================================================
</TABLE>
The interest rate on commercial paper fluctuates throughout the year. The
weighted-average interest rates on commercial paper borrowings outstanding at
December 31, 1999 and 1998 were 6.30 percent and 5.74 percent, respectively, and
during 1999 and 1998 were 5.33 percent and 5.67 percent, respectively.
Bank loans generally bear interest at rates based on either the federal funds
rate or the London Interbank Offered Rate ("LIBOR"). The weighted-average
interest rates on bank loans outstanding at December 31, 1999 and 1998 were 5.53
percent and 5.57 percent, respectively, and during 1999 and 1998 were 5.88
percent and 5.72 percent, respectively.
The Company has a Multiple Currency Medium-Term Note Program under the terms of
which the Company may offer for sale medium-term senior and subordinated notes
(collectively, the "Medium-Term Notes") due from nine months to thirty years
from date of issuance. The Medium-Term Notes may be either fixed or variable
with respect to interest rates. At December 31, 1999, the Company had
outstanding $276,500 and $135,000 of variable rate and fixed rate Medium-Term
Notes, respectively, with maturities of less than one year from the date of
issuance. At December 31, 1998, the Company had $245,000 of variable rate
Medium-Term Notes with maturities of less than one year from the date of
issuance. The weighted-average interest rates on these Medium-Term Notes
outstanding at December 31, 1999 and 1998 were 6.26 percent and 5.46 percent,
respectively, and during 1999 and 1998 were 5.43 percent and 5.78 percent,
respectively.
The Company has a $1,200,000 committed unsecured senior revolving credit
facility with a group of banks which expires in September 2000, with provisions
for renewal through 2001. In addition, certain of the Company's subsidiaries
have entered into a committed secured revolving credit facility which extends
through August 2000. At December 31, 1999, this credit facility provided an
aggregate of up to $1,000,000. Interest on borrowings under the terms of the
revolving credit facilities is computed, at the option of the Company, at a rate
based on LIBOR, a base rate or the federal funds rate. The Company pays a fee on
the commitments. At December 31, 1999, there were no outstanding borrowings
under these credit facilities.
NOTE 4 / LONG-TERM BORROWINGS
Long-term borrowings at December 31, 1999 and 1998 consisted of the following:
<TABLE>
<CAPTION>
1999 1998
- --------------------------------------------------------------------------------------
<S> <C> <C>
Fixed Rate Notes due 2000 - 2014 $ 2,757,851 $ 1,961,340
Fixed Rate Subordinated Notes due 2002 174,765 174,677
Medium-Term Senior Notes 2,143,010 1,936,835
Medium-Term Subordinated Notes 148,200 182,950
----------- ------------
$ 5,223,826 $ 4,255,802
======================================================================================
</TABLE>
The Company issued $525,000 of 6.38 percent senior notes due 2004 and $275,000
of 7.63 percent senior notes due 2009 on May 18, 1999 and December 1, 1999,
respectively.
Interest rates on the fixed rate notes and the fixed rate subordinated notes
outstanding at December 31, 1999 ranged from 6.38 percent to 9.25 percent. The
weighted-average interest rates on these notes outstanding at December 31, 1999
and 1998 were 7.20 percent and 7.35 percent, respectively. Interest on the notes
is payable semi-annually.
PAINEWEBBER / 42
<PAGE> 19
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
At December 31, 1999 and 1998, the Company had outstanding $1,422,210 and
$1,267,135 of fixed rate Medium-Term Notes and $869,000 and $852,650 of variable
rate Medium-Term Notes, respectively. The Medium-Term Notes outstanding at
December 31, 1999 and 1998 had weighted-average interest rates of 6.76 percent
and 6.48 percent, respectively.
At December 31, 1999, the total long-term borrowings of the Company had an
average maturity of 4.96 years. The aggregate amount of principal repayment
requirements on long-term borrowings for each of the five years subsequent to
December 31, 1999, and the total amount due thereafter, was as follows:
<TABLE>
<CAPTION>
<S> <C>
- -------------------------------------------------
2000 $ 875,373
2001 357,500
2002 602,465
2003 706,837
2004 850,434
Thereafter 1,831,217
------------
$ 5,223,826
- -------------------------------------------------
</TABLE>
The Company has entered into interest rate swap agreements which effectively
convert substantially all of its fixed rate debt into floating rate debt. The
floating interest rates are based on LIBOR and generally adjust semi-annually.
The effective weighted-average interest rates on the long-term borrowings, after
giving effect to the interest rate swap agreements, were 6.94 percent and 6.42
percent at December 31, 1999 and 1998, respectively. The interest rate swap
agreements entered into have had the effect of reducing net interest expense on
the Company's long-term borrowings by $22,593, $15,606 and $10,966 for the years
ended December 31, 1999, 1998 and 1997, respectively. The notional amounts and
maturities of the interest rate swap agreements outstanding at December 31, 1999
were as follows:
<TABLE>
<CAPTION>
<S> <C>
- -------------------------------------------------
2000 $ 747,000
2001 284,000
2002 279,500
2003 645,500
2004 690,200
Thereafter 1,559,810
------------
$ 4,206,010
- -------------------------------------------------
</TABLE>
At December 31, 1999 and 1998, the fair values of long-term borrowings were
$5,140,331 and $4,325,014, respectively, as compared to the carrying amounts of
$5,223,826 and $4,255,802, respectively. The estimated fair value of long-term
borrowings was based upon quoted market prices for the same or similar issues
and pricing models. The fair values of the interest rate swaps were $127,097
payable and $113,226 receivable at December 31, 1999 and 1998, respectively. The
fair value of interest rate swaps used to hedge the Company's long-term
borrowings was based upon the amounts the Company would receive or pay to
terminate the agreements, taking into account current interest rates. The
carrying amounts of the interest rate swap agreements included in the Company's
Consolidated Statements of Financial Condition at December 31, 1999 and 1998
were net receivables of $12,075 and $8,827, respectively. See Notes 1 and 8 for
a further discussion of interest rate swap agreements used for hedging purposes.
>>PAINEWEBBER / 43
<PAGE> 20
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
NOTE 5 / PREFERRED STOCK
Preferred Stock Issued by Paine Webber Group Inc.
The Company is authorized to issue up to 20,000,000 shares of preferred stock,
in one or more series.
Redeemable Preferred Stock - In connection with the acquisition of certain net
assets and specific businesses of Kidder, Peabody Group Inc. ("Kidder") in
December 1994, the Company issued 2,500,000 shares of 20-year 9 percent
Cumulative Redeemable Preferred Stock, Series C (the "Redeemable Preferred
Stock"), with a stated value and liquidation preference of $100.00 per share.
The Redeemable Preferred Stock was recorded at its fair value of $185,000 at the
date of issuance, which was increased periodically by charges to retained
earnings, using the interest method, so that the carrying amount would have
equaled the redemption amount of $250,000 at the mandatory redemption date on
December 15, 2014. The Redeemable Preferred Stock was redeemable at any time, in
whole or in part, on or after December 16, 1999 at the option of the Company at
a price of $100.00 per share, plus accrued and unpaid dividends.
At the earliest redemption date of December 16, 1999, the Company redeemed the
Redeemable Preferred Stock which resulted in a charge to stockholders' equity
equal to the difference between the carrying value and par value (unamortized
discount) of $59,883. Dividends on the Redeemable Preferred Stock were
cumulative and payable in quarterly installments. Holders of the Redeemable
Preferred Stock had no voting rights, except in the event of certain dividend
payment defaults.
Preferred Stock Issued by Subsidiary Trusts
Company-Obligated Mandatorily Redeemable Preferred Securities of Subsidiary
Trusts holding solely Company Guaranteed Related Subordinated Debt - In December
1996, PWG Capital Trust I, a business trust formed under Delaware law and a
wholly owned subsidiary of the Company, issued $195,000 (7,800,000 shares) of
8.30 percent Preferred Trust Securities to the public at $25.00 per security and
$6,031 (241,238 securities) of 8.30 percent Common Trust Securities to the
Company at $25.00 per security. In March 1997, PWG Capital Trust II, a business
trust formed under Delaware law and a wholly owned subsidiary of the Company,
issued $198,750 (7,950,000 securities) of 8.08 percent Preferred Trust
Securities to the public at $25.00 per security and $6,147 (245,877 securities)
of 8.08 percent Common Trust Securities to the Company at $25.00 per security.
