<PAGE>
FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (FEE REQUIRED)
For the fiscal year ended December 31, 1999
-----------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
For the transition period from to
----------------- -----------------
Commission File Number 1-9137
ATALANTA/SOSNOFF CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3339071
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
101 Park Avenue, New York, New York 10178
- ----------------------------------------- -------
(Address of principal executive officers) (zip code)
(Registrant's telephone number, including area code) (212) 867-5000
--------------
Securities registered pursuant to Section 12(b) of the Act:
Name of Each Exchange on
Title of Each Class Which Registered
Common Stock, par value $.01 per share New York Stock Exchange
- -------------------------------------- -----------------------
Securities registered pursuant to Section 12 (g) of the Act:
NONE (Title of Class)
----
1
<PAGE>
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 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 ]
Number of shares of common stock *
outstanding at March 21, 2000: 9,063,627
* (voting; only class outstanding)
Aggregate market value of voting and
non-voting common equity held by non-
affiliates, as of March 21, 2000: $12,022,355
Documents incorporated by reference: Proxy Statement for the 2000 Annual
Meeting of Stockholders (incorporated in part in Form 10-K, Part III)
Exhibit Index is located on page 30.
2
<PAGE>
SPECIAL NOTE REGARDING FORWARD LOOKING STATEMENTS
Certain statements in this Annual Report on Form 10-K under the captions
"Business" and "Management's Discussion and Analysis of Financial Condition and
Results of Operations", and elsewhere in this Report constitute "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. Such forward looking statements involve known and unknown risks,
uncertainties and other factors, which may cause the actual results, performance
or achievements of the Company to be materially different from any future
results, performance or achievements expressed or implied by such
forward-looking statements. Such factors include, among others, the following:
general economic and business conditions; the loss of, or the failure to
replace, any significant clients; changes in the relative investment performance
of client or firm accounts and changes in the financial marketplace,
particularly in the securities markets. These forward-looking statements speak
only as of the date of this Annual Report. The Company expressly disclaims any
obligation or undertaking to release publicly any updates or revisions to any
forward-looking statements contained herein to reflect any change in the
Company's expectations with regard thereto or any change in events, conditions
or circumstances on which any such statement is based.
3
<PAGE>
PART I
Item 1. Business
General
Atalanta/Sosnoff Capital Corporation, a New York Stock Exchange listed
company, through its operating subsidiaries, Atalanta/Sosnoff Capital
Corporation (Delaware) ("Capital") and Atalanta/Sosnoff Management Corporation
("Management"), provides discretionary investment management, brokerage and
other related services. The term "Company" as used herein refers to
Atalanta/Sosnoff Capital Corporation and its subsidiaries. Capital and
Management are both federally registered investment advisors. Management is also
federally registered as a broker-dealer.
Client Relationships
General. Investment management clients include corporate and public
retirement plans, endowments, charitable and religious organizations, and
individuals in both taxable and tax-exempt accounts. The Company manages
accounts of its clients under investment advisory agreements. These agreements
are generally terminable upon short notice and provide for compensation based on
the market value of the client assets under management. Generally, annual
institutional account fees start at 1% of assets under management, and, for
larger accounts, may include performance fees or reductions in fees on
incremental assets to as low as 0.2%. Individual and smaller institutional
account fees are generally 1% of assets under management. Some institutional
account clients have consented to the use of Management as broker for certain
portfolio transactions. The Company generally requires that individual and
smaller institutional account clients use Management as broker.
The largest single client generated approximately 5.7% of the Company's
operating revenues for the year ended December 31, 1999. The Company's ten
largest clients, as of December 31, 1999, accounted for approximately 24.3% of
total operating revenues for the year then ended.
Assets under management increased 11% in 1999, from $2.41 billion at December
31, 1998 to $2.69 billion at December 31, 1999. This increase is primarily the
result of strong performance results, partially offset by net cash outflows in
client accounts totaling $308 million in 1999. (See "Institutional Clients" on
page 4 for further discussion and "Management's Discussion and Analysis of
Financial Condition and Results of Operations - Financial Summary.")
The following table depicts assets under management at the last three
year-ends by type of client:
($ millions)
1999 1998 1997
---- ---- ----
Institutional $2,086 $1,963 $2,355
High Net Worth 376 315 198
Investment Partnerships 126 81 72
Wrap 72 41 57
Mutual Funds 26 10 n/a
------ ------ ------
Totals $2,686 $2,410 $2,682
====== ====== ======
4
<PAGE>
Institutional Clients. Capital manages accounts of institutional clients
with assets under management of approximately $2.1 billion as of December 31,
1999, compared with $2.0 billion at the end of 1998, and $2.4 billion at the end
of 1997. Investment performance in 1999 was exceptionally strong on an absolute
and relative basis for equity and balanced accounts. Underperformance concerns
(from 1996 primarily) on the part of consultants caused some large institutional
clients to close their accounts in the 1996-1998 period, while others took cash
away. The following table shows the types of institutional clients whose assets
are managed by Capital and, for each type, the assets under management as of
December 31, 1999:
Dollars in
Type of Account Millions % of Total
--------------- ---------- ----------
Corporate employee
benefit plans $399 19%
Not-for-profit
organizations 416 20
Jointly-trusteed
collective bargaining
employee plans 677 32
Governmental employee
benefit plans 411 20
Taxable 183 9
------ ---
Total $2,086 100%
====== ====
Net outflows in client accounts slowed significantly over the eighteen
months ended December 31, 1999, and the Company believes its managed asset base
has stabilized. While the Company's performance and peer group rankings improved
in 1998 and 1999, it will take at least another year of strong performance
results before the Company can expect to add meaningful new institutional
assets.
High Net Worth ("HNW") Clients. Since 1984, Management has managed assets of
individual and smaller institutional accounts. Assets under management in this
HNW business increased 19% during 1999 to $376 million at December 31, 1999,
from $315 million at December 31, 1998 and $198 million at December 31, 1997.
The primary reason for the 1999 increase was strong performance in client
accounts. The substantial increase in 1998 is primarily the result of the
Company agreeing to manage and service certain accounts (the "SVP Accounts")
previously managed exclusively by a Senior Vice President of Management, Mr.
William M. Knobler ("SVP"). These accounts were previously excluded from assets
under management.
Effective October 1, 1998, the Company entered into a new facilities
agreement with the SVP for the period ending December 31, 2000 under which the
SVP is relinquishing over time the exclusive right to receive the net operating
earnings generated by the investment management and brokerage services provided
to the SVP Accounts to the Company.
5
<PAGE>
Pursuant to this Agreement, the Company is making payments to the SVP in
three installments in January of 1999, 2000 and 2001 based upon a multiple of
annualized revenues of the SVP Accounts in the fourth quarter of 1998, 1999 and
2000, respectively. The Company estimates that the related compensation expense
will total approximately $3 million, based on the SVP Accounts' current asset
value, and is being recognized ratably as compensation expense over the term of
the arrangement. Pursuant to this Agreement, $1,500,000 and $375,000 of
compensation expense was recorded in 1999 and 1998, respectively.
Additionally, the SVP's compensation related to the pre-tax operating income
generated by the SVP Accounts has or will decline from 100% in the twelve-month
period ended September 30, 1998, to 50% in the comparable 1999 period, and to
25% in the comparable 2000 period. The SVP will be required to remain an
employee of the Company through 2000, and may remain an employee or consultant
thereafter.
Company-Sponsored Investment Partnerships. Capital is the general partner of
three investment limited partnerships and the investment manager of an offshore
investment fund, all with different investment objectives and client profiles,
with total aggregate assets of $126 million at December 31, 1999, compared with
$81 million at the end of 1998. Capital receives a basic management fee from
each entity at an annual rate of 1% of total assets. The agreements contain
various provisions regarding the bearing of expenses by each of the entities.
One of the partnerships and the offshore fund, both formed in 1997, are charged
by Capital an incentive fee of 20% of net profits earned.
Wrap Accounts. The Company manages $72 million of accounts custodied at and
sponsored by various brokerage firms (i.e. "Wrap" accounts) at December 31,
1999, compared with $41 million at the end of 1998. The increase in these
accounts is primarily due to $23 million in new accounts and strong performance
in client accounts in 1999.
Mutual Funds. In June, 1998 the Company started its first mutual fund, the
Atalanta/Sosnoff Fund. In July 1999, the Company started three additional mutual
funds: the Atalanta/Sosnoff Value Fund, the Atalanta/Sosnoff Balanced Fund, and
the Atalanta/Sosnoff Focus Fund (collectively the "Funds"). Capital acts as the
investment advisor to the Funds, and Management acts as the distributor. The
Company invested $9.1 million in the Funds in 1998, and an additional $6 million
during 1999. The market value of the Funds totaled $26 million at December 31,
1999. Capital earns an advisory fee of .75% per annum on each Fund, but the
Funds are currently waiving that fee and the Company does not expect to begin to
collect an advisory fee until that Fund's assets reach approximately $20
million.
Investment Management and Research
The Company currently manages $2.7 billion in equity, balanced and fixed
income accounts for corporations, public funds, Taft-Hartley clients,
foundations, charitable organizations and individuals. Institutional clients are
the source of 77% of total managed assets. The Company's subsidiaries have been
registered as investment advisors since 1982 (Capital) and 1984 (Management).
Institutional clients and HNW clients are managed by Capital. Management also
provides brokerage services to its advisory clients and to certain of Capital's
clients.
The Company's investment philosophy seeks to identify companies that are
entering into a cycle of accelerating earnings momentum. Clients retain the
Company primarily as a domestic large-cap core equity and balanced manager.
The Company's equity methodology focuses on two levels: thematics and stock
selection. Through its Investment Policy Committee, composed of Martin T.
Sosnoff, Craig B. Steinberg and Paul P. Tanico, the
6
<PAGE>
Company seeks to identify change at the margin. Major themes unfold during
economic cycles they embrace, geopolitical realignments, changes in government
regulation and Federal Reserve Board policy emphasis.
The process seeks to identify and overweight "event-driven" companies and
sectors with benevolent product profile cycles and accelerating earnings. The
Company believes that the vision and motivation of management are common
critical variables in outperformance. The Company's methodology is biased toward
management with meaningful equity participation.
The two principals, Martin T. Sosnoff and Craig B. Steinberg, have worked
together in the investment arena for more than 14 years. The continuity of the
team and its years of experience are critical elements in managing investments.
The portfolio managers are all experienced research analysts. Portfolio
decisions are implemented on behalf of all the Company's clients, subject to
individual client guidelines, restrictions and cash flows.
The Company's Investment Policy Committee, headed by Mr. Sosnoff as Chief
Investment Officer, is responsible for managing the portfolios of the Company's
clients. All members of the Committee participate in the management of all
accounts, except the SVP Accounts. When requested, Mr. Knobler participates in
the Investment Policy Committee process on an ad hoc basis. Each client
portfolio is comprised of securities selected by the Committee, subject to risk
tolerances, concentration limits, leverage policies and other restrictions
determined by each client with, in certain cases, the assistance of the Company.
Mr. Sosnoff has managed money since the late-1960's through several market
cycles. Throughout that time, Mr. Sosnoff has applied a consistent investment
style and philosophy to the management of client accounts.
The Company believes that, in addition to performance, client service is
paramount in the money management business. Portfolio managers are particularly
attuned to the needs of the Company's clients. The Company believes that its
consistent investment style since inception and continued emphasis on frequent
communication with clients distinguishes it from other managers.
The Company's mission is to maintain a top quartile performance ranking year
over year, cycle over cycle and decade over decade. Due to performance results
for clients significantly below relevant benchmarks in 1996, the Company's three
and five year peer group rankings were low. Strong absolute and relative
performance results in 1998 and 1999 have improved the peer group rankings, but
at least another year of good results is necessary for marketing activity to
show significant success.
Marketing and Business Development
Institutional. The Company's institutional clients generally allocate their
assets among several investment managers and may change the allocation from time
to time. In addition, clients allocate their assets among various market sectors
and types of investments, and may change these allocations in response to
prevailing market conditions or changes in the client's investment objectives.
Net withdrawals from institutional client accounts totaled $347 million in
1999, compared with net withdrawals of $909 million in 1998, and net withdrawals
of $624 million in 1997. The Company believes that these net withdrawals are
primarily the result of performance concerns. The Company does not believe its
institutional marketing efforts will add significant new assets for at least
another year, provided investment performance results remain strong.
HNW. Individual and smaller institutional client portfolios are managed on
the same basis as the management of the accounts of institutional clients.
Account service representatives assist new clients in determining appropriate
risk tolerances, concentration limits, leverage policies and other restrictions,
and provide ongoing account servicing
7
<PAGE>
to existing clients. Net withdrawals to HNW client accounts totaled $8 million
in 1999, compared with net additions of $70 million in 1998 and net withdrawals
of $43 million in 1997. The Company believes that the net withdrawals are
primarily the result of performance concerns. The 1998 net increase is due to
$110 million of SVP accounts now accounted for in the client asset base of the
Company (as previously discussed), partially offset by net withdrawals in
existing accounts totaling $40 million. The Company has devoted additional
resources to this market.
Investment Partnerships. At December 31, 1999 the Company was the
general partner of and managed $126 million in three limited partnership
vehicles, primarily for the benefit of high net worth individuals as limited
partners. Two of the partnerships, Atalanta Partners, L.P. and Atalanta
Variable Fund, L.P., have been managed by Mr. Martin T. Sosnoff since the
late 1960's.
The other limited partnership, Sabre Partners, L.P., which began in 1997,
is primarily managed by Mr. Craig B. Steinberg.
Wrap. The Company began to focus some of its marketing efforts in 1993 on
the managed account ("Wrap") programs offered by certain large financial
services firms. As of December 31, 1999, $72 million was under management from
such programs, compared with $41 million at the end of 1998 and $57 million at
the end of 1997. The Company believes the reduction in 1998 is due to
performance concerns from 1996. The Company believes this business represents an
efficient means to gather assets, and is optimistic about its future growth,
subject to performance considerations. The Company has also devoted additional
resources to this market.
Mutual Funds. The Company began its first mutual fund in 1998, the
Atlanta/Sosnoff Fund. In July 1999, the Company started three additional mutual
funds: the Atalanta/Sosnoff Value Fund, the Atalanta/Sosnoff Balanced Fund, and
the Atalanta/Sosnoff Focus Fund (collectively the "Funds"). The Company invested
$9.1 million in 1998 and an additional $6 million during 1999 in the Funds, and
is marketing them directly to certain of its current clients and prospects, as
well as through several no-transaction-fee programs sponsored by large financial
services companies.
Competition
The investment management business is highly competitive. The Company
competes with numerous investment management firms having varying investment
methods and philosophies. In addition to competition from other discretionary
investment managers, the Company, particularly in its individual and smaller
institutional account business, competes with investment alternatives offered by
mutual funds, insurance companies, banks, securities dealers and other financial
institutions. Also, the allocation by many clients of assets away from active
equity investment to index funds and similar products has enhanced the ability
of firms offering non-equity products and passive equity management which the
Company does not offer, including much larger firms with diversified product
lines, to compete with the Company.
The Company's performance results since inception rank above the median
among peer group money managers. Because of excellent performance results in
1999 and 1998, the Company's one year and three year ranking is very good. The
Company believes that the most important factors affecting its capacity to
compete for new business will be to sustain top quartile investment performance
results, perceived quality and productivity of investment professionals, as well
as a continued commitment to a strong marketing effort and an exemplary level of
client service.
Most prospective clients perform a thorough review of an investment
manager's background, investment policies and performance before committing
assets to that manager. In many cases, prospective clients invite a
8
<PAGE>
number of competing firms to make presentations. The process of obtaining a new
client typically takes from 12 to 18 months from the time of the initial
contact.
The Company believes it has the capacity to continue to increase the number
of client accounts under management without significant increases in fixed costs
or personnel and without adversely affecting the quality of service to existing
clients. The Company has continued to implement enhancements to its portfolio
accounting, allocation and monitoring systems to enable it to more efficiently
manage client accounts.
Brokerage
Many of the Company's clients use Management as broker for their account
transactions, to the extent consistent with the client's best interests and as
permitted by applicable law. As of December 31, 1999, some of Capital's
institutional clients, accounting for approximately $691 million (33%) in
institutional assets under management, have consented to the use of Management
as broker. The use of Management as broker is an integral part of the services
offered to substantially all of Management's HNW clients (except for those
accounts obtained through Wrap programs). Management also provides brokerage
services to the Company's officers and employees.