The 8.30 percent Preferred Trust Securities and the 8.08 percent Preferred Trust
Securities (collectively, the "Preferred Trust Securities") have a stated
liquidation amount of $25.00 per share.
PWG Capital Trust I and PWG Capital Trust II (collectively, the "Trusts") exist
for the sole purpose of issuing the Preferred Trust Securities and common
securities and investing the proceeds in an equivalent amount of junior
subordinated debentures of the Company. The sole assets of PWG Capital Trust I
at December 31, 1999 were $201,031 of 8.30 percent Junior Subordinated
Debentures due December 1, 2036 issued by the Company. The sole assets of PWG
Capital Trust II at December 31, 1999 were $204,897 of 8.08 percent Junior
Subordinated Debentures due March 1, 2037 issued by the Company. The 8.30
percent Junior Subordinated Debentures and the 8.08 percent Junior Subordinated
Debentures (collectively, the "Junior Subordinated Debentures") held by the
Trusts are redeemable by the Company, in whole or in part, on or after December
1, 2001 and March 1, 2002, respectively. If the Company redeems Junior
Subordinated Debentures, the Trust must redeem Preferred Trust Securities and
common securities having an aggregate liquidation amount equal to the aggregate
principal amount of Junior Subordinated Debentures.
The Company guarantees payment to the holders of the Preferred Trust Securities,
on a subordinated basis, to the extent the Company has made principal and
interest payments on the Junior Subordinated Debentures. This guarantee,
together with the Company's obligations under the Junior Subordinated
Debentures, provides a full and unconditional guarantee on a subordinated basis
of amounts due on the Preferred Trust Securities. Dividends on the Preferred
Trust Securities are cumulative, payable monthly in arrears, and are deferrable
at the Company's option for periods not to exceed sixty consecutive months. The
Company generally cannot pay dividends on its preferred and common stocks during
such deferments. Dividends on the Preferred Trust Securities have been
classified as minority interest in the Company's Consolidated Statements of
Income.
NOTE 6 / COMMON STOCK
In accordance with the repurchase programs, the Company had available to
repurchase at December 31, 1999 a maximum of 18,681,999 shares of its common
stock. Subsequent to December 31, 1999, the Company's Board of Directors
increased the number of shares of common stock authorized for repurchase by
18,000,000.
>>PAINEWEBBER / 44
<PAGE> 21
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
NOTE 7 / CAPITAL REQUIREMENTS
PWI, a registered broker-dealer, is subject to the Securities and Exchange
Commission ("SEC") Uniform Net Capital Rule and New York Stock Exchange ("NYSE")
Growth and Business Reduction capital requirements. Under the method of
computing capital requirements adopted by PWI, minimum net capital shall not be
less than 2 percent of combined aggregate debit items arising from client
transactions, plus excess margin collected on securities purchased under
agreements to resell, as defined. A reduction of business is required if net
capital is less than 4 percent of such aggregate debit items. Business may not
be expanded if net capital is less than 5 percent of such aggregate debit items.
As of December 31, 1999, PWI's net capital of $892,165 was 7.5 percent of
December 29, 1999 aggregate debit items and its net capital in excess of the
minimum required was $649,034.
Advances, dividend payments and other equity distributions by PWI and other
regulated subsidiaries are restricted by the regulations of the SEC, NYSE, and
international securities and banking agencies, as well as by covenants in
various loan agreements. At December 31, 1999, the equity of PWG's subsidiaries
totaled approximately $2,900,000. Of this amount, approximately $453,000 was not
available for payment of cash dividends and advances to PWG.
Under the terms of certain credit agreements, PWG is subject to dividend payment
restrictions and minimum net worth and net capital requirements. At December 31,
1999, these restrictions did not affect PWG's ability to pay dividends to its
shareholders.
NOTE 8 / FINANCIAL INSTRUMENTS WITH OFF-BALANCE-SHEET RISK
Held or Issued for Trading Purposes
Set forth below are the gross contract or notional amounts of the Company's
outstanding off-balance-sheet derivative and other financial instruments held or
issued for trading purposes. These amounts are not reflected in the Consolidated
Statements of Financial Condition and are indicative only of the volume of
activity at December 31, 1999 and 1998. They do not represent amounts subject to
market risks, and in many cases, limit the Company's overall exposure to market
losses by hedging other on- and off-balance-sheet transactions.
<TABLE>
<CAPTION>
Notional or Contract Amount at December 31, 1999 December 31, 1998
----------------------------- -----------------------------
Purchases Sales Purchases Sales
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Mortgage-backed forward contracts
and options written and purchased $14,417,186 $17,540,786 $30,296,601 $35,558,370
Foreign currency forward contracts, futures
contracts, and options written and purchased 1,380,925 1,373,981 2,709,421 2,628,824
Equity securities contracts including stock
index futures, forwards, and options written
and purchased 144,034 239,682 156,519 332,248
Other fixed income securities contracts
including futures, forwards,
and options written and purchased 3,557,193 5,538,887 3,890,619 4,336,300
Interest rate swaps and caps 1,688,762 419,989 1,292,620 282,546
</TABLE>
PAINEWEBBER / 45
<PAGE> 22
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
Set forth below are the fair values of derivative financial instruments held or
issued for trading purposes as of December 31, 1999 and 1998. The fair value
amounts are netted by counterparty when specific conditions are met.
<TABLE>
<CAPTION>
Fair Value at December 31, 1999 December 31, 1998
----------------------------- -----------------------------
Assets Liabilities Assets Liabilities
----------- ------------ -----------------------------
<S> <C> <C> <C> <C>
Mortgage-backed forward contracts
and options written and purchased $ 159,228 $ 114,838 $ 85,995 $ 76,315
Foreign currency forward contracts, futures
contracts, and options written and purchased 20,274 20,158 31,622 31,726
Equity securities contracts including stock
index futures, forwards, and options written
and purchased 152,024 48,835 26,806 46,606
Other fixed income securities contracts
including futures, forwards, and options
written and purchased 29,584 20,177 12,183 55,015
Interest rate swaps and caps 31,569 11,087 34,749 8,096
</TABLE>
Set forth below are the average fair values of derivative financial instruments
held or issued for trading purposes during the years ended December 31, 1999 and
1998. The average fair value is based on the average of the month-end balances
during the year.
<TABLE>
<CAPTION>
Average Fair Value for the Years Ended December 31, 1999 December 31, 1998
----------------------------- -----------------------------
Assets Liabilities Assets Liabilities
----------- ------------ -----------------------------
<S> <C> <C> <C> <C>
Mortgage-backed forward contracts
and options written and purchased $ 171,113 $ 163,954 $ 158,215 $ 146,522
Foreign currency forward contracts,
futures contracts, and options written
and purchased 22,549 22,377 46,222 45,895
Equity securities contracts including stock
index futures, forwards, and options written
and purchased 63,624 40,321 20,836 42,995
Other fixed income securities contracts
including futures, forwards, and options
written and purchased 11,932 49,800 16,547 41,786
Interest rate swaps and caps 18,593 6,754 13,423 40,760
</TABLE>
The Company also sells securities, at predetermined prices, which have not yet
been purchased. The Company is exposed to market risk since to satisfy the
obligation, the Company must acquire the securities at market prices, which may
exceed the values reflected on the Consolidated Statements of Financial
Condition.
The off-balance-sheet derivative trading transactions are generally short-term.
At December 31, 1999, substantially all of the off-balance-sheet trading-related
derivative and other financial instruments had remaining maturities of less than
one year.
The Company's risk of loss in the event of counterparty default is limited to
the current fair value or replacement cost on contracts in which the Company has
recorded an unrealized gain. These amounts are reflected as assets on the
Company's Consolidated Statements of Financial Condition and amounted to
$392,679 and $191,355 at December 31, 1999 and 1998, respectively. Options
written do not expose the Company to credit risk since they do not obligate the
counterparty to perform. Transactions in futures contracts are conducted through
regulated exchanges which have margin requirements, and are settled in cash on a
daily basis, thereby minimizing credit risk. See Note 1 for a further discussion
of derivative financial instruments.
PAINEWEBBER / 46
<PAGE> 23
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
The following table summarizes the Company's principal transactions revenues by
business activity for the years ended December 31, 1999 and 1998. Principal
transactions revenues include realized and unrealized gains and losses on
trading positions and principal investing activities, including hedges. In
assessing the profitability of its trading activities, the Company views net
interest and principal transactions revenues in the aggregate.
<TABLE>
<CAPTION>
Years Ended December 31, 1999 1998
<S> <C> <C>
Taxable fixed income (includes futures, forwards,
options contracts and other securities) $ 501,819 $ 451,668
Equities (includes stock index futures, forwards and options contracts) 446,168 279,720
Municipals (includes futures and options contracts) 162,093 137,419
----------- ------------
$ 1,110,080 $ 868,807
=========== ============
</TABLE>
Held or Issued for Purposes other than Trading
The Company enters into interest rate swap agreements to manage the interest
rate characteristics of its assets and liabilities. As of December 31, 1999 and
1998, the Company had outstanding interest rate swap agreements with commercial
banks with notional amounts of $4,206,010 and $3,096,985, respectively. These
agreements effectively converted substantially all of the Company's fixed rate
debt at December 31, 1999 into floating rate debt. The Company had no deferred
gains or losses related to terminated swap agreements on the Company's long-term
borrowings at December 31, 1999 and 1998. The Company is subject to market risk
as interest rates fluctuate. The interest rate swaps contain credit risk to the
extent the Company is in a receivable or gain position and the counterparty
defaults. However, the counterparties to the agreements generally are large
financial institutions, and the Company has not experienced defaults in the
past, and management does not anticipate any counterparty defaults in the
foreseeable future. See Notes 1 and 4 for further discussion of interest rate
swap agreements used for hedging purposes.
NOTE 9 / RISK MANAGEMENT
Transactions involving derivative and non-derivative financial instruments
involve varying degrees of both market and credit risk. The Company monitors its
exposure to market and credit risk on a daily basis and through a variety of
financial, security position and credit exposure reporting and control
procedures.
Market Risk
Market risk is the potential change in value of the financial instrument caused
by unfavorable changes in interest rates, equity prices and foreign currency
exchange rates. The Company has a variety of methods to monitor its market risk
profile. The senior management of each business group is responsible for
reviewing trading positions, exposures, profits and losses, and trading
strategies. The Company also has an independent risk management group which
reviews the Company's risk profile and aids in setting and monitoring risk
management policies of the Company, including monitoring adherence to the
established limits, performing market risk modeling, and reviewing trading
positions and hedging strategies. The Asset/Liability Management Committee,
comprised of senior corporate and business group managers, is responsible for
establishing trading position and exposure limits.
Market risk modeling is based on estimating loss exposure through sensitivity
testing. These results are compared to established limits, and exceptions are
subject to review and approval by senior management. Other market risk control
procedures include monitoring inventory agings, reviewing traders' marks, and
holding regular meetings between the senior management of the business groups
and the risk management group.
Credit Risk in Proprietary Transactions
Counterparties to the Company's proprietary trading, hedging, financing and
arbitrage activities are primarily financial institutions, including banks,
brokers and dealers, investment funds, and insurance companies. Credit losses
could arise should counterparties fail to perform and the value of any
collateral proves inadequate. The Company manages credit risk by monitoring net
exposure to individual counterparties on a daily basis, monitoring credit limits
and requiring additional collateral where appropriate.
Derivative credit exposures are calculated, aggregated and compared to
established limits by the credit department. Credit reserve requirements are
determined by senior management in conjunction with the Company's continuous
credit monitoring procedures. Historically, reserve requirements arising from
instruments with off-balance-sheet risk have not been material.
Receivables and payables with brokers and dealers, agreements to resell and
repurchase securities, and securities borrowed and loaned are generally
collateralized by cash, government and agency securities, and letters of credit.
The market value of the initial collateral received
PAINEWEBBER / 47
<PAGE> 24
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
approximates or is greater than the contract value. Additional collateral is
requested when considered necessary. The Company may pledge clients' margined
securities as collateral in support of securities loaned and bank loans, as well
as to satisfy margin requirements at clearing organizations. The amounts loaned
or pledged are limited to the extent permitted by applicable margin regulations.
Should the counterparty fail to return the clients' securities, the Company may
be required to replace them at prevailing market prices. At December 31, 1999,
the market value of client securities loaned to other brokers approximated the
amounts due or collateral obtained.
Credit Risk in Client Activities
Client transactions are entered on either a cash or margin basis. In a margin
transaction, the Company extends credit to a client for the purchase of
securities, using the securities purchased and/or other securities in the
client's account as collateral for amounts loaned. Receivables from customers
are substantially collateralized by customer securities. Amounts loaned are
limited by margin regulations of the Federal Reserve Board and other regulatory
authorities and are subject to the Company's credit review and daily monitoring
procedures. Market declines could, however, reduce the value of any collateral
below the principal amount loaned, plus accrued interest, before the collateral
can be sold.
Client transactions include positions in commodities and financial futures,
trading liabilities, and written options. The risk to the Company's clients in
these transactions can be substantial, principally due to price volatility which
can reduce the clients' ability to meet their obligations. Margin deposit
requirements pertaining to commodity futures and exchange-traded options
transactions are generally lower than those for exchange-traded securities. To
the extent clients are unable to meet their commitments to the Company and
margin deposits are insufficient to cover outstanding liabilities, the Company
may take market action and credit losses could be realized.
Client trades are recorded on a settlement date basis. Should either the client
or broker fail to perform, the Company may be required to complete the
transaction at prevailing market prices. Trades pending at December 31, 1999
were settled without material adverse effect on the Company's consolidated
financial statements, taken as a whole.
Concentrations of Credit Risk
Concentrations of credit risk that arise from financial instruments (whether on-
or off-balance-sheet) exist for groups of counterparties when they have similar
economic characteristics that would cause their ability to meet obligations to
be similarly affected by economic, industry or geographic factors. As a major
securities firm, the Company engages in underwriting and other financing
activities with a broad range of clients, including other financial
institutions, municipalities, governments, financing companies, and commercial
real estate investors and operators. These activities could result in
concentrations of credit risk with a particular counterparty, or group of
counterparties operating in a particular geographic area or engaged in business
in a particular industry. The Company seeks to control its credit risk and the
potential for risk concentration through a variety of reporting and control
procedures described above.
The Company's most significant industry concentration, which arises within its
normal course of business activities, is financial institutions including banks,
brokers and dealers, investment funds, and insurance companies.
Note 10 / Commitments and Contingencies
Leases
The Company leases office space and equipment under noncancelable operating
lease agreements which expire at various dates through 2015. As of December 31,
1999, the aggregate minimum future rental payments required by operating leases
with initial or remaining lease terms exceeding one year were as follows:
<TABLE>
<CAPTION>
<S> <C>
2000 $ 166,168
2001 155,240
2002 146,857
2003 142,583
2004 136,963
Thereafter 897,467
------------
$ 1,645,278
============
</TABLE>
Rentals are subject to periodic escalation charges and do not include amounts
payable for insurance, taxes and maintenance. In addition, minimum payments have
not been reduced by future minimum sublease rental income of $7,859.
PAINEWEBBER / 48
<PAGE> 25
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
For the years ended December 31, 1999, 1998 and 1997, rent expense under
operating leases was $183,967, $168,417 and $160,973, respectively.
Other Commitments and Contingencies
At December 31, 1999 and 1998, the Company was contingently liable under
unsecured letters of credit totaling $139,156 and $159,647, respectively, which
approximated fair value. At December 31, 1999, certain of the Company's
subsidiaries were contingently liable as issuer of approximately $45,000 of
notes payable to managing general partners of various limited partnerships
pursuant to certain partnership agreements. In addition, as part of the 1995
limited partnership settlements, the Company has agreed, under certain
circumstances, to provide to class members additional consideration including
assignment of fees the Company is entitled to receive from certain partnerships.
In the opinion of management, these contingencies will not have a material
adverse effect on the Company's consolidated financial statements, taken as a
whole.