Management clears and carries all accounts on a fully-disclosed basis through
Bear, Stearns Securities Corp. ("Bear Stearns"). Under these arrangements, Bear
Stearns performs administrative functions, such as record keeping, confirmation
of transactions and preparation and transmission of monthly statements. Bear
Stearns also extends margin credit to Management's brokerage customers.
Management owns a seat on the New York Stock Exchange, Inc. ("NYSE") and
is a member of, and owns a seat on, the Chicago Board Options Exchange, Inc.
("CBOE"). These seats are leased at market rates to others, and lease
rentals for 1999 totaled $270,010.
Employees
At December 31, 1999, the Company employed 45 persons on a full-time basis,
comprised of 3 senior executives, 7 research, 7 sales and marketing, 10 client
service, 10 operations, accounting and systems, 3 trading and 5 administrative
or secretarial positions. The Company considers its employee relations to be
good.
Sales personnel receive additional compensation based upon the advisory fees
of clients which they were responsible for successfully soliciting on behalf of
the Company. In addition, the Company has entered into agreements with various
sales personnel which, among other things, limit the extent to which such
personnel may solicit clients of the Company if their employment is terminated.
Some of these agreements provide that, in certain circumstances, an employee, in
the event of termination, may continue to receive a percentage of fees received
by the Company from clients solicited by that employee. The amounts payable with
respect to these salespersons' agreements are not expected to be material.
Regulation
The securities industry in the United States is subject to extensive
regulation under both federal and state laws. Management is registered as a
broker-dealer and investment advisor with the Securities and Exchange Commission
("SEC"), and Capital is registered as an investment advisor with the SEC.
Management's brokerage operations are also subject to regulation by
self-regulatory organizations, including the National Association of Securities
Dealers, Inc., and the CBOE. As of December 31, 1999, Management resigned as a
member firm of the NYSE. Securities firms are also subject to regulation by
state securities administrators in the states in which they conduct business.
The Company's subsidiaries are registered as a broker-dealer and/or an
investment advisor in all 50 states.
9
<PAGE>
Broker-dealers and investment advisors are subject to regulation covering
virtually all aspects of their business. Additional legislation, changes in
rules promulgated by the SEC and self-regulatory organizations, or changes in
the interpretation or enforcement of existing laws and rules, may directly
affect the mode of operation and profitability of the Company. The SEC,
self-regulatory organizations and state securities commissions conduct routine
inspections of the Company's businesses and may conduct administrative
proceedings which can result in censure, fine, suspension or expulsion of a
broker-dealer or an investment advisor, and/or their officers or employees in
the event of violations of the laws and regulations they administer.
The Company's investment advisory agreements with its clients provide that
they may not be assigned without the consent of the client. "Assignment" is
defined in the Investment Advisers Act of 1940 to include the direct or indirect
transfer or hypothecation of a controlling block of the Company's voting
securities. Martin T. Sosnoff, Chairman of the Board of the Company, owns
approximately 77% of the NYSE listed company, Atalanta/Sosnoff Capital
Corporation (the "Holding Company"), which directly or indirectly owns Capital
and Management, both of which are registered investment advisors. Accordingly,
the voluntary transfer (by sale, merger or other disposition) or involuntary
transfer (by death or disability) by him of a controlling block of the Holding
Company's securities would result in such an "assignment" requiring client
consent. Although no assurance can be given in these circumstances, the Company
believes it would be able to retain its existing client base. The Company's
Certificate of Incorporation contains provisions intended to preclude the
possibility that the accumulation by third parties of a substantial position in
the Company's common stock would be deemed an "assignment" of the Company's
advisory agreements.
Many of the Company's clients are subject to the Employee Retirement Income
Security Act of 1974 ("ERISA"). The accounts of these clients are subject to a
number of ERISA provisions governing, among other things, fiduciary obligations
and permissible investments and investment methods.
As a registered broker dealer, Management is required under the rules of the
SEC to maintain minimum net capital at all times equal to at least $250,000. In
addition, Management's ratio of aggregate indebtedness to net capital may not
exceed 15 to 1, and equity capital may not be withdrawn, or dividends paid, from
Management if the resulting ratio of aggregate indebtedness to net capital would
exceed 10 to 1. Management's minimum net capital requirement as of December 31,
1999 was $250,000; it had net capital at such date of $11.4 million, and a ratio
of aggregate indebtedness to net capital of 0.27 to 1.
Item 2. Properties.
The Company occupies office space at 101 Park Avenue, New York, New York
under a lease which term expires in August 2002. In October 1999, the Company
entered into a new 15 year lease on its existing office space in New York, which
commences in September 2002.
Item 3. Legal Proceedings.
There are no legal proceedings to which the Company or any of its property
is subject which, in the opinion of the Company's management, would have a
material adverse effect upon the Company's business or operations.
Item 4. Submission of Matters to a Vote of Security Holders.
There were no matters submitted to a vote of security holders during the
fourth quarter of 1999.
10
<PAGE>
PART II
Item 5. Market for the Registrant's Common Equity and Related Stockholders
Matters.
The Company's common stock is listed on the NYSE under the trading symbol
"ATL." The following table sets forth for the quarters indicated, the high and
low closing sales prices of the common stock, as reported on the New York Stock
Exchange Composite Transactions Tape, together with special dividends declared
each year.
1999 1998 1997
Quarter Ended High Low High Low High Low
------------- ---- --- ---- --- ---- ---
March 31 $10.56 $6.75 $11.81 $8.56 $8.88 $8.25
June 30 10.00 7.50 10.88 9.50 11.38 8.75
September 30 10.13 7.13 9.88 7.63 13.13 11.13
December 31 8.88 7.63 9.00 7.00 12.06 11.38
Special Dividends
Declared None $.25 $.20
The approximate number of record holders of common stock was 34 on December
31, 1999.
The Company's Board of Directors will periodically review the Company's
earnings, liquidity and anticipated cash needs and, subject to these
considerations, it may consider the payment of dividends in the future.
For information with respect to stock and option awards made during 1999,
see "Executive Compensation" and "Stock Option and Long Term Incentive Plans" in
the Company's Proxy Statement for its 2000 Annual Meeting of Stockholders,
incorporated by reference in Item 11 of Part III of this Annual Report on Form
10-K. Shares of common stock awarded in 1997 under the Long Term Incentive Plan
were issued to senior executives of the Company without registration under the
Securities Act of 1933 in reliance on the exemption therefrom in Section 4(2)
thereof for transactions not involving a public offering.
11
<PAGE>
Item 6. Selected Financial Data
SELECTED FINANCIAL DATA
FIVE YEAR REVIEW
<TABLE>
<CAPTION>
(dollars and shares in thousands,
except per share amounts) 1999 1998 1997 1996 1995
---------- -------- --------- -------- ---------
Summary of Operations:
<S> <C> <C> <C> <C> <C>
Net income $ 17,564 $ 7,784 $ 9,849 $ 8,802 $ 10,048
Per share - diluted $ 1.91 $ .81 $ 1.08 $ 1.00 $ 1.14
- basic $ 1.91 $ .81 $ 1.09 $ 1.00 $ 1.14
Total Revenues $ 51,075 $ 27,304 $ 31,680 $ 27,385 $ 29,915
Operating revenues (1) $ 18,270 $ 16,980 $ 18,829 $ 20,759 $ 20,049
Operating expenses (2) $ 16,611 $ 13,609 $ 13,707 $ 12,022 $ 12,381
Operating income $ 1,659 $ 3,371 $ 5,122 $ 8,737 $ 7,668
Operating margin 9% 20% 27% 42% 38%
Per employee:
Operating revenues $ 406 $ 435 $ 471 $ 472 $ 477
Operating expenses $ 369 $ 349 $ 343 $ 273 $ 295
Operating income $ 37 $ 86 $ 128 $ 199 $ 182
Net interest and dividend income $ 708 $ 1,557 $ 2,997 $ 1,843 $ 1,881
Net realized and unrealized
gains from investments $ 32,097 $ 8,767 $ 9,854 $ 4,783 $ 7,985
Return on average equity 19% 10% 15% 15% 20%
Year-end Position:
Total assets $123,623 $ 90,686 $ 75,413 $ 64,696 $ 58,497
Shareholders' equity $101,776 $ 82,022 $ 70,556 $ 61,628 $ 54,517
Book value per share $ 11.21 $ 8.78 $ 7.36 $ 6.99 $ 6.19
Cash dividends declared per share None $ .25 $ .20 $ .15 .15
Common stock, shares outstanding 9,075 9,338 9,587 8,812 8,812
Number of employees 45 39 40 44 42
Assets under management (millions) $ 2,686 $ 2,410 $ 2,682 $ 2,763 $ 3,611
Average assets under management
(millions) $ 2,412 $ 2,402 $ 2,804 $ 3,219 $ 3,267
Percentage of average assets:
Operating revenues .76% .71% .67% .64% .61%
Operating expenses .69% .57% .49% .37% .38%
Operating income .07% .14% .18% .27% .23%
</TABLE>
(1) Operating revenues consist of advisory fees, commissions and other
operating revenue.
(2) Operating expenses consist of total costs and expenses less an
investment performance bonus of $3,446,000 in 1999, pursuant to the
Management Incentive Plan, which was paid to the Chief Executive
Officer. (See Management's Discussion and Analysis.)
12
<PAGE>
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Financial Summary
Investment performance, over 39% for equity clients in 1999, was strong on an
absolute and relative basis and continued the improvement since 1996. The
Company's peer group ranking continued to improve - from above the median in
1997, to top quartile in 1998 and 1999. The 1996 and 1997 underperformance
concerns led to net client outflows of $308 million in 1999. However, managed
assets increased by 11% in 1999 because of strong performance results. Income
before taxes increased 127% in 1999, based on a 218% increase in other income,
partially offset by weaker operating results as compared with 1998.
Earnings per share totaled $1.91 in 1999, compared with $.81 in 1998 and
$1.08 in 1997 (all earnings per share amounts represent diluted earnings per
share). Net income was $17.6 million in 1999, compared with $7.8 million in 1998
and $9.8 million in 1997.
Revenues for 1999 increased 87% to $51.1 million, from $27.3 million in 1998
and $31.7 million in 1997. Revenue from advisory fees and commissions
("operating revenues") increased 8% to $18.3 million in 1999, from $17.0 million
in 1998 and $18.8 million in 1997.
Costs and expenses for 1999 increased 47% to $20.1 million, from $13.6
million in 1998 and $13.7 million in 1997. In each of 1999 and 1998, the Company
recorded $2.25 million of non-cash compensation charges ("NCCC") related to
awards of restricted stock in 1997, compared with $563,000 in 1997 (see Note 9
to the audited financial statements). In 1999 and 1998, the Company also
recorded $1,500,000 and $375,000, respectively, of compensation expense related
to a Senior Vice President's relinquishment of the exclusive right to receive
the net operating earnings attributable to certain managed accounts to the
Company (The "SVP Accounts" - see Note 5 to the audited financial statements).
The Company adopted an amendment to its Management Incentive Plan ("MIP")
(see Note 8 to the audited financial statements) in 1999 whereby an annual bonus
is earned by the Chief Executive Officer (CEO) based upon pre-tax earnings of
the proprietary accounts of the Company in excess of a base index return, as
defined, subject to a ceiling of 10% of total pre-tax income. Included in
compensation expenses related to this is an accrued investment performance bonus
to the CEO of $3,446,000 in 1999.
During 1997, special charges (classified in both separation costs and general
and administrative expenses) totaling $1.9 million ($.12 per share after taxes)
were charged to operations owing to the termination without cause of the
Company's former president ($1.4 million) and the costs incurred by the Company
associated with an abandoned effort to take the Company private. Net income
before special charges totaled $10.9 million in 1997, or $1.20 per share.
Excluding these charges in 1999, 1998 and 1997 (see table below), operating
income totaled $5.4 million (30% margin) in 1999, $6.0 million (35% margin) in
1998, and $7.6 million (40% margin) in 1997.
13
<PAGE>
- ------------------------------------------------------------------------------
Operating Income ($000)
---------------- ------
1999 1998 1997
---- ---- ----
Operating revenues, reported $ 18,270 $ 16,979 $ 18,829
Costs and expenses, reported (20,057) (13,609) (13,707)
Add MIP accrued investment performance 3,446
-------- -------- --------
Operating income before adjustments 1,659 3,370 5,122
Adjustments:
Non-cash compensation charges 2,250 2,250 563
SVP account charges 1,500 375 --
1997 special charges -- -- 1,892
-------- -------- --------
Operating income, adjusted $ 5,409 $ 5,995 $ 7,577
======== ======== ========
- ------------------------------------------------------------------------------
The increase in operating revenues in 1999 was primarily due to the increase
in assets under management of $276 million (11%) in 1999, to $2.69 billion at
year-end from $2.41 billion at the end of 1998. Average assets under management
totaled $2.41 billion in 1999, compared with $2.40 billion in 1998, and $2.80
billion in 1997.
Cash, cash equivalents and marketable securities totaled $98 million at
December 31, 1999, compared with $78 million a year ago. Book value per share
grew 28% to total $11.21 at December 31, 1999, compared with $8.78 at the end of
1998.
14
<PAGE>
Assets Under Management
Managed assets totaled $2.69 billion at the end of 1999, compared with $2.41
billion at the end of 1998 and $2.68 billion at the end of 1997. Assets under
management as of the end of each of the last three years are as follows:
<TABLE>
<CAPTION>
($ millions)
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Institutional $2,086 $1,963 $2,355
High Net Worth 376 315 198
Investment Partnerships 126 81 72
Wrap 72 41 57
Mutual Funds 26 10 n/a
------ ------ ------
Total Managed Assets $2,686 $2,410 $2,682
====== ====== ======
</TABLE>
The $276 million net increase in managed assets during 1999 is comprised
of increases of $58 million from new client accounts and $584 million in
positive performance results, reduced by (i) $219 million in closed client
accounts; and (ii) $147 million in net withdrawals from existing accounts. The
closed accounts are primarily the result of client reallocations and indexing of
funds.
In the two years ended December 31, 1999, managed assets increased by $4
million, comprised of increases in new accounts of $72 million and $1,186
million in positive performance results, reduced by (i) $902 million in closed
client accounts; and (ii) $352 million in net withdrawals from existing
accounts. The Company's second largest account ($311 million) terminated in May,
1998. This account generated 3.8% of the Company's operating revenues in 1997,
and 2.8% in 1998.
Performance in equity and balanced accounts was strong on an absolute and
relative basis in 1999 and 1998, and the Company's peer group rankings continue
to improve. Net outflows in client accounts slowed significantly over the last
six months of 1998 through December 1999, and the Company believes its managed
asset base has stabilized. Barring a market correction, the Company expects its
asset base to continue to grow in 2000.
Earnings
Operating revenues increased 8% in 1999 to $18.3 million, compared with $17.0
million in 1998 and $18.8 million in 1997. Average assets under management were
basically flat in 1999, after a 14% decrease in 1998.
15
<PAGE>
In 1999 operating revenues were .76% of average managed assets, compared
with .71% in 1998 and .67% in 1997. This reflects an increase in the weighted
advisory fee yield because the accounts lost over the last three years were
generally larger accounts with lower fee structures.
Advisory fees, which are earned based on the value of assets under
management, are the Company's primary source of operating revenues. Advisory
fees increased 6% to $16.3 million in 1999, compared with $15.4 million in 1998
and $17.3 million in 1997. Advisory fees were 89%, 91% and 92% of operating
revenues in 1999, 1998 and 1997, respectively.
Transaction fees (commissions) earned by Management are the primary source of
the Company's other operating revenues. Commissions are derived from
Management's individual and small institutional accounts, investment
partnerships and specific institutional accounts that have given Management the
authority to execute trades. Commissions increased 25% to $1.44 million in 1999,
compared with $1.15 million in 1998 and $1.16 million in 1997. The 1999 increase
reflects the increase in managed assets during 1999.