In meeting the financing needs of certain of its clients, the Company may also
issue standby letters of credit which are fully collateralized by customer
margin securities. At December 31, 1999, the Company had outstanding $101,400 of
such standby letters of credit. At December 31, 1999 and 1998, securities with a
fair value of $2,536,073 and $2,008,145, respectively, had been loaned or
pledged as collateral for securities borrowed of approximately equal fair value.
In the normal course of business, the Company enters into when-issued
transactions, underwriting and other commitments. Also, at December 31, 1999,
the Company had commitments of $858,122, consisting of secured credit lines to
real estate operators, mortgage and asset-backed originators, and other
commitments to investment partnerships. Settlement of these transactions at
December 31, 1999 would not have had a material impact on the Company's
consolidated financial statements, taken as a whole.
The Company has been named as a defendant in numerous legal actions in the
ordinary course of business. While the outcome of such matters cannot be
predicted with certainty, in the opinion of management of the Company, after
consultation with various counsel handling such matters, these actions will be
resolved with no material adverse effect on the Company's consolidated financial
statements, taken as a whole.
NOTE 11 / EMPLOYEE INCENTIVE AWARDS
The Company's various Stock Option and Award Plans (the "Plans") provide for the
granting to officers and other key employees nonqualified stock options,
restricted stock awards, stock appreciation rights, restricted stock units,
stock purchase rights, performance units and other stock based awards. At
December 31, 1999 and 1998, there were 10,597,664 and 9,502,661 shares,
respectively, available for future stock option, common stock and restricted
stock awards under these plans. The Company had no stock appreciation rights,
performance units or stock purchase rights outstanding at December 31, 1999.
Nonqualified Stock Options
Officers and other key employees are granted nonqualified stock options to
purchase shares of common stock at a price not less than the fair market value
of the stock on the date the option is granted. Options for the Company's common
stock have also been granted to limited partnerships, in which key employees of
the Company are limited partners, and to non-employee directors. Options are
exercisable in ratable installments or otherwise, generally over a period of one
to five years from the date of grant. The rights generally expire within seven
to ten years after the date of grant.
Beginning in January 1999, the Company established the Equity Plus Program which
allows eligible employees to purchase shares of the Company's common stock at a
price equal to fair market value on the purchase date and receive stock options
based upon the number of shares purchased under the Program. The maximum number
of shares an employee can purchase is 1,000 per year. The nonqualified stock
options have a price equal to the fair market value of the stock on the date the
option is granted. Shares purchased under the Equity Plus Program are restricted
from resale for two years from the time of purchase, and the options that are
granted under the Equity Plus Program have a three year vesting requirement and
expire seven years after the date of grant. The number of common shares
authorized for purchase by eligible employees is 3,000,000 per annum. During
1999, employees of the Company purchased 1,484,983 shares under the Equity Plus
Program and received 3,005,209 options.
>> PAINEWEBBER / 49
<PAGE> 26
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
The activity during the years ended December 31, 1997, 1998 and 1999 is set
forth below. In January 2000, eligible participants were granted nonqualified
stock options for 1,822,500 shares which are not included in the table below.
<TABLE>
<CAPTION>
Number of Exercise price Weighted-average
shares per share exercise price
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Options outstanding at December 31, 1996 (6,351,551 exercisable) 26,330,606 $ 4.37 - 17.71 $11.80
Granted 7,726,325 18.50 - 34.22 27.58
Exercised (4,964,542) 4.37 - 14.08 10.60
Terminated (928,594) 4.37 - 22.50 13.89
- ------------------------------------------------------------------------------------------------------------------------------
Options outstanding at December 31, 1997 (6,062,722 exercisable) 28,163,795 $ 4.43 - 34.22 $16.27
Granted 5,865,220 30.69 - 42.63 36.19
Exercised (2,953,503) 4.43 - 34.22 10.48
Terminated (826,541) 4.93 - 34.22 22.06
- ------------------------------------------------------------------------------------------------------------------------------
Options outstanding at December 31, 1998 (8,712,066 exercisable) 30,248,971 $ 4.93 - 42.63 $20.54
Granted 3,594,777 35.78 - 48.03 39.70
Exercised (2,329,596) 4.93 - 36.78 11.43
Terminated (861,589) 6.69 - 46.66 27.30
- ------------------------------------------------------------------------------------------------------------------------------
Options outstanding at December 31, 1999 (13,072,821 exercisable) 30,652,563 $ 5.00 - 48.03 $23.29
==============================================================================================================================
</TABLE>
The following table summarizes information about stock options outstanding at
December 31, 1999:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
- ------------------------------------------------------------------------------------------------------------------------------
Weighted-
average
remaining
Range of Number of contractual Number of
exercise prices shares Weighted-average life shares Weighted-average
per share outstanding exercise price (years) exercisable exercise price
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$ 5.00 - 13.00 7,228,012 $ 10.76 4.2 7,228,012 $ 10.76
13.01 - 21.00 9,795,481 15.15 4.7 5,832,343 14.54
21.01 - 29.00 789,750 22.47 4.3 -- --
29.01 - 37.00 7,481,268 34.68 5.2 11,346 34.41
37.01 - 48.03 5,358,052 39.28 6.2 1,120 44.89
$ 5.00 - 48.03 30,652,563 $ 23.29 5.0 13,072,821 $ 12.47
==============================================================================================================================
</TABLE>
The Company accounts for stock option grants in accordance with APB Opinion No.
25. Accordingly, no compensation cost has been recognized for its stock option
grants. Pro forma information regarding net income and earnings per share is
required under SFAS No. 123 and has been determined as if the Company had
accounted for all post 1994 stock option grants based on the fair value method.
The pro forma information presented below is not representative of the effect
stock options will have on pro forma net income or earnings per share for future
years.
The fair value of each option grant was estimated at the date of grant using the
Black-Scholes option-pricing model with the following weighted-average
assumptions for 1999, 1998 and 1997, respectively: dividend yields of 1.1
percent, 1.2 percent and 1.7 percent; expected lives of 4.0 years, 3.8 years,
and 3.8 years; risk-free interest rates of 5.5 percent, 5.0 percent and 6.2
percent; and expected volatility of 38 percent, 35 percent and 33 percent. The
weighted-average fair values of options granted during 1999, 1998 and 1997 were
$13.64, $11.15 and $8.52, respectively.
>> PAINEWEBBER / 50
<PAGE> 27
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
For purposes of the pro forma information, the fair values of the 1999, 1998 and
1997 stock option grants are amortized over the vesting period. The pro forma
information for the years ended 1999, 1998 and 1997 was as follows:
<TABLE>
<CAPTION>
Years Ended December 31, 1999 1998 1997
<S> <C> <C> <C>
NET INCOME As reported $ 628,599 $ 433,555 $ 415,449
Pro forma $ 592,684 $ 406,967 $ 397,131
EARNINGS PER COMMON SHARE
Basic As reported $ 3.77(1) $ 2.91 $ 2.84
Pro forma $ 3.52(1) $ 2.72 $ 2.70
Diluted As reported $ 3.56(1) $ 2.72 $ 2.56
Pro forma $ 3.33(1) $ 2.55 $ 2.44
</TABLE>
(1) Reflects the effect of the unamortized discount of $59,883 charged to
stockholders' equity resulting from the redemption of preferred stock on
December 16, 1999.
Restricted Stock Awards
Restricted stock awards are granted to key employees, whereby shares of the
Company's common stock are awarded in the name of the employee, who has all
rights of a stockholder, subject to certain sale and transfer restrictions. The
awards generally contain restrictions on sales and transfers ranging from one to
three years. The restricted stock awards are subject to forfeiture if the
employee terminates prior to the prescribed restriction period.
During the years ended December 31, 1999, 1998 and 1997, the Company awarded
3,498,900, 2,357,604 and 2,174,502 shares, respectively, of restricted stock,
net of forfeitures. Restricted stock awards are expensed in the service year to
which the grant relates at the value of the stock on grant date. The charge to
compensation expense, net of forfeitures, amounted to $136,362, $88,966 and
$87,803 in the years ended December 31, 1999, 1998 and 1997, respectively.