- --------------------------------------------------------------------------------
Operating Expenses ($000)
------------------ ------
1999 1998 1997
---- ---- ----
Cost and expenses, reported $20,057 $13,609 $13,707
Adjustments:
MIP accrued investment
performance bonus (3,446) --- ---
Non-cash compensation charges (2,250) (2,250) (563)
SVP account charges (1,500) (375) ---
1997 special charges --- --- (1,892)
----------- ----------- ---------
Operating expenses, adjusted $12,861 $10,984 $11,252
======= ======= =======
- --------------------------------------------------------------------------------
Reported costs and expenses totaled $20.1 million in 1999, compared with
$13.6 million in 1998 and $13.7 million in 1997. The 1999 amount reflects $7.2
million in compensation charges detailed above. Before these 1999 items,
operating expenses totaled $12.9 million in 1999. The 1998 amount reflects $2.6
million in compensation charges detailed above. Before these 1998 items,
operating expenses totaled $11.0 million in 1998. The 1997 amount reflects $1.9
million in special charges and $563,000 in non-cash compensation charges. Before
these 1997 charges, operating expenses totaled $11.3 million in 1997.
16
<PAGE>
Excluding these adjustments, 1999 operating expenses increased 17% compared
with 1998, after a 2% decline in 1998 compared with 1997. Adjusted operating
expenses were 70% of operating revenues and .53% of average managed assets in
1999, compared with 65% and .46% in 1998, and 60% and .40% in 1997.
- --------------------------------------------------------------------------------
Compensation Expenses ($000)
--------------------- ------
1999 1998 1997
---- ---- ----
Compensation expenses, reported $ 15,318 $ 10,043 $8,070
Adjustments:
MIP accrued investment performance
bonus (3,446) --- ---
Non-cash compensation charges (2,250) (2,250) (563)
SVP account charges (1,500) (375) --
-------- -------- ------
Compensation expenses, adjusted $ 8,122 $ 7,418 $7,507
======== ======== ======
- --------------------------------------------------------------------------------
Reported compensation expenses increased 53% to $15.3 million in 1999,
compared with $10.0 million in 1998 and $8.1 million in 1997, because of the
charges noted above. Compensation expenses adjusted for these items increased 9%
in 1999 to total $8.1 million, compared with $7.4 million in 1998 and $7.5
million in 1997. The 1999 increase is primarily due to increases in bonuses to
employees and an increase in the Company's annual contribution to the employee
Profit Sharing Plan. Adjusted compensation expenses were 44% of operating
revenues and .34% of average managed assets in 1999, compared with 44% and .31%
in 1998, and 40% and .27% in 1997.
The Company has a Management Incentive Plan ("MIP") which covers bonus
payments to certain executives. Under the MIP, the payment of operating bonuses
to these executives is based on the annual growth in operating income, after
adjusting for certain charges. In 1999, 1998 and 1997 participating executives
were awarded no operating bonuses under the MIP. The Company adopted an
amendment to the MIP (see Note 8 to the audited financial statements) in 1999
under which an annual investment performance bonus is earned by the Chief
Executive Officer ("CEO") based upon pre-tax earnings of proprietary accounts of
the Company in excess of a base index return, as defined, subject to a ceiling
of 10% of total pre-tax income. Included in compensation expenses related to the
MIP is an accrued investment performance bonus to the CEO of $3,446,000 in 1999.
17
<PAGE>
- --------------------------------------------------------------------------------
Non-Compensation Expenses ($000)
------------------------- ------
1999 1998 1997
---- ---- ----
Non-compensation expenses, reported $4,740 $3,566 $ 5,637
Adjustment:
1997 special charges --- --- (1,892)
------ ------ -------
Non-compensation expenses, adjusted $4,740 $3,566 $ 3,745
====== ====== =======
- --------------------------------------------------------------------------------
Reported non-compensation expenses increased by 33% to $4.7 million in 1999,
compared with $3.6 million in 1998 and $5.6 million in 1997. Excluding 1997
special charges, non-compensation expenses were $3.7 million in 1997. The 1999
increase is due to an increase in clearance and floor brokerage costs associated
with the 25% increase in commissions earned in 1999; an increase in selling and
promotional expenses related to the Company's increased marketing efforts; and
various other one time professional fees, severance payments and systems
expenses related to an upgrade in computer hardware and software. These expenses
are primarily fixed in nature and, as a result, they are not directly related to
changes in managed asset levels. Adjusted non-compensation expenses totaled 26%
of operating revenues and .20% of average managed assets in 1999, compared with
21% and .15% in 1998, and 20% and .13% in 1997.
o o o
Other income, which comprises interest, dividends, and realized and
unrealized gains/losses from sales of marketable securities (primarily large-cap
equities), totaled $32.8 million in 1999, compared with $10.3 million in 1998
and $12.9 million in 1997. Net interest and dividend income was $0.7 million in
1999, compared with $1.6 million in 1998 and $3.0 million in 1997. The 1997
amount is primarily due to a special dividend received in 1997 from a company
whose securities were held in the Company's investment portfolio. Net gains from
investments totaled $32.1 million ($19.8 million realized) in 1999, compared
with $8.8 million ($1.2 million realized) in 1998 and $9.9 million ($9.0 million
realized) in 1997, reflecting the strength of the domestic equity markets in
those years.
Liquidity and Capital Resources
Investments in marketable securities aggregated $93.6 million at December 31,
1999, compared with $73.8 million at the end of 1998. During 1999, the Company
invested $6.0 million in its new mutual funds, the Atalanta/Sosnoff Balanced
Fund, the Atalanta/Sosnoff Value Fund and the Atalanta/Sosnoff Focus Fund, and
an additional $3 million in an investment partnership. Shareholders' equity
totaled $101.8 million at December 31, 1999, compared with $82.0 million at the
end of 1998. This increase is primarily from net income of $17.6 million
recorded in 1999 and unrealized gains on the investment portfolio. The Company
18
<PAGE>
has adopted SFAS No. 115, requiring it to reflect a net unrealized gain of $10.2
million after taxes in shareholders' equity at December 31, 1999, compared with
$7.5 million at the end of 1998.
At December 31, 1999, the Company's investment portfolio at market totaled
$115.5 million (cost basis $83.6 million), comprised of cash and cash
equivalents, corporate debt, large-cap equity securities, and investments in
limited partnerships and the Atalanta/Sosnoff Funds (see Note 3 to the audited
financial statements). At year-end, the Company was invested in 18 separate
large-cap securities, in a more concentrated fashion of what it does for its
managed client accounts. The largest position was in Apple Computer, at 7.1% of
the portfolio, with an unrealized gain of $3.4 million at year-end.
At December 31, 1999 the Company had cash and cash equivalents totaling $4.4
million, compared with $4.0 million at the end of 1998. Net cash used in
operating activities was $2.9 million in 1999 compared with net cash inflows of
$727,000 in 1998. This reflects the changing levels of operating income and
changes in operating assets and liabilities over those periods. Net cash
provided by investing activities totaled $5.9 million in 1999, compared with
$4.0 million provided in 1998. Net cash used in financing activities was $2.6
million in 1999, compared with $4.5 million in 1998. As a result, there was a
net increase in cash and cash equivalents of $394,000 in 1999, compared to an
increase of $189,000 in 1998.
If the equity market (defined as the S&P 500 index) were to decline by 10%,
the Company might experience unrealized losses of approximately $12 million; if
the market were to decline by 20%, the Company might experience unrealized
losses of $23 million. However, incurring unrealized losses of this magnitude is
unlikely with active management of the portfolio. Since the positions are all
large-cap holdings, they can be sold easily on short notice with little market
impact. Ultimately, the Company will raise and hold cash to reduce market risk.
o o o
In 1998, the Company paid a special dividend of $.25 per share, compared with
$.20 per share in 1997. The Company did not pay a special dividend in 1999.
Additionally, in December 1998, the Company repurchased 249,000 shares of its
own stock at a market price of $8.75 per share. In June 1999, the Company
purchased 254,174 shares of its common stock from a former officer at a market
price of $10.00 per share. In October 1999, the Company repurchased 9,100 shares
of its common stock at an average market price of $7.62 per share. On December
30, 1999, the Company retired 512,274 shares of treasury stock and restored the
common stock to authorized and unissued status. At December 31, 1999 and 1998,
the Company had no liabilities for borrowed money.
In September 1997, the Company awarded 775,000 shares of restricted stock at
the issue price of $.01 per share to two senior executives under the terms of
the Long Term Incentive Plan ("LTIP"). Craig B. Steinberg, President, received
600,000 shares and Anthony G. Miller, Executive Vice President and Chief
Operating Officer, received 175,000 shares. Such awards vest over four years.
19
<PAGE>
The difference of $9.0 million between the market value ($11.625 per share)
of the shares awarded on the date of grant and the purchase price of $.01 per
share was recorded as unearned compensation in shareholders' equity and is being
amortized over a four-year period commencing with the fourth quarter of 1997
(approximately $563,000 per quarter and $2.25 million annually).
The Company believes that the foreseeable capital and liquidity requirements
of its existing businesses will continue to be met with funds generated from
operations.
Year 2000
The Company has conducted a full assessment of its information technology
systems and imbedded technology and has determined that they are Y2K compliant
(i.e., that they recognize and specify dates to properly function in the year
2000 and thereafter). The remediation and testing of all critical systems and
point-to-point testing with the systems of third parties with which our existing
systems interface has been successfully completed. In conjunction with its Y2K
readiness process, the Company replaced its two core critical systems, trading
and portfolio accounting, with off-the-shelf commercial software packages during
1999. To date, all of the Company's systems are operating properly in 2000. The
Company's Y2K costs were not material through December 31, 1999 and it does not
expect to incur any material costs during 2000.
Item 8. Financial Statements and Supplementary Data
See Index to Consolidated Financial Statements, and Consolidated
Financial Statement
Schedules on page F-1 in Item 14.
Item 9. Changes in or Disagreements with Accountants on Accounting and
Financial Disclosure.
None.
20
<PAGE>
PART III
Item 10. Directors and Executive Officers of the Registrant.
(a) Directors -
Information concerning directors of the Company is contained under the
caption "Election of Directors" in the Proxy Statement for the 2000 Annual
Meeting of Stockholders to be filed with the Securities and Exchange
Commission and is incorporated herein by reference.
(b) Executive Officers of the Registrant -
MARTIN T. SOSNOFF*, 68, was a founder of the Company and has been Chairman of
the Board, Chief Executive Officer and Chief Investment Officer of
the Company, Capital and ASCC Corp. since their inceptions. He was a
co-founder of Atalanta Capital Corporation (investment management)
and served as its Chairman and Chief Executive Officer until 1983.
CRAIG B. STEINBERG**, 38, has been President, Director of Research,
and held other offices, with the Company, Capital and ASCC Corp.
since 1985. Mr. Steinberg is a Portfolio Manager, and he was a
securities analyst at Prudential Equity Management from 1983 to 1985.
ANTHONY G. MILLER, 41, has been Executive Vice President, Chief Operating
Officer, Chief Financial Officer, and Secretary, and held other
offices, with the Company and its subsidiaries since 1986. Mr. Miller
is the President and Chief Executive Officer of Management. From 1983
to 1986 he was Manager, Foreign Exchange and Money Market Operations,
and held other positions, with the Royal Bank of Canada and, from
1980 to 1983 was a Senior Accountant, and held other positions, with
Arthur Andersen & Co.
PAUL P. TANICO, 44, has been Executive Vice President, Portfolio
Manager with Capital since 1997. Previously, Mr. Tanico was a
Portfolio Manager at Atalanta/Sosnoff from 1983 to 1987, and in 1991.
Mr. Tanico began his investment career with David J. Greene in 1981,
and in 1992 was one of the original partners at Omega Advisors. Since
1994, he has served as Managing Partner of Castlerock Partners. From
1987 through 1990 Mr. Tanico was a Portfolio Manager with Neuberger &
Berman.
- -------------------------------
* Also a director and member of the Executive, Compensation and Stock
Option Committees.
** Also a director and member of the Executive Committee.
21
<PAGE>
WILLIAM M. KNOBLER, 66, has been Senior Vice President of Management
since 1985. Mr. Knobler is a Portfolio Manager, and he was a
securities analyst and voting shareholder of Sanford C. Bernstein &
Co. from 1979 to 1985.
JAMES D. STAUB, 67, has been Senior Vice President, and held other
offices, with Capital and Management since 1984. Mr. Staub is
responsible for West Coast Marketing, and he was a corporate officer
of Alexander & Baldwin, Inc. from 1961 to 1984.
KEVIN S. KELLY, 35, has been Vice President, Finance with the
Company and its subsidiaries since joining the Company in 1999. Mr.
Kelly is a CPA and was a Senior Manager for Grant Thornton prior to
joining the Company.
Officers of the Registrant are elected at the meeting of the Board of
Directors held each year immediately after the Annual Meeting of Stockholders
and serve for the ensuing year and until their successors are elected and
qualified.
Item 11. Executive Compensation.
Information concerning executive compensation is contained under the
captions "Election of Directors", "Executive Compensation", "Stock Option and
Long Term Incentive Plans", "Profit-Sharing Plan" and "Management Incentive
Plan" in the Proxy Statement for the 2000 Annual Meeting of Stockholders to be
filed with the Securities and Exchange Commission and is incorporated herein by
reference.
Item 12. Beneficial Ownership of the Company's Securities.
Information concerning security ownership of certain beneficial owners and
management is contained under the caption "Beneficial Ownership of Securities of
the Company" in the Proxy Statement for the 2000 Annual Meeting of Stockholders
to be filed with Securities and Exchange Commission and is incorporated herein
by reference.
Item 13. Certain Relationships and Related Transactions.
Information concerning certain relationships and related transactions is
contained under the caption "Agreements and Transactions with Directors and
Executive Officers" in the Proxy Statement for the 2000 Annual Meeting of
Stockholders to be filed with the Securities and Exchange Commission and is
incorporated herein by reference.
22
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form
8-K
(a) 1. FINANCIAL STATEMENTS
See Index to Consolidated Financial Statements and Consolidated
Financial Statement Schedules on Page F-1 of Item 14.
2. FINANCIAL STATEMENT SCHEDULES
See Index to Consolidated Financial Statements and Consolidated
Financial Statement Schedules on Page F-1 of Item 14.
(b) None.
23
<PAGE>
ATALANTA/SOSNOFF CAPITAL CORPORATION
AND SUBSIDIARIES
CONSOLIDATED FINANCIAL STATEMENTS
AS OF DECEMBER 31, 1999, 1998 AND 1997
TOGETHER WITH AUDITORS' REPORT
<PAGE>
INDEX
<TABLE>
<CAPTION>
Page
----
<S> <C>
FINANCIAL STATEMENTS AND SUPPLEMENTARY INFORMATION:
Report of Independent Public Accountants F-2
Consolidated Statements of Financial Condition - December 31, 1999 and 1998 F-3
Consolidated Statements of Income and Comprehensive Income for the Years F-4
Ended December 31, 1999, 1998 and 1997
Consolidated Statements of Changes in Shareholders' Equity for the Years F-5
Ended December 31, 1999, 1998 and 1997
Consolidated Statements of Cash Flows for the Years Ended December 31, 1999, F-6
1998 and 1997
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS F-7 to F-14
SUPPLEMENTARY FINANCIAL INFORMATION:
Selected Quarterly Financial Data (Unaudited) F-15
Computations of Earnings Per Share S-1
</TABLE>
Financial statement schedules not included in this report have been omitted
because they are not applicable or the required information is given in the
consolidated financial statements or the notes thereto.