Other Deferred Compensation Awards
Eligible employees in the Company's Private Client Group participate in the
PaineWebber PartnerPlus Plan (the "PartnerPlus Plan"), a nonqualified deferred
compensation plan. Under the PartnerPlus Plan, the Company makes annual
contributions and the employee may elect to make voluntary pre-tax
contributions, subject to a maximum percent of the Company contribution. The
Company and employee contributions earn tax-deferred interest for ten years.
Company contributions made beginning January 1, 1999 and the interest thereon
generally vest 20 percent per year beginning the sixth year from the date of
contribution, through year ten. Company contributions made prior to January 1,
1999, vest after four years, and the related interest vests after ten years from
the date of contribution. Voluntary contributions vest immediately and the
interest thereon vests on the same terms as interest on Company contributions.
The Company expenses these costs over the service period.
NOTE 12 / EMPLOYEE BENEFIT PLANS
Defined Benefit Pension Plan
In 1998, the Company adopted SFAS No. 132 "Employers' Disclosure about Pension
and Other Postretirement Benefits" which revised and standardized disclosure
requirements. Prior year disclosures have been restated to comply with SFAS No.
132.
The Company has a non-contributory defined benefit pension plan (the "Plan"),
which provides benefits to eligible employees. As of December 31, 1998, the
Company amended its Plan to freeze future accruals except as related to
employees meeting certain age and years of service eligibility requirements.
Pension expense for the years ended 1999, 1998 and 1997 for the Plan
included the following components:
<TABLE>
<CAPTION>
Years Ended December 31, 1999 1998 1997
<S> <C> <C> <C>
Service cost $ 15,900 $ 23,729 $ 19,373
Interest cost 27,860 27,016 23,576
Expected return on Plan assets (35,394) (37,085) (28,991)
Amortization of transition asset (840) (840) (840)
Amortization of prior service cost -- 1,742 2,037
Recognized actuarial loss 2,748 6,289 5,783
--------- --------- ---------
Net periodic pension cost $ 10,274 $ 20,851 $ 20,938
========= ========= =========
</TABLE>
PAINEWEBBER / 51
<PAGE> 28
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
The following table provides a reconciliation of the Plan's benefit obligation
and fair value of Plan assets, as well as a summarization of the Plan's funded
status and prepaid pension asset which is included in other assets on the
Company's Consolidated Statements of Financial Condition at December 31, 1999
and 1998:
<TABLE>
<CAPTION>
1999 1998
<S> <C> <C>
Change in Benefit Obligation:
Benefit obligation at beginning of year $ 406,458 $ 394,583
Service cost 15,900 23,729
Interest cost 27,860 27,016
Actuarial gain (49,113) (3,731)
Effect of curtailment -- (18,003)
Benefits paid (20,597) (17,136)
----------- ------------
Benefit obligation at end of year 380,508 406,458
----------- ------------
Change in Plan Assets:
Fair value of Plan assets at beginning of year 424,874 399,010
Actual return on assets 25,453 33,000
Employer contribution -- 10,000
Benefits paid (20,597) (17,136)
----------- ------------
Fair value of Plan assets at end of year 429,730 424,874
----------- ------------
Funded status 49,222 18,416
Unrecognized transition asset (2,005) (2,845)
Unrecognized net loss 21,212 63,132
----------- ------------
Prepaid pension asset at year-end $ 68,429 $ 78,703
=========== ============
</TABLE>
The benefit obligation for the Plan was determined using an assumed discount
rate of 8.0 percent for 1999 and 7.0 percent for 1998, and an assumed rate of
compensation increase of 4 percent for 1999 and 5 percent for 1998. The
weighted-average assumed rate of return on Plan assets was 8.5 percent for 1999
and 9.5 percent for 1998 and 1997. The Company's funding policy is to contribute
to the Plan amounts that can be deducted for federal income tax purposes. Plan
assets consist primarily of equity securities and U.S. government and agency
obligations.
Defined Contribution Pension Plan
Effective January 1, 1999, the Company established the PaineWebber 401(k) Plus
Plan (the "Plus Plan") which was developed for eligible employees of the Company
to modify the PaineWebber Savings Investment Plan and replace the benefits that
employees would have accrued under the frozen defined benefit pension plan. The
Plus Plan is a defined contribution pension plan that includes two retirement
benefit features: an employee savings investment plan (401(k)) and an annual
retirement contribution that the Company will make to the Plus Plan on the
employee's behalf. Employee contributions vest immediately while Company
contributions are subject to certain vesting provisions.
Under the new Plus Plan, a portion of the employee's 401(k) contributions are
matched by the Company on a graduated scale based on the Company's pre-tax
earnings. The provision for Company contributions for amounts contributed or to
be contributed in cash and/or stock of the Company to the 401(k) and invested in
the PaineWebber Common Stock Fund amounted to approximately $22,900, $14,100 and
$13,000 for the years ended December 31, 1999, 1998 and 1997, respectively.
The annual retirement contribution feature provides a Company contribution equal
to a percentage based on the employee's eligible compensation and the employee's
number of years of service with the Company. The provision for the Company's
annual retirement contribution to be contributed in cash for the year ended
December 31, 1999 is $24,300.
Other Benefit Plans
The Company also provides certain life insurance and healthcare benefits to
employees. The costs of such benefits for the years ended December 31, 1999,
1998 and 1997 were $72,500, $57,600 and $55,400, respectively.
PAINEWEBBER / 52
<PAGE> 29
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
NOTE 13 / INCOME TAXES
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. For financial reporting
purposes, net deferred tax assets are included in other assets in the
Consolidated Statements of Financial Condition. Deferred tax assets are
reflected without reduction for a valuation allowance. Significant components of
the Company's deferred tax assets and liabilities as of December 31, 1999, 1998
and 1997 were as follows:
<TABLE>
<CAPTION>
1999 1998 1997
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
DEFERRED TAX ASSETS
Employee benefits $395,326 $276,367 $229,449
Accelerated income and deferred deductions 117,978 92,724 91,263
Acquired tax benefits 730 25,472 46,000
Other 29,509 20,554 23,627
----------------------------------------
Total deferred tax assets 543,543 415,117 390,339
- -------------------------------------------------------------------------------------------
DEFERRED TAX LIABILITIES
Tax over book depreciation 8,947 6,792 16,450
Accelerated deductions and deferred income 70,076 41,414 36,753
Safe harbor leases 3,198 4,385 5,282
Valuation of trading assets and investments 70,412 45,662 57,781
Other 3,203 3,254 3,581
----------------------------------------
Total deferred tax liabilities 155,836 101,507 119,847
- -------------------------------------------------------------------------------------------
Net deferred tax asset $387,707 $313,610 $270,492
===========================================================================================
</TABLE>
The significant components of the provision for income taxes for the years ended
December 31, 1999, 1998 and 1997 were as follows:
<TABLE>
<CAPTION>
Years Ended December 31, 1999 1998 1997
- ---------------------------------------------------------------------------
<S> <C> <C> <C>
CURRENT
Federal $ 360,596 $ 262,733 $ 235,349
State 45,970 14,501 56,476
Foreign 41,490 15,092 10,735
---------------------------------------------
Total current 448,056 292,326 302,560
- ---------------------------------------------------------------------------
DEFERRED
Federal (67,871) (59,732) (56,373)
State (7,298) 14,562 (17,348)
Foreign 1,072 2,052 (213)
---------------------------------------------
Total deferred (74,097) (43,118) (73,934)
- ---------------------------------------------------------------------------
$ 373,959 $ 249,208 $ 228,626
===========================================================================
</TABLE>
The reconciliation of income taxes, computed at the statutory federal rate, to
the provision for income taxes recorded for the years ended December 31, 1999,
1998 and 1997, was as follows:
<TABLE>
<CAPTION>
Years Ended December 31, 1999 1998 1997
- ----------------------------------------------------------------------------------------------------------------------------------
Amount % Amount % Amount %
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Tax at statutory federal rate $ 362,181 35.0 $ 250,252 35.0 $ 235,587 35.0
State and local income taxes, net of federal tax benefit 25,137 2.4 18,891 2.6 25,433 3.8
Foreign rate differential (3,709) (0.4) 902 0.1 (1,926) (0.3)
Nontaxable dividends and interest (6,657) (0.6) (6,264) (0.8) (6,936) (1.0)
Nondeductible expenses 6,757 0.7 3,261 0.5 3,251 0.5
Minority interest (11,285) (1.1) (11,285) (1.6) (10,161) (1.5)
Other, net 1,535 0.1 (6,549) (0.9) (16,622) (2.5)
---------------------------------------------------------------------
$ 373,959 36.1 $ 249,208 34.9 $ 228,626 34.0
==================================================================================================================================
</TABLE>
>> PAINEWEBBER / 53
<PAGE> 30
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
Income taxes paid for the years ended December 31, 1999, 1998 and 1997 were
$379,194, $236,597 and $278,553, respectively.
Undistributed earnings of the Company's foreign subsidiaries are considered to
be permanently reinvested and, accordingly, no provision for U.S. income taxes
is required on such earnings. As of December 31, 1999, such earnings were
estimated to be $293,000. The estimated U.S. income taxes that would be payable
upon the repatriation of such earnings were not material.
NOTE 14 / EARNINGS PER COMMON SHARE
Earnings per common share are computed in accordance with SFAS No. 128,
"Earnings Per Share." Basic earnings per share excludes the dilutive effects of
options and convertible securities and is calculated by dividing income
available to common shareholders by the weighted-average number of common shares
outstanding for the period. Diluted earnings per share reflects all potentially
dilutive securities.
Set forth below is the reconciliation of net income applicable to common shares
and weighted-average common and common equivalent shares of the basic and
diluted earnings per share computations:
<TABLE>
<CAPTION>
Years Ended December 31, 1999 1998 1997
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
NUMERATOR
Net income $ 628,599 $ 433,555 $ 415,449
Preferred stock dividends (22,802) (23,647) (29,513)
Unamortized discount charged to equity on
redemption of preferred stock (59,883) -- --
--------------------------------------------------------------
Net income applicable to common
shares for basic earnings per share 545,914 409,908 385,936
--------------------------------------------------------------
Effect of dilutive securities:
Preferred stock dividends -- -- 6,000
Interest savings on convertible debentures -- 279 1,030
--------------------------------------------------------------
-- 279 7,030
--------------------------------------------------------------
Net income applicable to common
shares for diluted earnings per share $ 545,914 $ 410,187 $ 392,966
- ---------------------------------------------------------------------------------------------------------------------------------
DENOMINATOR
Weighted-average common shares for basic earnings per share 144,931,042 140,863,761 135,943,063
Weighted-average effect of dilutive securities:
Employee stock options and awards 8,283,402 8,870,423 7,759,013
Convertible debentures -- 877,241 1,984,328
6% Convertible Preferred Stock -- -- 7,661,580(1)
--------------------------------------------------------------
Dilutive potential common shares 8,283,402 9,747,664 17,404,921
Weighted-average common and common equivalent
shares for diluted earnings per share 153,214,444 150,611,425 153,347,984
- ---------------------------------------------------------------------------------------------------------------------------------
EARNINGS PER COMMON SHARE
Basic $ 3.77(2) $ 2.91 $ 2.84
Diluted $ 3.56(2) $ 2.72 $ 2.56
=================================================================================================================================
</TABLE>
(1) The 6% Convertible Preferred Stock was converted into 8,273,600 common
shares on December 4, 1997.
(2) Reflects the effect of the unamortized discount of $59,883 charged to
stockholders' equity resulting from the redemption of preferred stock on
December 16,1999.
>> PAINEWEBBER / 54
<PAGE> 31
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands of dollars except share and per share amounts)
NOTE 15 / SEGMENT REPORTING DATA
In 1998, the Company adopted SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information." The Company offers a wide variety of
products and services, primarily those of a full service broker-dealer to a
domestic market, through its two operating segments: Individual and
Institutional. The Individual segment offers brokerage services and products
(such as the purchase and sale of securities, insurance annuity contracts,
mutual funds, wrap fee products, and margin and securities lending), asset
management and other investment advisory and portfolio management products and
services, and execution and clearing services for transactions originated by
individual investors. The Institutional segment principally includes capital
markets products and services (such as the placing of securities and other
financial instruments for -- and the execution of trades on behalf of --
institutional clients, investment banking services such as the underwriting of
debt and equity securities, and mergers and acquisitions advisory services).
Segment revenues and expenses in the table below consist of those that are
directly attributable, combined with segment amounts based on Company allocation
methodologies (for example, allocating a portion of investment banking revenues
to the Individual segment; relative utilization of the Company's square footage
for certain cost allocations).
<TABLE>
<CAPTION>
1999 1998
- ---------------------------------------------------------------- ------------------------------------------
INDIVIDUAL INSTITUTIONAL TOTAL Individual Institutional Total
- ---------------------------------------------------------------- ------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Total revenues $ 4,676,467 $ 3,146,286 $ 7,822,753 $ 3,978,301 $ 3,271,281 $ 7,249,582
Net interest
revenues 368,853 222,009 590,862 314,078 194,162 508,240
Net revenues 4,014,049 1,276,126 5,290,175 3,373,456 1,031,658 4,405,114
Depreciation and
amortization 78,868 20,855 99,723 49,639 24,657 74,296
Income
before taxes
and minority
interest 641,870 392,932 1,034,802 494,666 220,341 715,007
Total assets 21,828,324 39,784,052 61,612,376 18,330,427 35,845,494 54,175,921
Expenditures
for long-
lived assets 145,531 106,655 252,186 89,460 91,957 181,417
================================================================= ==========================================
</TABLE>
<TABLE>
<CAPTION>
1997
- ----------------------------------------------------------------
Individual Institutional Total
- ----------------------------------------------------------------
<S> <C> <C> <C>
Total revenues $ 3,556,246 $ 3,100,706 $ 6,656,952
Net interest
revenues 274,762 143,812 418,574
Net revenues 3,082,359 1,030,043 4,112,402
Depreciation and
amortization 37,637 31,063 68,700
Income
before taxes
and minority
interest 443,376 229,731 673,107
Total assets 14,736,069 42,328,964 57,065,033
Expenditures
for long-
lived assets 45,950 44,997 90,947
================================================================
</TABLE>
The following presents information about the Company's operations by geographic
area:
<TABLE>
<CAPTION>
1999 1998
- -------------------------------------------------------------- ---------------------------------------------
United States Non-U.S.(1) Total United States Non-U.S.(1) Total
- -------------------------------------------------------------- ---------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Total revenues $ 7,531,898 $ 290,855 $ 7,822,753 $ 7,001,967 $ 247,615 $ 7,249,582
Net revenues 5,022,697 267,478 5,290,175 4,239,413 165,701 4,405,114
Income before
taxes and
minority
interest 907,253 127,549 1,034,802 677,646 37,361 715,007
Total assets 53,921,208 7,691,168 61,612,376 44,691,427 9,484,494 54,175,921
============================================================== =============================================
</TABLE>
<TABLE>
<CAPTION>
1997
- --------------------------------------------------------------
United States Non-U.S.(1) Total
- --------------------------------------------------------------
<S> <C> <C> <C>
Total revenues $ 6,461,976 $ 194,976 $ 6,656,952
Net revenues 3,965,289 147,113 4,112,402
Income before
taxes and
minority
interest 647,268 25,839 673,107
Total assets 46,610,462 10,454,571 57,065,033
==============================================================
</TABLE>
(1) Predominantly the United Kingdom.
>> PAINEWEBBER / 55
<PAGE> 32
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors and Stockholders of Paine Webber Group Inc.
We have audited the accompanying consolidated statements of financial condition
of Paine Webber Group Inc. as of December 31, 1999 and 1998, and the related
consolidated statements of income, changes in stockholders' equity and cash
flows for each of the three years in the period ended December 31, 1999. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of Paine
Webber Group Inc. at December 31, 1999 and 1998, and the consolidated results of
its operations and its cash flows for each of the three years in the period
ended December 31, 1999, in conformity with accounting principles generally
accepted in the United States.