F-1
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and
Shareholders of Atalanta/Sosnoff Capital Corporation:
We have audited the accompanying consolidated statements of financial condition
of Atalanta/Sosnoff Capital Corporation (a Delaware corporation) and
subsidiaries as of December 31, 1999 and 1998, and the related consolidated
statements of income and comprehensive income, changes in shareholders' 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 financial statements referred to above present fairly, in
all material respects, the financial position of Atalanta/Sosnoff Capital
Corporation and subsidiaries as of December 31, 1999 and 1998, and the results
of their operations and their 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
February 21, 2000
F-2
<PAGE>
<TABLE>
<CAPTION>
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION
DECEMBER 31, 1999 AND 1998
ASSETS 1999 1998
------ ------------ ------------
ASSETS:
<S> <C> <C>
Cash and cash equivalents $ 4,387,987 $ 3,993,963
Accounts receivable 4,314,257 3,319,185
Investments, at market 93,637,682 73,802,294
Investments in limited partnerships 17,447,746 7,565,780
Fixed assets, net of accumulated depreciation and amortization of
$700,123 and $426,924, respectively 1,429,569 659,311
Exchange memberships, at cost (market value $2,700,000 and
$1,761,100, respectively) 402,000 402,000
Other assets 2,004,225 943,870
------------ ------------
Total assets $123,623,466 $ 90,686,403
============ ============
<CAPTION>
LIABILITIES AND SHAREHOLDERS' EQUITY
------------------------------------
<S> <C> <C>
LIABILITIES:
Accounts payable and other liabilities $ 988,348 $ 773,970
Accrued compensation payable 4,812,781 648,611
Income taxes payable 16,046,699 6,541,427
Separation costs payable - 700,000
------------ ------------
Total liabilities 21,847,828 8,664,008
------------ ------------
COMMITMENTS AND CONTINGENCIES (Note 8)
SHAREHOLDERS' EQUITY:
Preferred stock, par value $1.00 per share; 5,000,000 - -
shares authorized; none issued
Common stock, par value $.01 per share; 30,000,000 shares 90,751 95,874
authorized; 9,075,127 and 9,587,401 shares issued and
outstanding, respectively
Additional paid-in capital 19,455,259 24,389,499
Retained earnings 75,976,793 58,412,561
Accumulated other comprehensive income - unrealized gains from investments,
net of deferred tax liabilities of $6,794,028
and $4,996,227, respectively 10,191,042 7,494,341
Unearned compensation (3,938,207) (6,188,615)
Treasury stock, at cost, 0 and 249,000 shares, respectively - (2,181,265)
------------ ------------
Total shareholders' equity 101,775,638 82,022,395
------------ ------------
Total liabilities and shareholders' equity $123,623,466 $ 90,686,403
============ ============
</TABLE>
The accompanying notes are an integral part of these statements.
F-3
<PAGE>
<TABLE>
<CAPTION>
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME
FOR THE YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997
1999 1998 1997
----------- ------------ -----------
REVENUES:
<S> <C> <C> <C>
Advisory fees $16,349,083 $ 15,406,468 $17,286,815
Commissions and other operating revenues 1,921,016 1,573,101 1,542,657
Realized and unrealized gains from principal securities
transactions, net 32,097,041 8,766,778 9,854,124
Interest and dividend income, net 708,205 1,557,492 2,996,749
----------- ------------ -----------
Total revenues 51,075,345 27,303,839 31,680,345
----------- ------------ -----------
COSTS AND EXPENSES:
Employees' compensation and benefits 15,317,520 10,043,375 8,069,548
Clearing and execution costs 788,334 562,594 526,964
Selling expenses 536,920 421,052 429,077
General and administrative expenses 3,414,339 2,582,300 4,681,383
----------- ------------ -----------
Total costs and expenses 20,057,113 13,609,321 13,706,972
----------- ------------ -----------
Income before provision for income taxes 31,018,232 13,694,518 17,973,373
PROVISION FOR INCOME TAXES 13,454,000 5,911,000 8,124,000
----------- ------------ -----------
Net income $17,564,232 $ 7,783,518 $ 9,849,373
=========== ============ ===========
EARNINGS PER COMMON SHARE - BASIC $ 1.91 $ .81 $ 1.09
=========== ============ ===========
EARNINGS PER COMMON SHARE - DILUTED $ 1.91 $ .81 $ 1.09
=========== ============ ===========
NET INCOME, as presented above $17,564,232 $ 7,783,518 $ 9,849,373
OTHER COMPREHENSIVE INCOME:
Net unrealized gains from investments,
net of income taxes of $1,826,368, $4,138,071 and
$283,747, respectively 2,696,701 6,207,547 425,621
----------- ------------ -----------
Comprehensive income $20,260,933 $ 13,991,065 $10,274,994
=========== ============ ===========
</TABLE>
The accompanying notes are an integral part of these statements.
F-4
<PAGE>
<TABLE>
<CAPTION>
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997
Accumulated
Other
Comprehensive
Income -
Unrealized
Additional Gains From
Common Paid-in Retained Investments, Unearned Treasury
Stock Capital Earnings Net Compensation Stock Total
---------- ----------- ------------- --------------- ------------ ---------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE, December 31, 1996 $ 88,124 $15,646,874 $ 45,031,750 $ 861,173 $ - $ - $ 61,627,921
Issuance of 775,000
restricted shares 7,750 9,001,625 (9,001,625) 7,750
Amortization of unearned 562,602 562,602
compensation
Unrealized gains from 425,621 425,621
investments, net of
deferred taxes
Net income 9,849,373 9,849,373
Dividends ($.20 per share) (1,917,480) (1,917,480)
---------- ----------- ------------- ----------- -------------- ---------- -------------
BALANCE, December 31, 1997 95,874 24,648,499 52,963,643 1,286,794 (8,439,023) - 70,555,787
Purchase of treasury stock (2,181,265) (2,181,265)
Amortization of unearned (259,000) 2,250,408 1,991,408
compensation
Unrealized gains from 6,207,547 6,207,547
investments, net of
deferred taxes
Net income 7,783,518 7,783,518
Dividends ($.25 per share) (2,334,600) (2,334,600)
---------- ----------- ------------- ----------- -------------- ----------- -------------
BALANCE, December 31, 1998 95,874 24,389,499 58,412,561 7,494,341 (6,188,615) (2,181,265) 82,022,395
Purchases of treasury stock (2,611,094) (2,611,094)
Retirement of treasury stock (5,123) (4,787,236) 4,792,359 -
Amortization of unearned (147,004) 2,250,408 2,103,404
compensation
Unrealized gains from 2,696,701 2,696,701
investments, net of
deferred taxes
Net income 17,564,232 17,564,232
---------- ----------- ------------- ----------- -------------- ---------- -------------
BALANCE, December 31, 1999 $ 90,751 $19,455,259 $ 75,976,793 $10,191,042 $ (3,938,207) $ - $ 101,775,638
========== =========== ============= =========== ============== ========== =============
</TABLE>
The accompanying notes are an integral part of these statements.
F-5
<PAGE>
<TABLE>
<CAPTION>
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997
1999 1998 1997
------------ ------------- -------------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C> <C>
Net income $ 17,564,232 $ 7,783,518 $ 9,849,373
Adjustments to reconcile net income to net cash
(used in) provided by operating activities-
Depreciation and amortization 273,199 188,643 150,185
Amortization of unearned compensation 2,250,408 2,250,408 562,602
Realized and unrealized gains from (32,097,041) (8,766,778) (9,854,124)
investments, net
Deferred taxes 5,976,066 394,400 (522,264)
(Increase) decrease in operating assets-
Accounts receivable (995,072) 36,214 426,699
Other assets (1,060,355) (174,589) (253,243)
Increase (decrease) in operating liabilities-
Accounts payable and other liabilities 216,156 (80,069) 206,943
Accrued compensation payable 4,164,170 (190,813) (557,675)
Income taxes payable 1,555,834 (13,909) 977,880
Separation costs payable (700,000) (700,000) 1,400,000
------------ ------------- -------------
Net cash (used in) provided by
operating activities (2,852,403) 727,025 2,386,376
----------- ------------- -------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from clearing broker, net - 1,323,473 1,114,348
Purchases of fixed assets (1,043,457) (58,596) (329,314)
Purchases of investments (142,967,088) (151,336,026) (117,715,145)
Proceeds from sales of investments 149,868,066 154,048,709 114,672,755
------------ ------------- -------------
Net cash provided by (used in) investing
activities 5,857,521 3,977,560 (2,257,356)
------------ ------------- -------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Purchases of treasury stock (2,611,094) (2,181,265) -
Proceeds received for issuance of restricted shares - - 7,750
Dividends paid - (2,334,600) (1,917,480)
------------ ------------- -------------
Net cash used in financing activities (2,611,094) (4,515,865) (1,909,730)
------------ ------------- -------------
Net increase (decrease) in cash and
cash equivalents 394,024 188,720 (1,780,710)
CASH AND CASH EQUIVALENTS, beginning of year 3,993,963 3,805,243 5,585,953
------------ ------------- -------------
CASH AND CASH EQUIVALENTS, end of year $ 4,387,987 $ 3,993,963 $ 3,805,243
============ ============= =============
SUPPLEMENTAL DISCLOSURE OF CASH FLOW
INFORMATION:
Cash paid during the year for-
Interest $ 83,961 $ 30,788 $ 34,087
Income taxes $ 5,922,100 $ 5,530,511 $ 7,668,384
Noncash financing activity-
Increase (decrease) in additional paid-in capital $ (147,004) $ (259,000) $ 9,001,625
related to restricted shares
Retirement of treasury stock $ (4,792,359) $ - $ -
</TABLE>
The accompanying notes are an integral part of these statements.
F-6
<PAGE>
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999, 1998 AND 1997
1. SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of
Atalanta/Sosnoff Capital Corporation (the "Holding Company") and its direct and
indirect wholly owned subsidiaries, Atalanta/Sosnoff Capital Corporation
(Delaware) ("Capital"), Atalanta/Sosnoff Management Corporation ("Management")
and ASCC Corp. ("ASCC"). Capital is a registered investment advisor. It provides
investment advisory and management services to institutional clients and certain
investment partnerships. Management is a registered investment advisor and a
broker-dealer in securities and owns a seat on the New York Stock Exchange, Inc.
and owns a seat and is a member of the Chicago Board Options Exchange, Inc.
Management provides investment advisory and management services to individual
and smaller institutional clients and brokerage services to its clients and some
of the clients of Capital. ASCC was formed in December 1998 for
investment-related activities which were previously performed by the Holding
Company.
Certain prior year balances have been reclassified in the accompanying
consolidated financial statements to conform to the 1999 presentation.
The Holding Company and its subsidiaries are referred to collectively herein as
the "Company." All intercompany accounts and transactions have been eliminated
in consolidation.
Reportable Operating Segments
The Company considers its operations to be one reportable segment for purposes
of presenting financial information and for evaluating its performance. As such,
the financial information presented in the accompanying financial statements is
consistent with the financial information prepared for internal use by
management.
Revenue Recognition
Advisory fee revenue is recognized in the period in which services are performed
based on a percentage of assets under management. Commission income and expenses
arising from customers' securities transactions are recognized on a settlement
date basis. The effect of using the settlement date instead of the trade date
for revenue recognition is immaterial.
Investments, at Market
The Company records its investments in accordance with the provisions of
Statement of Financial Accounting Standards ("SFAS") No. 115, with the exception
of investments held by Management. The Company has designated those investments
held by the Holding Company, Capital and ASCC in equity and debt securities as
"available for sale," and, accordingly, recorded at market value with the
related unrealized gains and losses net of deferred taxes reported as a separate
component of shareholders' equity. Investments held by Management are recorded
at market value, with the related unrealized gains and losses reflected in the
consolidated statements of income and comprehensive income.
F-7
<PAGE>
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999, 1998 AND 1997
Investments are recorded on trade date. The cost of investments sold is
determined on the first-in, first-out method. Dividends and interest are accrued
as earned. Securities listed on a securities exchange for which market
quotations are available are valued at the last quoted sales price as of the
last business day of the year. Investments in mutual funds are valued based upon
the net asset value of the shares held as reported by the fund. Securities with
no reported sales on such date are valued at their last closing bid price.
Investments in Limited Partnerships
Capital serves as a general partner for three Company-sponsored investment
partnerships (the "Partnerships") and as the investment manager for a
Company-sponsored offshore investment fund (the "Offshore Fund"). Investments in
limited partnerships are carried in the accompanying consolidated financial
statements at the Company's share of the net asset values as reported by the
respective Partnerships with the unrealized gain or loss recorded in the
consolidated statements of income and comprehensive income. Limited partners
whose capital accounts in the aggregate are two-thirds of the total capital
accounts of all limited partners in each Partnership may, at any time, require
Capital to withdraw as the general partner of such Partnership. Therefore, the
Company is not deemed to have control of the Partnerships and, accordingly, the
accounts of the Partnerships are not included in these consolidated financial
statements.
Cash and Cash Equivalents
The Company considers all highly liquid debt instruments with a maturity of
three months or less to be cash equivalents.
Depreciation and Amortization
Furniture, equipment, computer software and leasehold improvements are stated at
cost, net of accumulated depreciation and amortization computed using the
straight-line method. Depreciation of furniture, equipment and computer software
is provided over estimated useful lives ranging from five to seven years.
Leasehold improvements are amortized over the shorter of their useful lives or
the remainder of the term of the related lease. Accumulated depreciation for
fully depreciated fixed assets is removed from the related accounts for those
assets which have been retired.
Income Taxes
The Company records income taxes in accordance with the provisions of SFAS No.
109. Accordingly, deferred taxes are provided to reflect temporary differences
between the recognition of income and expense for financial reporting and tax
purposes.
Estimates by Management
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and the reported amounts
of revenues and expenses. Actual results could differ from those estimates.
New Accounting Pronouncement
The Financial Accounting Standard Board has issued Statement of Financial
Accounting Standards No. 133 ("SFAS No. 133"), "Accounting for Derivative
Instruments and Hedging Activities," which is effective for periods beginning
after June 15, 2000. Management does not believe that the impact of the adoption
of SFAS No. 133 on the Company's financial position or results of operations be
material.
F-8
<PAGE>
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999, 1998 AND 1997
2. EARNINGS PER COMMON SHARE
Basic earnings per common share amounts were computed based on 9,192,066,
9,571,711 and 9,037,469 weighted average common shares outstanding in 1999, 1998
and 1997, respectively. For purposes of determining weighted average common
shares outstanding, the Company considers all shares legally issued and
outstanding in determining basic and diluted net income per share.
In accordance with the provisions of SFAS No. 128, dilutive earnings per share
for the three years ended December 31, 1999 were computed based on the weighted
average common shares outstanding provided in the table below. Antidilutive
options were not included in the computation of dilutive earnings per share as
the options' exercise prices were greater than the average market price of the
common shares for each of those respective years.
<TABLE>
<CAPTION>
1999 1998 1997
----------------- ----------------- -----------------
<S> <C> <C> <C>
Weighted average common shares outstanding 9,192,066 9,571,711 9,037,469
Common stock equivalents-options 8,406 10,925 50,936
----------------- ----------- ------------
Dilutive weighted average common
shares outstanding 9,200,472 9,582,636 9,088,405
================= =========== ============
Antidilutive options 200,000 150,000 -
================= =========== ============
</TABLE>
3. INVESTMENTS AND CASH
Included in cash and cash equivalents, the Company had interest-bearing free
credit balances with its clearing broker of $ 1,715,233 and $230,727 at December
31, 1999 and 1998, respectively.
Investments at December 31, 1999 and 1998, consisted of the following:
<TABLE>
<CAPTION>
Unrealized
Cost Market Value Gain (Loss)
------------ ------------ -----------
1999:
<S> <C> <C> <C>
Available for sale-
Common stock $54,198,652 $ 70,313,820 $16,115,168
Corporate debt 2,308,805 1,932,281 (376,524)
Atalanta/Sosnoff Mutual Funds 6,100,000 7,358,300 1,258,300
----------- ------------ -----------
62,607,457 79,604,401 16,996,944
----------- ------------ -----------
Trading-
Atalanta/Sosnoff Mutual Funds 9,000,000 14,033,281 5,033,281
----------- ------------ -----------
Other-
Investments in limited partnerships 7,613,135 17,447,746 9,834,611
----------- ------------ -----------
$79,220,592 $111,085,428 $31,864,836
=========== ============ ===========
</TABLE>
F-9
<PAGE>
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999, 1998 AND 1997
<TABLE>
<CAPTION>
Unrealized
Cost Market Value Gain (Loss)
------------ ------------ -------------
1998:
<S> <C> <C> <C>
Available for sale-
Common stock $ 51,735,002 $ 62,778,063 $ 11,043,061
Corporate debt 1,175,964 868,250 (307,714)
Atalanta/Sosnoff Fund 100,000 114,700 14,700
------------ ------------ -------------
53,010,966 63,761,013 10,750,047
------------ ------------ ------------
Trading-
Atalanta/Sosnoff Fund 9,000,000 10,041,281 1,041,281
------------ ------------ -------------
Other-
Investments in limited partnerships 4,279,487 7,565,780 3,286,293
------------ ------------ -------------
$ 66,290,453 $ 81,368,074 $ 15,077,621
============ ============ =============
</TABLE>
4. SEPARATION COSTS PAYABLE
The separation costs relate to the Company's termination without cause of its
former president on August 15, 1997. Such termination is governed by the terms
of the former president's Employment Agreement, whereby he received two years
severance at his base salary level at the time of termination payable over the
two-year period ended November 15, 1999.
5. RELATED PARTY TRANSACTIONS
As the General Partner for the Partnerships and the investment manager of the
Offshore Fund, Capital earned approximately $2,876,000, $1,821,000 and
$1,258,000 in 1999, 1998 and 1997, respectively, for advisory and management
services (charged at 1% - 3% of net assets), and incentive fees charged at 20%
of performance as defined in the case of one partnership. Management earned
commissions of approximately $147,000, $116,000 and $59,000 in 1999, 1998 and
1997, respectively, for brokerage services provided to the Partnerships.
Advisory fees and brokerage commissions are based on terms comparable to those
in agreements with unrelated parties. Balances receivable from the Partnerships
were approximately $1,524,000, $449,000 and $110,000 at December 31, 1999, 1998
and 1997, respectively, including approximately $1,239,000 and $282,000 of
incentive fees which are included in net income in 1999 and 1998, respectively.
Investments consist of shares held of the Atalanta/Sosnoff Fund,
Atalanta/Sosnoff Value Fund, Atalanta/Sosnoff Focus Fund, and the
Atalanta/Sosnoff Balanced Fund (the "Funds"). Management acts as Distributor to
the Funds and Capital acts as Investment Advisor.
Employment Agreement
In May 1985, Management entered into an employment agreement with an individual
portfolio manager to provide investment related services to both Management and
Capital. Under the terms of the agreement, the employee was paid the net profits
relating to the accounts he managed (the "Net Profits") which represent advisory
fees and commissions for all trades executed for his managed accounts, net of
clearance and floor brokerage charges, allocated payroll, overhead and
out-of-pocket expenses incurred on his behalf by Management. Effective October
1, 1998, Management entered into a new agreement with the employee for the
period ending December 31, 2000, under which the employee is relinquishing the
revenue from investment management and brokerage services provided to the
managed accounts to Management. Pursuant to this agreement, Management has made
(or will make) payments to the employee in three annual installments begining in
January 1999, 2000 and 2001, based upon a multiple of annualized revenues from
the employee's managed accounts, which is being recognized ratably as
compensation expense over the
F-10
<PAGE>
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999, 1998 AND 1997
term of the arrangement. In addition, Management and the employee agreed to
change the split of Net Profits paid to the employee from 100% during the
twelve-month period ended September 30, 1998 to 50% for the twelve-month period
ended September 30, 1999, 25% for the twelve-month period ending September 30,
2000, and 0% thereafter. Included in compensation expense is $1,500,000 and
$375,000 in 1999 and 1998, respectively, of which $375,000 is unpaid as of
December 31, 1999 and 1998, respectively. Commissions and advisory fee revenues
related to such investment advisory services for 1999 amounted to $1,466,130 and
related compensation expenses amounted to $1,835,384, which includes
approximately $1.5 million paid to the employee representing 50% of the purchase
price associated with the employee relinquishing the right to receive revenue
from the managed accounts.
6. PROVISION FOR INCOME TAXES
The provision for income taxes consists of:
<TABLE>
<CAPTION>
1999 1998 1997
----------------- --------------- -----------------
Current income taxes:
<S> <C> <C> <C>
Federal $ 6,141,000 $ 3,822,000 $ 2,982,961
State and local 1,337,000 1,694,600 5,663,303
----------------- ---------------- -----------------
Total current 7,478,000 5,516,600 8,646,264
----------------- ---------------- -----------------
Deferred income taxes provision:
Federal 4,907,000 267,100 (180,180)
State and local 1,069,000 127,300 (342,084)
----------------- ---------------- -----------------
Total deferred 5,976,000 394,400 (522,264)
----------------- ---------------- -----------------
$ 13,454,000 $ 5,911,000 $ 8,124,000
================= ================ =================
</TABLE>
A reconciliation of the statutory federal income tax rate and the effective rate
based on consolidated income before income taxes in 1999, 1998 and 1997, is set
forth below:
<TABLE>
<CAPTION>
1999 1998 1997
---------- --------- -------
<S> <C> <C> <C>
Statutory federal income tax rate 34.9% 34.5% 34.5%
Increase resulting from:
State and local income taxes, net
of federal tax benefit 7.5 8.6 10.6
Other 0.1 0.1 0.1
------- ------- ------
Effective rate 42.5% 43.2% 45.2%
======= ======= =====
</TABLE>
Deferred taxes payable are comprised of the following components as of December
31, 1999 and 1998:
<TABLE>
<CAPTION>
1999 1998
------------- ---------------
<S> <C> <C>
Unrealized gain on investments $12,623,977 $ 6,483,377
Separation costs payable - (210,000)
----------- ---------------
$12,623,977 $ 6,273,377
=========== ===============
</TABLE>
F-11
<PAGE>
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999, 1998 AND 1997
7. NET CAPITAL REQUIREMENTS
Management is subject to the Securities and Exchange Commission Uniform Net
Capital Rule 15c3-1, which requires the maintenance of minimum net capital and
requires that the ratio of aggregate indebtedness to net capital, both as
defined, not exceed 15 to 1. The net capital rule of the New York Stock Exchange
also provides that equity capital may not be withdrawn or cash dividends paid if
the resulting net capital ratio would exceed 10 to 1. At December 31, 1999,
Management had net capital of $11,429,086, which was $11,179,086 in excess of
its required net capital of $250,000, and had a ratio of aggregate indebtedness
to net capital of .27 to 1.
8. COMMITMENTS AND CONTINGENCIES
Leases
The Company leases office facilities and equipment under various noncancelable
operating leases expiring through 2002. Rent expense was approximately $671,000,
$680,000 and $661,000 in 1999, 1998 and 1997, respectively.
Approximate future minimum rental commitments under noncancelable operating
leases for the years subsequent to December 31, 1999, are as follows: 2000
through 2001 are equal to $626,000 per year and $417,000 for 2002.
In October, 1999, the Company entered into a new 15-year lease on its existing
office space in New York. This lease commences on September 1, 2002 and the
approximate future minimum annual rent under this lease is $919,000, $1,011,000
and $1,103,000 per annum for each of the five-year periods ending August 2007,
2012, and 2017, respectively.
Clearance of Securities
Bear, Stearns Securities Corporation, Inc. ("Bear Stearns") has an agreement
with Management to clear securities transactions and carry customers' accounts
on a fully disclosed basis. The agreement states that Management will assume
customer obligations should a customer of Management default. Bear Stearns
controls credit risk of customers by requiring maintenance margin collateral in
compliance with various regulatory and internal guidelines.
Compensation Agreements
Effective January 1, 1993, the Company adopted the Management Incentive Plan
(the "MIP") for senior executives. Under the MIP, each participant is entitled
to receive his assigned share of the annual award pool, which is computed based
on operating income performance goals, as defined in the MIP. No operating
bonuses were earned under the MIP for 1999, 1998 and 1997.
The Company adopted an amendment to the MIP in 1999 whereby an annual investment
performance bonus is earned by the Chief Executive Officer (CEO) based upon
pre-tax earnings of certain managed assets of the Company in excess of a base
index return, as defined, subject to a ceiling of 10% of total pre-tax income.
Included in compensation expense is an accrued investment performance bonus to
the CEO of $3,446,000 in 1999.
F-12
<PAGE>
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999, 1998 AND 1997
Pursuant to a 1998 agreement, the President of the company earns a bonus based
upon the pre-tax operating profits earned by the Company as general partner of
the Partnership managed by the President. Included in compensation expense
related to this bonus is approximately $530,000 and $150,000 for 1999 and 1998,
respectively.
9. STOCK OPTION, STOCK PURCHASE,
INCENTIVE AND PROFIT-SHARING PLANS
During 1996, the Company adopted the Long-Term Incentive Plan ("LTIP") under
which awards of stock, restricted stock, options and other stock-based awards
totaling 880,000 shares of common stock may be granted to all full-time
employees, officers and directors of the Company and its subsidiaries.
During 1997, the Company awarded 775,000 shares of restricted stock at the issue
price of $.01 per share to two officers of the Company under the terms of the
LTIP. Such awards vest over four years. The difference of $9,001,625 between
market value ($11.625 per share) on the date of grant and the purchase price was
recorded as unearned compensation in shareholders' equity and is being amortized
over a four-year period commencing with the fourth quarter of 1997.
Options may be granted as either "Qualified Options," "Nonqualified Options" or
"Incentive Options." Generally, Qualified Options and Incentive Options may not
be granted at a per share price that is less than 100% of fair market value on
the date of grant. Nonqualified Options may be granted at prices determined by a
committee comprised of certain members of the Board of Directors.
The Company's previous stock option plan, as amended (the "SOP") was terminated
by the Company in connection with the approval by stockholders of the LTIP. The
SOP provided for options to purchase 900,000 shares of common stock. The
termination of the SOP did not affect options then outstanding.
A summary of option transactions for the three years ended December 31, 1999, is
presented below. Each option becomes exercisable as to 20% of the total number
of shares subject to the option six months after the date of grant, and as to an
additional 20% each year thereafter. Generally, options may not expire more than
ten years from the date of grant. Incentive Stock Options were granted at an
exercise price of $9.00 in 1998. Nonqualified options were granted at exercise
prices equal to the market price per share at the date of grant. Only the LTIP
has options available for grant at the end of 1999.
F-13
<PAGE>
<TABLE>
<CAPTION>
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999, 1998 AND 1997
Incentive Qualified Nonqualified
Stock Stock Stock
Options Options Options Total
--------- -------- ---------- -------
<S> <C> <C> <C> <C>
Outstanding, beginning of 1997 50,000 - 835,000 885,000
Canceled during 1997 - - (650,000) (650,000)
Expired during 1997 - - (35,000) (35,000)
--------- -------- ---------- --------
Outstanding, end of 1997 50,000 - 150,000 200,000
Granted during 1998 50,000 - - 50,000
--------- -------- ---------- ---------
Outstanding, end of 1998 and 1999 100,000 - 150,000 250,000
========= ======== ========== =========
Exercisable, end of 1997 110,000
=========
Exercisable, end of 1998 150,000
=========
Exercisable, end of 1999 190,000
=========
Available for grant, end of 1999 55,000
=========
</TABLE>
The Company accounts for these options under Accounting Procedures Board Opinion
No. 25, under which no compensation cost has been recognized in the accompanying
consolidated statements of income and comprehensive income. Had compensation
cost for these options been determined consistent with the fair value method
required by Financial Accounting Standards Board Statement No. 123 ("FASB No.
123"), the Company's net income and earnings per share would have been the
following pro forma amounts in each of the three years ended December 31, 1999:
<TABLE>
<CAPTION>
1999 1998 1997
------------------ ------------------ ------------------
Net income:
<S> <C> <C> <C>
As reported $ 17,564,232 $ 7,783,518 $ 9,849,373
Pro forma 17,454,834 7,668,032 9,626,832
Basic EPS:
As reported 1.91 .81 1.09
Pro forma 1.90 .80 1.07
Dilutive EPS:
As reported 1.91 .81 1.08
Pro forma 1.90 .80 1.06
</TABLE>
In January 1998, the Company granted 50,000 Incentive Options at an exercise
price of $9.00 per share under the LTIP to an executive officer of the Company.
For the purposes of FASB No. 123 calculations, the fair value of these options
was $3.27 per share, and was estimated on the date of grant using the Black-
Scholes option pricing model with the following assumptions: risk-free interest
rate of 5.5%; expected dividend yield of 2.9%; expected option life of 10 years
and expected volatility of 33%. The fair value of the options to purchase
800,000 shares granted in 1995 with an exercise price of $9.50 per share (of
which 650,000 were canceled in 1997) was $4.71 per share, and was estimated on
the date of grant using the Black-Scholes option pricing model with the
following assumptions used: risk-free interest rate of 5.7%, expected dividend
yield of 1.6%, expected option life of 10 years and expected volatility of 40%.
F-14
<PAGE>
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999, 1998 AND 1997
Because the Statement 123 method of accounting has not been applied to options
granted prior to January 1, 1995, the resulting pro forma compensation cost and
related impact on net income and earnings per share may not be representative of
that to be expected in future years.
The Company also has a profit-sharing plan covering substantially all full-time
employees. Contributions to this plan, which in any fiscal year are at the
discretion of the Board of Directors, were approximately $265,000, $131,000 and
$135,000 in 1999, 1998 and 1997, respectively.
10. TREASURY STOCK TRANSACTIONS
In December 1998, the Company repurchased 249,000 shares of its common stock at
a market price of $8.75 per share. In June 1999, the Company repurchased 254,174
shares of its common stock from a former officer at a market price of $10.00 per
share. In October 1999, the Company repurchased 9,100 shares of its common stock
at an average market price of $7.62 per share. On December 30, 1999, the Company
retired 512,274 shares of treasury stock and restored the common stock to
authorized and unissued status.
F-15
<PAGE>
<TABLE>
<CAPTION>
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
SUPPLEMENTARY FINANCIAL INFORMATION
SELECTED QUARTERLY FINANCIAL DATA (Unaudited)
Quarter
------------------------------------------------------------
First Second Third Fourth
-------------- -------------- -------------- --------------
(000's omitted, except per share amounts)
------------------------------------------------------------
1999:
<S> <C> <C> <C> <C>
Operating revenues* $8,925 $13,211 $6,728 $22,211
Operating expenses** 3,806 4,068 4,281 7,902
Income before income taxes 5,119 9,143 2,447 14,309
Net income 2,897 5,186 1,383 8,098
Per common share- .31 .56 .15 .89
Basic .31 .56 .15 .89
Diluted
1998:
Operating revenues* 6,570 6,698 7,477 6,558
Operating expenses** 3,372 3,446 3,152 3,639
Income before income taxes 3,198 3,252 4,325 2,919
Net income 1,790 1,884 2,439 1,670
Per common share-
Basic .19 .20 .25 .18
Diluted .19 .20 .25 .18
1997:
Operating revenues* 6,822 9,404 7,825 7,629
Operating expenses** 2,768 2,805 4,623 3,511
Income before income taxes 4,054 6,599 3,202 4,118
Net income 2,249 3,588 1,746 2,267
Per common share-
Basic .26 .41 .20 .24
Diluted .26 .41 .19 .23
</TABLE>
* Operating revenue includes advisory fees, commissions and other operating
revenue.
** Operating expenses include total costs and expenses less an accrued
investment bonus payable to the CEO pursuant to the amended MIP plan of
$3,446,000 in 1999. (See Note 9 to the audited financial statements.)
F-16
<PAGE>
(c) Exhibits -
----------
3.1 Certificate of Incorporation (Exhibit 3.1) (1)
3.2 Amendment, dated September 11, 1987 to Certificate of
Incorporation (2)
3.3 By-Laws (Exhibit 3.2) (3)
4. Indenture, dated as of June 15, 1986, between Atalanta/Sosnoff
Capital Corporation and Morgan Guaranty Trust Company of New York
relating to $33,000,000 of 7 1/8% Convertible Senior Debentures due
June 15, 2001. (4)
10.1 Termination and Purchase Agreement, dated as of December 21, 1987,
among Martin T. Sosnoff, Shepard D. Osherow, the Company and its
subsidiaries (Exhibit 10.1)(6).
10.2 Lease Agreement dated as of July 15, 1980 between Martin T. Sosnoff
and Park Tower Associates. (Exhibit 10.2) (1)
10.3 First Lease Modification Agreement dated as of May 20, 1982 between
Martin T. Sosnoff and Park Tower Associates. (Exhibit 10.3)(1)
10.4 Second Lease Modification Agreement dated as of January 1985 between
Martin T. Sosnoff and Park Tower Associates. (Exhibit 10.4)(1)
10.5 Form of Sublease between Martin T. Sosnoff and the Company. (Exhibit
10.5) (3)
10.6 Assignment of Lease between the Company and North American
Consortium, Inc. (Exhibit 10.7)(7)
10.7 Sublease dated October 18, 1988 between the Company and First City
Capital Corporation (8)
10.8 Employment Agreement between Martin T. Sosnoff and the Company dated
as of March 31, 1986 (Exhibit 10.6.) (1), (15)
10.9 Consulting Agreement between Shepard D. Osherow and the Company dated
December 21, 1987. (Exhibit 10.2) (6), (15)
10.10 Form of Employment Agreement, as executed May 19, 1988 by each of
Robert J. Kobel, Eric A. Stiefel and Brian P. Hull (8), (15)
10.11 Letter Agreement between Martin T. Sosnoff and L. Mark Newman dated
February 14, 1985 and exhibits thereto. (Exhibit 10.20) (1)
10.12 Agreement between Martin T. Sosnoff and Shepard D. Osherow dated
February 25, 1985 regarding the Letter Agreement between Martin T.