New York, New York
January 31, 2000
>> PAINEWEBBER / 56
<PAGE> 33
COMMON STOCK AND QUARTERLY INFORMATION
COMMON STOCK DIVIDEND HISTORY
During 1999, Paine Webber Group Inc. continued its policy of paying quarterly
common stock dividends. Dividends declared during the last twelve quarters were
as follows:
<TABLE>
<CAPTION>
Calendar Quarter 4th 3rd 2nd 1st
- -------------------------------------------------------------------
<S> <C> <C> <C> <C>
1999 $ .11 $ .11 $ .11 $ .11
1998 .11 .11 .11 .11
1997 .11 .10 .10 .10
===================================================================
</TABLE>
On February 3, 2000, Paine Webber Group Inc. declared a 2000 first quarter
dividend of $.12 per share, an increase of 9 percent over the fourth quarter of
1999. However, there is no assurance that dividends will continue to be paid in
the future, since they are dependent upon income, financial condition and other
factors, including the restrictions described in Note 7 in the Notes to
Consolidated Financial Statements.
MARKET FOR COMMON STOCK
The common stock of Paine Webber Group Inc. is listed on the New York Stock
Exchange ("NYSE") and the Pacific Stock Exchange. The following table summarizes
the high and low sales prices per share of the common stock as reported on the
Composite Tape for the periods indicated:
<TABLE>
<CAPTION>
High Low
- ---------------------------------------------------------------------------
<S> <C> <C> <C>
CALENDAR 1999 4th Quarter $ 44.00 $ 31.75
3rd Quarter 46.38 34.00
2nd Quarter 49.75 38.00
1st Quarter 42.06 32.63
- ---------------------------------------------------------------------------
Calendar 1998 4th Quarter $ 44.50 $ 20.38
3rd Quarter 53.38 29.25
2nd Quarter 49.44 39.44
1st Quarter 43.13 28.69
===========================================================================
</TABLE>
On February 11, 2000 the last reported sale price per share of Paine Webber
Group, Inc. common stock on the NYSE was $37.56. The approximate number of
holders of record of Paine Webber Group Inc. common stock as of the close of
business on February 11, 2000 was 6,077.
QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
<TABLE>
<CAPTION>
Income before Earnings per
(In thousands of dollars Total Net taxes and Net common share
except per share amounts) Revenues Revenues minority interest Income Basic/Diluted
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
CALENDAR 1999 4th Quarter $ 2,068,273 $ 1,390,210 $ 274,131 $ 166,294 $ .71/.67(1)
3rd Quarter 1,860,192 1,237,167 225,985 138,202 .91/.86
2nd Quarter 1,970,978 1,347,907 269,667 163,504 1.08/1.02
1st Quarter 1,923,310 1,314,891 265,019 160,599 1.06/1.01
- --------------------------------------------------------------------------------------------------------------------
Calendar 1998 4th Quarter $ 1,735,041 $ 1,096,493 $ 166,214 $ 100,427 $ .66/.63
3rd Quarter 1,809,148 1,031,476 138,599 82,892 .54/.51
2nd Quarter 1,900,283 1,162,168 211,999 129,501 .88/.82
1st Quarter 1,805,110 1,114,977 198,195 120,735 .82/.77
====================================================================================================================
</TABLE>
(1) Reflects the effect of unamortized discount of $59,883 charged to
stockholders' equity resulting from the redemption of preferred stock on
December 16, 1999.
The sum of the quarterly earnings per share amounts does not equal the annual
amount reported, as per share amounts are computed independently for each
quarter and the full year based on respective weighted-average common and common
equivalent shares outstanding during each period.
>> PAINEWEBBER / 57
<PAGE> 34
FIVE-YEAR FINANCIAL SUMMARY
(In thousands of dollars except share and per share amounts)
<TABLE>
<CAPTION>
Years Ended December 31, 1999 1998 1997
- ------------------------------------------------------------------------------------------------------
Amount % Amount % Amount %
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
REVENUES
COMMISSIONS
Listed securities
and options $1,115,508 21.1 $ 992,816 22.5 $ 884,341 21.5
Mutual funds and
insurance 545,125 10.3 438,598 10.0 415,855 10.1
Over-the-counter
securities and other 288,326 5.5 209,869 4.8 196,595 4.8
-------------------------------------------------------------------------
1,948,959 36.9 1,641,283 37.3 1,496,791 36.4
-------------------------------------------------------------------------
PRINCIPAL
TRANSACTIONS
Taxable fixed income 501,819 9.5 451,668 10.3 514,976 12.5
Equities 446,168 8.4 279,720 6.3 408,969 9.9
Municipals 162,093 3.1 137,419 3.1 131,703 3.2
-------------------------------------------------------------------------
1,110,080 21.0 868,807 19.7 1,055,648 25.6
-------------------------------------------------------------------------
ASSET MANAGEMENT 911,099 17.2 713,570 16.2 542,755 13.2
-------------------------------------------------------------------------
INVESTMENT BANKING
Underwriting fees,
management fees and
selling concessions:
Corporate securities 248,407 4.7 265,721 6.0 249,777 6.1
Municipal obligations 89,098 1.7 117,978 2.7 76,964 1.9
Private placement
and other fees 220,719 4.2 147,273 3.3 133,260 3.2
-------------------------------------------------------------------------
558,224 10.6 530,972 12.0 460,001 11.2
-------------------------------------------------------------------------
OTHER 170,951 3.2 142,242 3.2 138,633 3.4
-------------------------------------------------------------------------
INTEREST 3,123,440 59.0 3,352,708 76.1 2,963,124 72.1
-------------------------------------------------------------------------
TOTAL REVENUES 7,822,753 147.9 7,249,582 164.5 6,656,952 161.9
======================================================================================================
INTEREST EXPENSE 2,532,578 (47.9) 2,844,468 (64.5) 2,544,550 (61.9)
-------------------------------------------------------------------------
NET REVENUES $5,290,175 100.0 $4,405,114 100.0 $4,112,402 100.0
======================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Years Ended December 31, 1996 1995(1)
- ----------------------------------------------------------------------------
Amount % Amount %
- ----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
REVENUES
COMMISSIONS
Listed securities
and options $ 821,499 22.0 $ 816,517 24.4
Mutual funds and
insurance 380,982 10.2 302,654 9.0
Over-the-counter
securities and other 178,994 4.8 153,595 4.6
-----------------------------------------------
1,381,475 37.0 1,272,766 38.0
-----------------------------------------------
PRINCIPAL
TRANSACTIONS
Taxable fixed income 500,391 13.4 396,787 11.8
Equities 379,446 10.2 377,650 11.3
Municipals 143,778 3.8 139,764 4.2
-----------------------------------------------
1,023,615 27.4 914,201 27.3
-----------------------------------------------
ASSET MANAGEMENT 453,267 12.1 399,540 11.9
-----------------------------------------------
INVESTMENT BANKING
Underwriting fees,
management fees and
selling concessions:
Corporate securities 226,063 6.1 207,499 6.2
Municipal obligations 53,914 1.4 43,578 1.3
Private placement
and other fees 111,187 3.0 75,700 2.2
-----------------------------------------------
391,164 10.5 326,777 9.7
-----------------------------------------------
OTHER 146,708 3.9 150,056 4.5
-----------------------------------------------
INTEREST 2,309,737 61.9 2,256,750 67.4
-----------------------------------------------
TOTAL REVENUES 5,705,966 152.8 5,320,090 158.8
============================================================================
INTEREST EXPENSE 1,970,754 (52.8) 1,969,811 (58.8)
-----------------------------------------------
NET REVENUES $3,735,212 100.0 $3,350,279 100.0
============================================================================