Sosnoff and L. Mark Newman. (Exhibit 10.21) (1)
24
<PAGE>
10.13 1987 Stock Option Plan. (Exhibit 4.1) (5), (15)
10.14 1987 Incentive Stock Purchase Plan. (Exhibit 4.4) (5), (15)
10.15 Restricted Stock Bonus Plan (8), (54)
10.16 Form of Stock Bonus Award Agreements, as executed May 19, 1988 by
each of Robert J. Kobel, Eric A. Stiefel and Brian P. Hull (8), (15)
10.17 Profit Sharing Trust Agreement and Plan dated May 21, 1985 between
Atalanta/Sosnoff Capital Corporation and the plan trustees. (Exhibit
10.24) (1), (15)
10.18 Sub-sublease dated June 23, 1989 between the Company and Ehrlich
Bober & Co., Inc. (9)
10.19 Management Incentive Plan as adopted by the Board of Directors of the
Company on December 9, 1992 (10), (15)
10.20 Executive Employment Agreement dated as of December 9, 1992 between
Robert J. Kobel and the Company (10), (15)
10.21 Employment Agreement dated January 1, 1986 between Henry E. Parker
and the Company (10), (15)
10.22 Amended and Restated Management Incentive Plan as adopted by the
Board of Directors of the Company on December 9, 1993 and March 8,
1994 (11), (15)
10.23 Executive Employment Agreement dated July 8, 1993 between Craig B.
Steinberg and the Company (11), (15)
10.24 Executive Employment Agreement dated December 7, 1995 between Robert
J. Kobel and the Company (12), (15)
10.25 Employment Agreement dated July 1, 1986 between James D. Staub and
the Company (12), (15)
10.26 Modification Agreement of Sub-Lease dated February 27, 1996 between
the Company and Foote, Cone & Belding Advertising, Inc. (12)
10.27 1996 Long-Term Incentive Plan (13), (15)
10.28 Restricted Stock Award Agreements dated as of September 17, 1997
executed by each of Craig B. Steinberg and Anthony G. Miller (13),
(15)
10.29 Employment Agreement dated December 22, 1997 between James D. Staub
and the Company (13), (15)
10.30 Agreement dated October 29, 1998 between William M. Knobler and the
Company (14), (15)
25
<PAGE>
10.31 Amended and Restated Management Incentive Plan as adopted by the
Board of Directors of the Company on March 10, 1999 (14), (15)
10.32 Lease agreement dated October 26, 1999 between the Company and 101
Park Avenue Associates. - FILED HEREWITH (15)
10.33 Amended and Restated Management Incentive Plan as adopted by the
Board of Directors of the Company on February 29, 2000 - FILED
HEREWITH (15)
11. Computation of Earnings per Share - FILED HEREWITH
22. Subsidiaries of the Registrant. (Exhibit 22) (1)
25. Power of Attorney (included as part of the "Signatures" page).
27. Financial Data Schedule - FILED HEREWITH
- ------------------------
(1) Incorporated by reference to the exhibit number indicated to the
Company's Registration Statement on Form S-1 filed April 21, 1986
(Registration No. 33-5028) (the "S-1")
(2) Incorporated by reference to Exhibit 3.2 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1987.
(3) Incorporated by reference to the exhibit number indicated to Amendment
No. 2 to the S-1 filed June 10, 1986.
(4) Incorporated by reference to Exhibit 4 to the Company's Form 10-Q for the
quarter ended June 30, 1986.
(5) Incorporated by reference to the exhibit number indicated to the Company's
Registration Statement on Form S-8 filed March 31, 1987 (Registration
No.33-13063)
(6) Incorporated by reference to the exhibit numbers indicated to the Company's
Form 8-K filed December 22, 1987.
(7) Incorporated by reference to the exhibit numbers indicated to the Company's
Form 10-K for the year ended December 31, 1986.
(8) Incorporated by reference to the exhibit numbers indicated to the Company's
Form 10-K for the year ended December 31, 1988.
(9) Incorporated by reference to the exhibit numbers indicated to the Company's
Form 10-K for the year ended December 31, 1989.
(10) Incorporated by reference to the exhibit numbers indicated to the Company's
Form 10-K for the year ended December 31, 1992.
26
<PAGE>
(11) Incorporated by reference to the exhibit numbers indicated to the Company's
Form 10-K for the year ended December 31, 1993.
(12) Incorporated by reference to the exhibit numbers indicated to the Company's
Form 10-K for the year ended December 31, 1995.
(13) Incorporated by reference to the exhibit numbers indicated to the Company's
Form 10-K for the year ended December 31, 1997.
(14) Incorporated by reference to the exhibit numbers indicated to the Company's
Form 10-K for the year ended December 31, 1998
(15) Required to be filed pursuant to the instructions to Item 14(c) of Form
10-K.
27
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned whose
signature appears below constitutes and appoints Martin T. Sosnoff, Craig B.
Steinberg, and Anthony G. Miller, and each of them (with full power of each of
them to act alone), his true and lawful attorneys-in-fact and agents, for him
and on his behalf, and in his name, place and stead, to execute and sign all
amendments or supplements to this Annual Report on Form 10-K, and to file the
same with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do himself, and the registrant hereby confers like authority on its
behalf.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
issuer has duly caused this Annual Report on Form 10-K to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York
and State of New York, on this 22nd day of March, 2000.
ATALANTA/SOSNOFF CAPITAL CORPORATION
By: s/ Martin T. Sosnoff
--------------------
Martin T. Sosnoff
Chairman of the Board and
Chief Executive Officer
28
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons in the capacities and on
the dates indicated.
Signature Title Date
--------- ----- ----
s/ William Landberg
----------------------
William Landberg Senior Vice President, March 22, 2000
Director
s/ Ronald H. Menaker
----------------------
Ronald H. Menaker Director March 22, 2000
s/ Anthony G. Miller
----------------------
Anthony G. Miller Executive Vice President, March 22, 2000
Chief Operating Officer,
Chief Financial Officer
(Principal Financial
and Accounting Officer)
s/ Martin T. Sosnoff
----------------------
Martin T. Sosnoff Chairman, Chief March 22, 2000
Executive Officer,
Director (Principal
Executive Officer)
s/ Craig B. Steinberg
----------------------
Craig B. Steinberg President and March 22, 2000
Director of Research,
Director
s/ Thurston Twigg-Smith
----------------------
Thurston Twigg-Smith Director March 22, 2000
29
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION PAGE
<S> <C> <C>
10.32 Lease agreement dated October 26, 1999
between 101 Park Avenue
Associates and the Company
10.33 Amended and Restated Management
Incentive Plan as adopted by the Board
of Directors of the Company on February 29, 2000
11 Computation of Earnings per Share
27 Financial Data Schedule
</TABLE>
30
<PAGE>
EXHIBIT 10.32
---------------------------------
LEASE
---------------------------------
101 PARK AVENUE ASSOCIATES,
Landlord
TO
ATALANTA SOSNOFF CAPITAL CORPORATION,
Tenant
Premises:
A portion of the Sixth (6th) Floor
At
101 Park Avenue,
New York, New York 10178
---------------------------------
<PAGE>
TABLE OF CONTENTS
CAPTION PAGE
ARTICLE 1 Demise, Premises, Term, Rents .......................................1
ARTICLE 2 Use..................................................................3
ARTICLE 3 Deleted prior to execution ..........................................4
ARTICLE 4 Preparation of the Demised Premises..................................4
ARTICLE 5 Adjustments Of Rent..................................................4
ARTICLE 6 Deleted prior to execution .........................................14
ARTICLE 7 Subordination, Notice to Lessors and Mortgagees ....................14
ARTICLE 8 Quiet Enjoyment ....................................................17
ARTICLE 9 Assignment And Subletting ..........................................18
ARTICLE 10 Compliance With Laws And Requirements Of Public Authorities .......25
ARTICLE 11 Insurance .........................................................27
ARTICLE 12 Rules And Regulations .............................................31
ARTICLE 13 Tenants Changes ...................................................32
ARTICLE 14 Tenant's Property .................................................35
ARTICLE 15 Repairs And Maintenance ...........................................36
ARTICLE 16 Electricity .......................................................38
ARTICLE 17 Heat, Ventilating And Air-Conditioning ............................39
ARTICLE 18 Landlord's Other Services .........................................41
ARTICLE 19 Access, Changes In Building Facilities, Name ......................43
ARTICLE 20 Notice Of Accidents ...............................................45
ARTICLE 21 Non-Liability And Indemnification .................................45
ARTICLE 22 Destruction Or Damage ..............:..............................46
ARTICLE 23 Eminent Domain .....................:..............................48
ARTICLE 24 Surrender; Holdover ...............................................49
ARTICLE 25 Conditions Of Limitation ..........................................51
ARTICLE 26 Re-Entry By Landlord ..............................................53
ARTICLE 27 Damages............................................................53
ARTICLE 28 Waiver.............................................................55
ARTICLE 29 No Other Waivers Or Modifications .................................56
ARTICLE 30 Curing Tenants Defaults, Additional Rent ..........................57
ARTICLE 31 Broker.............................................................58
ARTICLE 32 Notices............................................................58
ARTICLE 33 Estoppel Certificate ..........................:...................59
ARTICLE 34 Arbitration .......................................................59
ARTICLE 35 No Other Representations, Construction, Governing Law, Consents ...60
ARTICLE 36 Parties Bound .....................................................61
ARTICLE 37 Certain Definitions And Construction ..............................61
i
<PAGE>
Table of Contents
-----------------
(continued)
ARTICLE 38 Adjacent Excavation And Construction; Shoring; Vaults..............61
ARTICLE 39 Landlord's Relocation Option ......................................62
Testimonium and Signatures.......................................64
Acknowledgments..................................................65
Exhibit A-Description ...........................................66
Exhibit B-Floor Plan ............................................67
Exhibit C-Heating, Ventilation and Air-Conditioning .............68
Exhibit D-Rules and Regulations .................................69
Exhibit E-Definitions............................................73
Exhibit F-Cleaning Specifications................................76
Certificate of Occupancy.........................................78
ii
<PAGE>
-----------------------------
LEASE
-----------------------------
LEASE dated as of October 26, 1999, between 101 PARK AVENUE ASSOCIATES,
a New York partnership, having an office at 101 Park Avenue, New York, New York
10178 (hereinafter referred to as "Landlord") and ATALANTA SOSNOFF CAPITAL
CORPORATION, a Delaware corporation, having an office at 101 Park Avenue, New
York, New York 10178 (hereinafter referred to as "Tenant").
WITNESSETH:
ARTICLE 1
Demise, Premises, Term, Rents
1.01 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the premises hereinafter described, in the building located at 101
Park Avenue, in the Borough of Manhattan, City, County and State of New York
(hereinafter referred to as the "Building"), on the parcel of land more
particularly described in Exhibit A (hereinafter referred to as the "Land"), for
the term hereinafter stated, for the rents hereinafter reserved and upon and
subject to the conditions (including limitations, restrictions and reservations)
and covenants hereinafter provided. Each party hereby expressly covenants and
agrees to observe and perform all of the conditions and covenants herein
contained on its part to be observed and performed.
1.02 The premises hereby leased to Tenant are a portion of the sixth
(6th) floor of the Building, as shown on the floor plan annexed hereto as
Exhibit B. Said premises together with all fixtures and equipment which at the
commencement, or during the term, of this lease are thereto attached (except
items not deemed to be included therein and removable by Tenant as provided in
Article 14) constitute and are hereinafter referred to as the "Demised
Premises".
1
<PAGE>
1.03 The term of this lease, for which the Demised Premises are hereby
leased, shall commence on September 1, 2002 (herein referred to as the
"Commencement Date"), and shall end at 5:00 p.m. of August 31, 2017, which
ending date is hereinafter referred to as the "Expiration Date", or shall end on
such earlier date upon which said term may expire or be cancelled or terminated
pursuant to any of the conditions or covenants of this lease or pursuant to law.
1.04 The "rents" reserved under this lease, for the term thereof, shall
be and consist of:
(a) "fixed rent" as follows:
(i) $918,900.00 per annum ($76,575.00 per
month) from September 1, 2002 through August 31, 2007, both dates inclusive
(sometimes hereinafter referred to as the "First Rental Period"); and
(ii) $1,010,790.00 per annum ($84,232.50 per
month) from September 1, 2007 through August 31, 2012, both dates inclusive
(sometimes hereinafter referred to as the "Second Rental Period"); and
(iii) $1,102,680.00 per annum ($91,890.00
per month) from September 1, 2012 and continuing thereafter throughout the
remainder of the term of this lease (sometimes hereinafter referred to as the
"Third Rental Period"),
all of which shall be payable in equal monthly installments in advance on the
first day of each and every calendar month during the term of this lease, and
(b) "additional rent" consisting of all such other
sums of money as shall become due from and payable by Tenant to Landlord
hereunder (for default in payment of which Landlord shall have the same remedies
as for a default in payment of fixed rent),
all to be paid to Landlord at its office, or such other place, or to such agent
and at such place, as Landlord may designate by notice to Tenant, in lawful
money of the United States of America.
1.05 Tenant shall pay the fixed rent and additional rent herein
reserved promptly as and when the same shall become due and payable, without
demand therefor and without any abatement, deduction or setoff whatsoever except
as expressly provided in this lease.
1.06 Tenant acknowledges that it has no rights to any development
rights, "air rights" or comparable rights appurtenant to the Land and Building,
and consents, without further consideration, to any utilization of such rights
by Landlord and agrees to promptly execute and deliver any instruments which may
be requested by Landlord, including instruments merging zoning lots, evidencing
such acknowledgment and consent. The provisions of this Section 1.07
2
<PAGE>
shall be deemed to be and shall be construed as an express waiver by Tenant of
any interest Tenant may have as a "party in interest" (as such quoted term is
defined in Section 12-10 Zoning Lot of the Zoning Resolution of the City of New
York) in the Land and Building.
ARTICLE 2
Use
2.01
(a) Tenant and any permitted occupant, subtenant or
assignee of Tenant shall use and occupy the Demised Premises for executive and
general offices, and incidental related uses, and for no other purpose.
(b) Notwithstanding anything to the contrary
contained above or elsewhere in this Lease, portions of the Demised Premises may
be used for the following: (i) installation and operation of one or more pantry
areas for reheating but not for cooking, including microwave oven, dwyer unit,
one or more refrigerators and other similar equipment and machines for the
preparation and storage of food and beverages for Tenant's officers and
directors, employees and staff; (ii) sale in the Demised Premises for Tenant's
officers and directors, employees, staff and business visitors, by vending
machines of any item the sale of which is not prohibited by law, whether by
Tenant or third parties; (iii) use of an area of the Demised Premises as a
lunchroom for consumption of food and beverages by Tenant's officers and
directors, employees, staff and business visitors; (iv) installation and
operation in the Demised Premises of electronic data and word processing
equipment and business machines and printing and other reproducing equipment and
(v) installation and operation of communication equipment (such as telecopiers,
telex and the like).
2.02 If any governmental license or permit, other than a Certificate of
Occupancy or any other license or permit required for mere occupancy of the
Demised Premises for the purposes set forth in Section 2.01(a) shall be required
for the proper and lawful conduct of Tenant's business in the Demised Premises,
or any part thereof, and if failure to secure such license or permit would in
any way adversely affect Landlord, Tenant, at its expense, shall duly procure
and thereafter maintain such license or permit and submit the same for
inspection by Landlord. Tenant shall at all times comply with the terms and
conditions of each such license or permit. Upon Tenant's request and at Tenant's
expense, Landlord shall join in the application for any licenses, permits,
approvals and authorizations (except for an application to change the
Certificate of Occupancy) whenever such joining by Landlord shall be required by
any governmental agency having jurisdiction.
2.03 Tenant shall not at any time use or occupy, or suffer or permit
anyone to use or occupy, the Demised Premises, or do or permit anything to be
done in the Demised Premises, in violation of the Certificate of Occupancy for
the Demised Premises or for the Building, a true and complete copy of which is
annexed hereto as Exhibit G.
3
<PAGE>
ARTICLE 3
Deleted prior to execution
ARTICLE 4
Preparation of the Demised Premises
4.01 Tenant is presently in possession of the Demised Premises pursuant
to a sublease from the present tenant thereof, and has fully inspected the
Demised Premises, and is satisfied with the condition thereof, and Tenant agrees
to accept possession of the Demised Premises on the Commencement Date in their
then "as is" condition.
4.02 Any installations, materials or work which may be undertaken by or
for the account of Tenant to equip, decorate or furnish the Demised Premises for
Tenant's occupancy (hereinafter referred to as "Tenant's Work") shall be
performed by Tenant, at its sole cost and expense, in accordance with all the
terms, covenants and conditions of this lease, including without limitation,
Articles 13 and 14 hereof, as if such Tenant's Work was a "Tenant's Change" as
defined in Article 13.
ARTICLE 5
Adjustments Of Rent
5.01 Tax Escalation. For the purpose of Sections 5.01-5.06:
(a) "Taxes" shall mean the real estate taxes and
assessments and special assessments imposed upon the Building and the Land
including, without limitation, any assessments for public improvement or benefit
to the Building or Land, or the locality in which the Land is situated, such as
Business Improvement District taxes and assessments. If at any time during the
term of this lease the methods of taxation prevailing at the commencement of the
term hereof shall be altered so that in lieu of or as an addition to or as a
substitute for the whole or any part of the taxes, assessments, levies,
impositions or charges now levied, assessed or imposed on real estate and the
improvements thereon, there shall be levied, assessed or imposed (i) a tax,
assessment, levy, imposition or charge wholly or partially as capital levy or
otherwise on the rents received therefrom, or (ii) a tax, assessment, levy,
imposition or charge measured by or based in whole or in part upon the Demised
Premises and imposed upon Landlord, or (iii) a license fee measured by the rents
payable by Tenant to Landlord, then all such taxes, assessments, levies,
impositions or charges, or the part thereof so measured or based, shall be
deemed to be included within the term "Taxes" for the purposes hereof;
The term "Taxes" shall not include any income, franchise, transfer, inheritance,
capital stock or other similar tax imposed on Landlord unless, due to a future
change in the method of taxation, an income, franchise, transfer, inheritance,
capital stock or other tax shall be levied against Landlord in substitution for
any tax or increase therein which would otherwise constitute "Taxes", as defined
in the first sentence of paragraph (a), in which event such income, franchise,
4
<PAGE>
transfer, inheritance, capital stock or other tax shall be deemed to be included
in the term "Taxes" but any such income or similar tax shall be computed as if
the Building and the Land were the only property of Landlord and Landlord's only
source of income were the rents received by Landlord from tenants or occupants
of the Building. Additionally, the term "Taxes" shall not include any interest
or penalties for late payment thereof or sewer or water rents, rates and charges
for the Building..
If, by law, any assessment may be paid in installments, then, for the purposes
hereof (i) such assessment shall be deemed to have been payable in the maximum
number of installments permitted by law and (ii) there shall be included in
Taxes, for each Tax year in which such installments may be paid, the
installments of such assessment so becoming payable during such Tax Year,
together with any interest thereon payable during such Tax Year.
Anything herein contained to the contrary notwithstanding, Taxes shall not
include any assessment or real estate taxes on any expansion of the Building
which is constructed or completed after the Commencement Date of this lease.
(b) "Base Tax Year" shall mean fiscal year July 1,
1999 to June 30, 2000, inclusive;
(c) "Base Tax Rate" shall mean the Taxes, as finally
determined, for the Base Tax Year;
(d) "Tax Year" shall mean the fiscal year for which
Taxes are levied by the governmental authority;
(e) "Tenant's Proportionate Share" shall mean for
purposes of this lease and all calculations in connection herewith 1.626%, which
has been computed on the basis of a fraction, the numerator of which is the
agreed rentable square foot area of the Demised Premises as set forth below
(which rentable square foot area is hereinafter sometimes referred to as the
"Multiplication Factor") and the denominator of which is the agreed rentable
square foot area of the Building as set forth below. The parties agree that the
rentable square foot area of the Demised Premises shall be deemed to be 18,378
square feet and that the agreed rentable square foot area of the Building shall
be deemed to be 1,130,100 square feet (hereinafter referred to as the "Building
Area").
(f) "Tenant's Projected Share of Taxes" shall mean
the Tax Payment (as hereinafter defined), if any, payable by Tenant for the
immediately prior Tax Year divided by twelve (12) and payable monthly by Tenant
to Landlord as additional rent.
5.02 If the Taxes for any Tax Year shall be more than the Base Tax
Rate, Tenant shall pay, as additional rent for such Tax Year, an amount equal to
Tenant's Proportionate Share of the amount by which the Taxes for such Tax Year
are greater than the Base Tax Rate. (The amount payable by Tenant is hereinafter
referred to as the "Tax
5
<PAGE>
Payment"). The Tax Payment and the Base Tax Rate shall be appropriately
prorated, if necessary, to correspond with that portion of a Tax Year occurring
within the Term of this lease. After Landlord has furnished Tenant with written
demand for the Tax Payment, which demand shall be accompanied by a copy of the
tax bill along with Landlord's computation of the Tax Payment. Tenant shall pay
Landlord, with the monthly installments of rent due on June 1 and December 1 of
each such Tax Year, an amount equal to one-half (1/2) of the total sum of the
Tax Payment for such Tax Year, until such time as a new demand (and said
accompanying information) for a subsequent Tax Year shall become effective. If a
demand and accompanying information are furnished to Tenant after the
commencement of the Tax Year in respect of which such demand is made, Tenant
shall, within ten (10) days after the date of receipt by Tenant of a request by
Landlord for such payment, pay to Landlord an amount equal to those installments
of the total Tax Payment payable as provided in the preceding sentence. If,
during the term of this lease, Taxes are required to be paid in full or in
quarterly or other installments, on any other date or dates than as presently
required, then Tenant's installments of its Tax Payment shall be correspondingly
modified so that said payments are due ten (10) days after the date of receipt
by Tenant of a request by Landlord for such payment.
5.03 Notwithstanding the fact that the increase in rent is measured by
an increase in Taxes, such increase is additional rent and shall be paid by
Tenant as provided herein regardless of the fact that Tenant may be exempt, in
whole or in part, from the payment of any taxes by reason of Tenant's diplomatic
or other tax exempt status or for any other reason whatsoever.
5.04 Only Landlord shall be eligible to institute tax reduction or
other proceedings to reduce the assessed valuation of the Land and Building.
Should Landlord be successful in any such reduction proceedings and obtain a
rebate or a reduction in assessment or a tax credit for periods during which
Tenant has paid or is obligated to pay Tenant's Proportionate Share of increases
in Taxes then either (a) Landlord shall, in the event a rebate is obtained,
return Tenant's Proportionate Share of such rebate to Tenant after deducting
Landlord's reasonable expenses, including without limitation, reasonable
attorneys' fees and disbursements in connection with such rebate (such expenses
incurred with respect to a rebate or reduction in assessment being hereinafter
referred to as "Tax Expenses"), or, (b) if a reduction in assessment is obtained
prior to the date Tenant would be required to pay Tenant's Proportionate Share
of such increase in Taxes, Tenant shall pay to Landlord, upon written request,
Tenant's Proportionate Share of such Tax Expenses but in no event in excess of
the savings realized by, or the amount refunded to, Tenant.
5.05 Commencing with the first Tax Year after Landlord shall be
entitled to receive a Tax Payment, Tenant, at Landlord's option and upon notice
from Landlord, shall pay to Landlord, as additional rent for the then Tax Year,
Tenant's Projected Share of Taxes. Upon each date that a Tax Payment or an
installment on account thereof shall be due from Tenant pursuant to the terms of
Section 5.02 hereof, Landlord shall apply the aggregate of the installments of
Tenant's Projected Share of Taxes then on account with Landlord against the Tax
Payment or installment thereof then due from Tenant. In the event that such
aggregate amount
6
<PAGE>
shall be insufficient to discharge such Tax Payment or installment, Landlord
shall so notify Tenant in a demand served upon Tenant pursuant to the terms of
Section 5.02, and the amount of Tenant's payment obligation with respect to such
Tax Payment or installment pursuant to Section 5.02 shall be equal to the amount
of the insufficiency. If, however, such aggregate amount shall be greater than
the Tax Payment or installment, Landlord shall forthwith either (a) pay the
amount of excess directly to Tenant concurrently with the notice or (b) permit
Tenant to credit the amount of such excess against the next payment of Tenant's
Projected Share of Taxes due hereunder and, if the credit of such payment is not
sufficient to liquidate the entire amount of such excess, Landlord shall then
pay the amount of any difference to Tenant.
5.06
(a) Anything in this Article 5 to the contrary
notwithstanding, in the event that the holder of any superior mortgage or the
lessor of any superior lease (as such terms are defined in Section 7.01 hereof)
shall require advance payments from Landlord on account of Taxes, then Tenant
will pay Tenant's Proportionate Share of any amounts required to be paid in
advance by Landlord with the holder of the superior mortgage or the lessor of
the superior lease to the extent that such payments made by Landlord exceed the
Base Tax Rate. Any payments to be made by Tenant under this Section 5.06(a)
shall be made ten (10) days prior to the date Landlord is required to make such
payments to the holder of the superior mortgage or the lessor of the superior
lease;
(b) Anything in Sections 5.01 through 5.06 to the
contrary notwithstanding, in no event whatsoever shall the fixed rent be reduced
below the fixed rent initially set forth in Section 1.04(a) hereof as same may
be increased by provisions of this lease other than Sections 5.01 through 5.06.
5.07 Expense Escalation. For purposes of this Article:
(a) "Operating Expenses" shall mean any or all actual
expenses (without duplication) incurred by Landlord in connection with the
operation of the Building including all expenses incurred as a result of
Landlord's compliance with any of its obligations hereunder other than
Landlord's Work and such expenses shall include: (i) salaries, wages, medical,
surgical and general welfare benefits, (including group life insurance) pension
payments and other fringe benefits of employees of Landlord engaged in the
operation and maintenance of the Building (The salaries and other benefits
aforesaid of such employees servicing the Building shall be comparable to those
of employees servicing buildings similar to the Building, located in the Borough
of Manhattan and if such employees shall service other buildings, only the share
of the salaries and benefits representing compensation for work in the Building
shall be included in Operating Expenses); (ii) payroll taxes, worker's
compensation, uniforms and dry cleaning for the employees referred to in
subdivision (i); (iii) the cost of all charges for steam, heat, ventilation, air
conditioning and water (including sewer rental) furnished to the Building and/or
used in the operation of all of the service facilities of the Building and the
7
<PAGE>
cost of all charges for electricity furnished to the public and service areas of
the Building and/or used in the operation of all of the service facilities of
the Building including any taxes on any of such utilities; (iv) the cost of all
charges for rent; casualty, war risk insurance (if obtainable from the United
States government) and of liability insurance for the Building to the extent
that such insurance is required to be carried by Landlord under any superior
lease or superior mortgage or if not required under any superior lease or
superior mortgage then to the extent such insurance is carried by owners of
Buildings comparable to the Building; (v) the cost of all building and cleaning
supplies for the common areas of the Building and charges for telephone for the
Building; (vi) the cost of all charges for management, security, cleaning and
service contracts for the Building (if no managing agent is employed by
Landlord, there shall be included in Operating Expenses a sum equal to 2.5% of
all rents, additional rents and other charges collected from tenants or other
permitted occupants of the Building); (vii) the cost of rentals of capital
equipment designed to result in savings or reductions in Operating Expenses to
the extent of actual savings or reductions only and (viii) the cost incurred in
connection with the maintenance and repair of the Building. Provision in this
lease for an expense item to be Landlord's expense or at Landlord's expense
shall not affect the inclusion thereof, to the extent above provided, in
Operating Expenses. Operating Expenses shall not include (A) administrative
wages and salaries; (B) renting commissions; (C) franchise taxes, inheritance,
estate, gift, succession, profit, gross receipts, transfer and income taxes of
Landlord; (D) Taxes on the Land and Building; (E) expenditures for capital
improvements except (1) those which under generally applied real estate practice
are expensed or regarded as deferred expenses and (2) for capital improvements
required by any law and/or requirements of public authority enacted after the
date of this lease or any modifications or amendments of presently existing laws
and/or requirements of public authority enacted after the date of this lease or
required in order to cause the Building to remain in compliance with any
presently existing law and/or requirement (but in no event including costs
incurred in connection with the making of capital improvements in order to
comply with existing laws and/or requirements of public authority to the extent
that the Building is not, as of the date hereof, in compliance with such
existing laws and/or requirements) or (3) for capital improvements which are
designed to result in a saving in the amount of Operating Expenses, in any of
such cases the cost thereof shall be included in Operating Expenses for the
Operational Year in which the costs are incurred and subsequent Operational
Years, amortized on a straight line basis, over the useful life thereof as
determined in accordance with generally accepted accounting principles
consistently applied (except that, with respect to a capital improvement which
is of the type specified in clause (3), such cost shall be amortized on a
straight line basis over such period of time as Landlord reasonably estimates
such savings in Operating Expenses will equal Landlord's cost for such capital
improvement provided that the amount to be included in Operating Expenses in any
Operational Year shall not exceed the savings in Operating Expenses for any such
Operational Year), with an interest factor in any of such cases equal to two
(2%) percent above the prime rate (hereinafter referred to as the "Base Rate")
of The Chase Manhattan Bank (or Citibank, N.A. if The Chase Manhattan Bank shall
not then have an established prime rate; or the prime rate of any major banking
institution doing business in New York City, as selected by Landlord, if none of
the aforementioned banks shall be in existence or have an established prime
rate) at the time of Landlord's having incurred said expenditure;
8
<PAGE>
Additionally, Operating Expenses shall not include the
following except to the extent specifically permitted by a specific exception to
the following:
1. depreciation;
2. interest on, and amortization of, mortgages and any
recording or mortgage tax or expense in connection therewith;
3. leasehold improvements (including painting) made for
tenants of the Building or made in order to prepare for occupancy by a new
tenant or any cash or other consideration paid by Landlord on accounts of, with
respect to, or in lieu of such leasehold improvements;
4. financing costs in connection with any financing or
refinancing of the Building, including, without limitation, points, commitment
fees, broker's fees, and legal fees and expenses;
5. the cost of repairs or restoration necessitated by fire or
other casualty or any condemnation;
6. the cost of any items from which Landlord is reimbursed by
insurance, by other tenants of the Building (except pursuant to provisions
similar to Sections 5.07-5.11 hereof or other escalation provisions designed to
reimburse Landlord for increases in the cost of operating the Building), by
warranty, by award in condemnation or otherwise compensated;
7. the cost of any work or service performed for or made
available to any tenant of the Building (other than Tenant) to a greater extent
or in a more favorable manner than that furnished generally, without additional
expense, to the tenants and other occupants of the Building (including Tenant);
8. Rent and other amounts payable under any ground, superior
leases as defined in Section 7.01;
9. the cost of any electric current furnished to the Demised
Premises or any areas of the Building occupied by tenants for purposes other
than operation of building equipment or machinery or the lighting of toilets,
shaftways or building machinery or fan rooms;
10. salaries, compensation or other benefits paid in respect
of officers and executives of Landlord above the level of building manager;
11. any cost stated in Operating Expenses representing an
amount paid to a Landlord-related corporation or entity which is in excess of
the amount which would be paid in the absence of such relationship;
9
<PAGE>
12. advertising and promotional expenses of the Building;
13. the cost of installing, operating and maintaining (to the
extent such operating and maintenance costs exceed such costs for operating and
maintenance office space) any specialty such as (but not limited to) an
observatory, broadcasting facilities, luncheon club, athletic or recreational
club, theater, rehearsal hall, art gallery or garage including, without
limitation, any compensation paid to clerks, attendants or other persons;
14. auditing fees, other than auditing fees in connection with
the preparation of statements required pursuant to additional rent or lease
escalation provisions;
15. the cost of correcting defects in the construction of the
Building or in the Building equipment, except that conditions (not occasioned by
construction or equipment defects) resulting from ordinary wear and tear shall
not be deemed defects for the purpose of this category;
16. cost of any repair made by Landlord to remedy damage
caused by, or resulting from, the negligence or willful act or omission of
Landlord, its agents, servants, contractors or employees;
17. any insurance premium to the extent that Landlord is
entitled to be reimbursed therefor by Tenant pursuant to this Lease or by any
other occupant of the Building pursuant to its lease except pursuant to
provisions similar to Sections 5.07-5.11 hereof or other escalation provisions
designed to reimburse Landlord for increases in the cost of operating the
Building;
18. legal, space planner's and other professional fees and
expenses incurred in preparing, negotiating and executing leases, amendments,
terminations and extensions or in resolving any disputes with tenants and other
occupants or enforcing lease obligations, including, without limitation, court
costs;
19. expenses incurred by Landlord in connection with the
transfer or disposition of the Land or Building or any ground, underlying or
overriding lease, including, without limitation, transfer, deed and gains taxes;
20. cost incurred to correct any misrepresentation by Landlord
to Tenant;
21. bad debt loss, rent loss or reserves for either;
22. costs for sculpture, paintings or other objects of art in
excess of amounts typically spent for such items in comparable buildings in the
vicinity of the Building;
10
<PAGE>
23. costs incurred by Landlord arising out of its failure to
perform, or breach of, any of its covenants, agreements, representations,
warranties, guarantees or indemnities made under this Lease;
24. costs, fines, interest or penalties incurred by Landlord
due to violations of any applicable governmental law, requirement or order;
25. and any late fees, penalties, interest charges or similar
fees incurred by Landlord;
26. costs associated with the operation of the business of the
entity which constitutes Landlord as the same are distinguished from the costs
of operation of the Building, including, without limitation, accounting and
legal expenses, costs of selling, syndicating, financing, mortgaging or
hypothecating Landlord's interest in the Building, costs of any disputes between
Landlord and its employees, or building managers;
27. overtime HVAC costs or electricity costs for other
Building tenants;
28. "takeover expenses" (i.e., expenses incurred by Landlord
with respect to the leaseback by Landlord of space either located in another
building or in the Building in connection with the leasing of space in the
Building);
29. any amounts payable by Landlord by way of indemnity or for
damages or which constitute a fine, interest, or penalty, including interest or
penalties for any late payments of operating costs;
30. except as set forth in Section 5.07(a)(E), any improvement
installed or work performed or any other cost or expense incurred by Landlord in
order to comply with the requirements for the obtaining or renewal of a
certificate of occupancy for the Building or any space therein;
31. the cost of overtime or other expense to Landlord in
curing its defaults; and
32. costs incurred in the removal, abatement or other
treatment of asbestos or other materials presently designated as "hazardous"
present in the Building or on the Land as of the date of this lease and which
are required to be removed or otherwise dealt with by Landlord pursuant to
applicable laws and/or requirements of governmental authorities in effect as of
the date of this lease.