</TABLE>
>> PAINEWEBBER / 58
<PAGE> 35
FIVE-YEAR FINANCIAL SUMMARY
(In thousands of dollars except share and per share amounts)
<TABLE>
<CAPTION>
Years Ended December 31, 1999 1998 1997
- ---------------------------------------------------------------------------------------------------
Amount % Amount % Amount %
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
NON-INTEREST EXPENSES
Compensation
and benefits $ 3,049,568 57.6 $ 2,601,364 59.1 $ 2,420,296 58.9
Office and equipment 352,712 6.7 301,845 6.9 275,532 6.7
Communications 168,071 3.2 154,272 3.5 153,285 3.7
Business development 122,678 2.3 103,287 2.3 82,099 2.0
Brokerage, clearing
and exchange fees 95,211 1.8 97,430 2.2 86,808 2.1
Professional services 136,758 2.6 123,265 2.8 129,066 3.1
Other 330,375 6.2 308,644 7.0 292,209 7.1
-----------------------------------------------------------------------
TOTAL NON-INTEREST
EXPENSES 4,255,373 80.4 3,690,107 83.8 3,439,295 83.6
-----------------------------------------------------------------------
Income before taxes
and minority interest 1,034,802 19.6 715,007 16.2 673,107 16.4
Provision for
income taxes 373,959 7.1 249,208 5.7 228,626 5.6
Income before
minority interest 660,843 12.5 465,799 10.5 444,481 10.8
Minority interest 32,244 0.6 32,244 0.7 29,032 0.7
-----------------------------------------------------------------------
Net income $ 628,599 11.9 $ 433,555 9.8 $ 415,449 10.1
===================================================================================================
EARNINGS PER
COMMON SHARE(2)
Basic $ 3.77(3) $ 2.91 $ 2.84
Diluted $ 3.56(3) $ 2.72 $ 2.56
-----------------------------------------------------------------------
WEIGHTED-AVERAGE
COMMON SHARES(2)
Basic 144,931,042 140,863,761 135,943,063
Diluted 153,214,444 150,611,425 153,347,984
-----------------------------------------------------------------------
DIVIDENDS DECLARED
PER SHARE
Common stock(2) $ .44 $ .44 $ .41
Preferred stock:
Redeemable
Preferred Stock $ 9.00 $ 9.00 $ 9.00
Convertible
Preferred Stock $ -- $ -- $ 6.00
===================================================================================================
</TABLE>
<TABLE>
<CAPTION>
Years Ended December 31, 1996 1995(1)
- ------------------------------------------------------------------------
Amount % Amount %
- ------------------------------------------------------------------------
<S> <C> <C> <C> <C>
NON-INTEREST EXPENSES
Compensation
and benefits $ 2,219,129 59.4 $ 2,004,585 59.8
Office and equipment 267,006 7.1 266,291 7.9
Communications 153,301 4.1 149,047 4.5
Business development 75,981 2.0 90,752 2.7
Brokerage, clearing
and exchange fees 87,839 2.4 93,657 2.8
Professional services 108,123 2.9 101,911 3.0
Other 263,800 7.1 541,359 16.2
--------------------------------------------
TOTAL NON-INTEREST
EXPENSES 3,175,179 85.0 3,247,602 96.9
--------------------------------------------
Income before taxes
and minority interest 560,033 15.0 102,677 3.1
Provision for
income taxes 194,649 5.2 21,927 0.7
Income before
minority interest 365,384 9.8 80,750 2.4
Minority interest 1,034 0.0 -- 0.0
--------------------------------------------
NET INCOME $ 364,350 9.8 $ 80,750 2.4
========================================================================
EARNINGS PER
COMMON SHARE(2)
Basic $ 2.55 $ 0.37
Diluted $ 2.24 $ 0.35
--------------------------------------------
WEIGHTED-AVERAGE
COMMON SHARES(2)
Basic 131,547,207 138,045,626
Diluted 153,829,662 152,268,070
--------------------------------------------
DIVIDENDS DECLARED
PER SHARE
Common stock(2) $ .32 $ .32
Preferred stock:
Redeemable
Preferred Stock $ 9.00 $ 9.00
Convertible
Preferred Stock $ 6.00 $ 6.00
========================================================================
</TABLE>
(1) The 1995 results include after-tax charges of $146 million ($230 million
before income taxes) related to the resolution of the issues arising from
the Company's sale of public proprietary limited partnerships.
(2) All share and per share data reflect a three-for-two common stock split in
November 1997.
(3) Reflects the effect of the unamortized discount of $59.9 million charged
to stockholders' equity resulting from the redemption of preferred stock
on December 16, 1999.
>> PAINEWEBBER / 59
<PAGE> 1
EXHIBIT 21
PAINE WEBBER GROUP INC.
SUBSIDIARIES OF THE REGISTRANT
The following are subsidiaries of Paine Webber Group Inc. (the "Company") as of
December 31, 1999 and the states or jurisdictions in which they are organized.
The names of certain subsidiaries have been omitted because, in the aggregate,
they do not constitute a significant subsidiary as of the end of the year
covered by this report. In each case, 100% of the voting securities are owned
directly or indirectly by the Company.
<TABLE>
<CAPTION>
State or
jurisdiction of
incorporation or
Name organization
<S> <C>
PaineWebber Incorporated Delaware
Correspondent Services Corporation Delaware
Mitchell Hutchins Asset Management Inc. Delaware
Paine Webber Real Estate Securities Inc. Delaware
PaineWebber Capital Inc. Delaware
PW Trust Company New Jersey
PaineWebber Services Incorporated Delaware
PaineWebber Life Insurance Company California
PaineWebber International (U.K.) Ltd. United Kingdom
PaineWebber Asia Ltd. Hong Kong
PaineWebber Incorporated of Puerto Rico Puerto Rico
</TABLE>
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Annual Report on Form 10-K
of Paine Webber Group Inc. of our report dated January 31, 2000, included in the
1999 Annual Report to Stockholders of Paine Webber Group Inc.
We also consent to the incorporation by reference in the registration statements
on Form S-8 (Registration Nos. 2-56284, 2-64984, 2-74819, 2-78627, 2-81554,
2-87418, 2-92770, 33-2959, 33-20240, 33-22265, 33-39539, 33-40489, 33-45583,
33-65296, 33-65298, 33-53489, 33-55451, 33-55457, 333-05269, 333-53037,
333-56021, 333-66249, 333-66251 and 333-66713) and on Form S-3 (Registration
Nos. 2-99979, 33-7738, 33-29253, 33-33613, 33-38960, 33-39818, 33-47267,
33-58124, 33-53776, 33-51149, 33-52695, 333-13831, 333-13831-01, 333-13831-02,
333-13831-03, 333-13831-04, 333-17913, 333-43585, 333-47223, 333-63107,
333-67187, 333-67187-01, 333-67187-02 and 333-67187-03) of Paine Webber Group
Inc. and in the related prospectuses, of our reports dated January 31, 2000 with
respect to the consolidated financial statements and financial statement
schedule of Paine Webber Group Inc. included and/or incorporated by reference in
this 1999 Annual Report on Form 10-K for the year ended December 31, 1999.
ERNST & YOUNG LLP
NEW YORK, NEW YORK
MARCH 30, 2000
<TABLE> <S> <C>
<ARTICLE> BD
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF PAINE WEBBER GROUP INC. FOR THE PERIOD ENDED DECEMBER
31, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<CIK> 0000075754
<NAME> PAINE WEBBER GROUP, INC.
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<EXCHANGE-RATE> 1
<CASH> 999,460
<RECEIVABLES> 10,287,937
<SECURITIES-RESALE> 15,923,948
<SECURITIES-BORROWED> 10,526,638
<INSTRUMENTS-OWNED> 21,144,830
<PP&E> 579,819
<TOTAL-ASSETS> 61,612,376
<SHORT-TERM> 1,884,250
<PAYABLES> 10,228,201
<REPOS-SOLD> 25,740,196
<SECURITIES-LOANED> 5,661,200
<INSTRUMENTS-SOLD> 7,099,208
<LONG-TERM> 5,223,826
393,750
0
<COMMON> 193,145
<OTHER-SE> 2,724,112
<TOTAL-LIABILITY-AND-EQUITY> 61,612,376
<TRADING-REVENUE> 1,110,080
<INTEREST-DIVIDENDS> 3,123,440
<COMMISSIONS> 1,948,959
<INVESTMENT-BANKING-REVENUES> 558,224
<FEE-REVENUE> 911,099
<INTEREST-EXPENSE> 2,532,578
<COMPENSATION> 3,049,568
<INCOME-PRETAX> 1,034,802
<INCOME-PRE-EXTRAORDINARY> 628,599
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 628,599
<EPS-BASIC> 3.77
<EPS-DILUTED> 3.56
</TABLE>