Additionally, there shall be deducted from Operating Expenses all amounts
received by Landlord through proceeds of insurance or condemnation awards to the
extent they are compensation for, or reimbursement of, sums previously included
in Operating Expenses hereunder.
11
<PAGE>
If during all or part of the Base Operational Year or any other Operational
Year, Landlord shall not furnish any particular item(s) of work or service
(which would otherwise constitute an Operating Expense hereunder) to office
portions of the Building due to the fact that (i) such portions are not occupied
or leased, (ii) such item of work or service is not required or desired by the
tenant of such portion, or (iii) such tenant is itself obtaining and providing
such item of work or service, then, for the purposes of computing Operating
Expenses, the amount for such item and for such period shall be deemed to be
increased by an amount equal to the additional costs and expenses which would
reasonably have been incurred during such period by Landlord if it had at its
own expense furnished such item of work or services to such portion of the
Building or to such tenant.
(b) "Operational Year" shall mean each calendar year
or part thereof occurring during the Term of this lease;
(c) "Base Operational Year" shall mean calendar year
2000;
(d) "Base Operating Expenses" shall mean Operating
Expenses for the Base Operational Year;
(e) "Tenant's Projected Share of Operating Expense"
shall mean (i) Tenant's Operating Expense Payment, if any, for the prior
Operating Year divided by (ii) twelve (12), and payable monthly by Tenant to
Landlord as additional rent.
5.08 After the expiration of the Base Operational Year, Landlord shall
furnish Tenant a statement setting forth the aggregate amount of the Operating
Expenses for the Base Operational Year. After the expiration of each Operational
Year after the Base Operational Year, Landlord shall furnish Tenant a reasonably
detailed statement prepared by a certified public accountant setting forth the
aggregate amount of the Operating Expenses for such Operational Year, each of
which statements shall be certified by a general partner of Landlord, if
Landlord shall be a partnership, or by the chief financial officer of Landlord,
if Landlord shall be a corporation. The statement furnished under this Section
5.08 is hereinafter referred to as an "Operating Statement".
5.09 If the Operating Expenses for any Operational Year, including the
Operational Year in effect on the Commencement Date, shall be more than the Base
Operating Expenses, Tenant shall pay, as additional rent for such Operational
Year, an amount equal to Tenant's Proportionate Share of the amount by which the
Operating Expenses for such Operational Year are greater than the Base Operating
Expenses. (The amount payable by Tenant is hereinafter referred to as the
"Operating Expense Payment".) The Operating Expense Payment shall be prorated,
if necessary, to correspond with that portion of an Operational Year occurring
within the Term of this lease. The Operating Expense Payment shall be payable by
Tenant within thirty (30) days after receipt of the Operating Statement.
12
<PAGE>
5.10 Commencing with the first Operational Year after Landlord shall be
entitled to receive an Operating Expense Payment, Tenant shall pay to Landlord
as additional rent for the then Operational Year, Tenant's Projected Share of
Operating Expenses. If the then Operating Statement furnished by Landlord to
Tenant at the end of then Operational Year shall indicate that Tenant's
Projected Share of Operating Expenses exceeded the Operating Expense Payment,
Landlord shall forthwith either (a) pay the amount of excess directly to Tenant
concurrently with the notice or (b) permit Tenant to credit the amount of such
excess against the subsequent payment of rent due hereunder; if such Operating
Statement furnished by Landlord to Tenant hereunder shall indicate that the
Operating Expense Payment exceeded Tenant's Projected Share of Operating
Expenses for the then Operational Year, Tenant shall forthwith pay the amount of
such excess to Landlord.
5.11
(a) Every Operating Statement given by Landlord pursuant to
Section 5.08 shall be conclusive and binding upon Tenant unless (i) within
ninety (90) days after the receipt of such Operating Statement Tenant shall
notify Landlord that it disputes the correctness of the Operating Statement,
specifying the particular respects in which the Operating Statement is claimed
to be incorrect, and (ii) if such dispute shall not have been settled by
agreement, shall submit the dispute to arbitration within one hundred fifty
(150) days after receipt of the Operating Statement. Pending the determination
of such dispute by agreement or arbitration as aforesaid, Tenant shall within
thirty (30) days after receipt of such Operating Statement, pay additional rent,
if due, in accordance with the Operating Statement and such payment shall be
without prejudice to Tenant's position. If the dispute shall be determined in
Tenant's favor, Landlord shall, on demand, pay Tenant the amount of Tenant's
overpayment of rents, if any, resulting from compliance with the Operating
Statement. Landlord agrees to grant Tenant and its officers and accountants
reasonable access to Landlord's books and records, during the ninety (90) day
period set forth in Section 5.11(a)(i) above, for the purpose of verifying
Operating Expenses incurred by Landlord and to have and make copies of any and
all bills and vouchers relating thereto and subject to reimbursement by Tenant
for the cost thereof. Tenant agrees that all information with respect to
Operating Expenses to which Tenant is given access shall be held in confidence
and Tenant shall require that any agent or outside party it may retain shall
agree, in writing, to hold such information in confidence.
(b) Anything in Sections 5.07 through 5.12 to the contrary
notwithstanding, in no event whatsoever shall the fixed rent be reduced below
the fixed rent initially set forth in Section 1.04(a) hereof.
5.12 Subject to the further provisions of this Section 5.12, Landlord
shall be under no obligation to contest the Taxes or the assessed valuation of
the Land and/or the Building for any Tax Year, or to refrain from contesting the
same, and may settle any such contest on such terms as Landlord in its sole
judgment considers proper. If tenants of at least seventy-five (75%) percent of
the total rentable area of the Building shall, by timely notice to
13
<PAGE>
Landlord, request Landlord to do so, Landlord shall institute appropriate
proceedings to reduce the Taxes for any Tax Year and use best efforts to effect
a reduction therein. If tenants of seventy-five (75%) percent of the total
rentable area of the Building request Landlord to do so and Tenant shall be one
of such requesting tenants, then Tenant shall pay its proportionate share
(according to the relation that the rentable area of the Demised Premises bears
to the total rentable area represented by all such requesting tenants) of the
reasonable costs and expenses of such proceedings that shall have been
instituted at the request of such tenants. In the event that such proceedings
shall cover more than one (1) Tax Year, the expenses referred to in this Section
5.12 shall be allocated to each Tax Year involved on the basis of the reduction
effectuated. Landlord shall not compromise, cancel, or withdraw such proceedings
that shall have been instituted at the request of tenants at seventy-five (75%)
percent or more of the total rentable area of the Building, unless it shall have
first notified all such requesting tenants of its proposal to do so and shall
not have received, within thirty (30) days thereafter, objections in writing
from tenants of more than fifty (50%) percent of the total rentable areas
represented by such requesting tenants, accompanied by written agreements to
reimburse Landlord forthwith for all of its costs and expenses in connection
therewith, for which such objectors shall be liable ratably according to their
respective rentable areas in relation to the total rentable area represented by
all such objectors. Upon receipt of such objections, agreements and
reimbursements, Landlord shall transfer the responsibility for such proceedings
to said objectors, who may carry on the same in their own names or in Landlord's
name, as may be appropriate, at their own expense and shall be entitled to
recoupment for all of their costs and expenses from any refund obtained, but not
otherwise.
5.13 Landlord's failure during the lease term to prepare and deliver
any of the tax bills, statements, notice or bills set forth in this Article 5,
or Landlord's failure to make a demand, shall not in any way cause Landlord to
forfeit or surrender its rights to collect any of the foregoing items of
additional rent which may have become due during the term of this lease.
Landlord's and Tenant's liability for the amounts due to the other under this
Article 5 shall survive the expiration of the term of this lease.
ARTICLE 6
Deleted prior to execution
ARTICLE 7
Subordination, Notice to Lessors and Mortgagees
7.01 This lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all ground leases, overriding leases
and underlying leases of the Land and/or the Building now or hereafter existing
and to all mortgages which may now or hereafter affect the Land and/or the
Building and/or any of such leases, whether or not such mortgages shall also
cover other lands and/or buildings, to each and every advance made or hereafter
to be made under such mortgages, and to all renewals, modifications,
replacements and extensions of such leases and such mortgages and spreaders and
consolidations of such mortgages. This Section shall be self-operative and no
further instrument of subordination shall
14
<PAGE>
be required. In confirmation of such subordination, Tenant shall promptly
execute and deliver any instrument that Landlord, the lessor of any such lease
or the holder of any such mortgage or any of their respective successors in
interest may reasonably request to evidence such subordination. In the event
Tenant fails to execute and deliver to Landlord such instrument within fifteen
(15) days of request therefor, Landlord may execute such instrument for and on
behalf of Tenant as its attorneys-in-fact. In acknowledgment thereof, Tenant
hereby appoints Landlord as its irrevocable attorney-in-fact coupled with an
interest solely to execute and deliver any instruments required to carry out the
intent of this Section 7.01 on behalf of Tenant. The leases to which this lease
is, at the time referred to, subject and subordinate pursuant to this Article
are hereinafter sometimes referred to as "superior leases" and the mortgages to
which this lease is, at the time referred to, subject and subordinate are
hereinafter sometimes referred to as "superior mortgages" and the lessor of a
superior lease or its successor in interest at the time referred to is sometimes
hereinafter referred to as a "lessor".
7.02 In the event of any act or omission of Landlord which would give
Tenant the right, immediately or after lapse of a period of time, to cancel or
terminate this lease, or to claim a partial or total eviction, Tenant shall not
exercise such right (i) until it has given written notice of such act or
omission to the holder of each superior mortgage and the lessor of each superior
lease whose name and address shall previously have been furnished to Tenant in
writing, and (ii) unless such act or omission shall be one which is not capable
of being remedied by Landlord or such mortgage holder or lessor within a
reasonable period of time, until a reasonable period for remedying such act or
omission shall have elapsed following the giving of such notice and following
the time when such holder or lessor shall have become entitled under such
superior mortgage or superior lease, as the case may be, to remedy the same
(which reasonable period shall in no event be less than the period to which
Landlord would be entitled under this lease or otherwise, after similar notice,
to effect such remedy), provided such holder or lessor shall with due diligence
give Tenant written notice of intention to, and commence and continue to remedy
such act or omission.
7.03 If the lessor of a superior lease or the holder of a superior
mortgage shall succeed to the rights of Landlord under this lease, whether
through possession or foreclosure action or delivery of a new lease or deed,
then at the request of such party so succeeding to Landlord's rights (herein
sometimes referred to as "successor landlord") and upon successor landlord's
written agreement to accept Tenant's attornment, Tenant shall attorn to and
recognize such successor landlord as Tenant's landlord under this lease, and
shall promptly execute and deliver any instrument that such successor landlord
may reasonably request to evidence such attornment. Upon such attornment this
lease shall continue in full force and effect as, or as if it were, a direct
lease between the successor landlord and Tenant upon all of the terms,
conditions and covenants as are set forth in this lease and shall be applicable
after such attornment except that the successor landlord shall not be:
(a) liable for any previous act or omission of
Landlord (or its predecessor in interest) under this lease, but such successor
shall be obligated to comply with
15
<PAGE>
the provisions of this lease from and after such attornment, subject to the
further provisions of this Section 7.03;
(b) bound by any previous modification of this lease,
not expressly provided for in this lease, or by any previous prepayment of more
than one month's fixed rent, unless such modification or prepayment shall have
been expressly approved in writing by the lessor of the superior lease or the
holder of the superior mortgage through or by reason of which the successor
landlord shall have succeeded to the rights of Landlord under this lease;
(c) responsible for any monies owing by Landlord to
the credit of Tenant;
(d) subject to any credits, offsets, claims,
counterclaims, demands or defenses which Tenant may have against Landlord (or
its predecessors in interest);
(e) bound by any covenant to undertake or complete
any construction of the Demised Premises or any portion thereof or pay for or
reimburse Tenant for any costs incurred in connection with such construction;
(f) required to account for any security deposit
other than any security deposit actually delivered to the successor landlord;
(g) bound by any obligation to make any payment to
Tenant or grant or be subject to any credits, except for services, repairs,
maintenance and restoration provided for under this lease to be performed after
the date of attornment, it being expressly understood, however, that the
successor landlord shall not be bound by an obligation to make payment to Tenant
with respect to construction performed by or on behalf of Tenant at the Demised
Premises.
7.04 If, in connection with obtaining financing or refinancing for the
Building of which the Demised Premises form a part, or Landlord's estate and
interest therein, a lender shall request reasonable modifications to this lease
as a condition to such financing or refinancing, Tenant will not withhold, delay
or defer its consent thereto, provided that such modifications do not increase
the obligations or decrease the rights of Tenant hereunder (except, perhaps, to
the extent that Tenant may be required to give notices of any defaults by
Landlord to such lender and/or permit the curing of such defaults by such lender
together with the granting of such additional time for such curing as may be
required for such lender to get possession of the Building or Landlord's
interest therein) or materially adversely affect the leasehold interest hereby
created. In no event shall a requirement that the consent of any such lender be
given for any modification of this lease be deemed to materially adversely
affect the leasehold interest hereby created.
7.05 Landlord shall promptly request, and thereafter diligently pursue
obtaining, a Subordination, Non-Disturbance and Attornment Agreement
(hereinafter referred to
16
<PAGE>
as an "SNDA") for the benefit of Tenant from the holder of any superior mortgage
now existing or made by Landlord subsequent to the date hereof and from the
lessor under any superior lease now existing or made by Landlord subsequent to
the date hereof, which SNDA shall be in form and content then utilized by such
holder or lessor and which shall contain, in substance, the provisions set forth
in the subsections (a) and (b) below:
(a) From the lessor under a superior lease: An
agreement, for the benefit of Tenant, to the effect, inter alia, that as long as
Tenant is not in default, which continues after any required notice and the
expiration of any applicable grace period, in the payment of fixed rent or
additional rent or any other term, covenant or condition of this lease and
provided Tenant attorns to such lessor under the terms and provisions of this
lease, (i) its rights as Tenant hereunder shall not be affected or terminated,
(ii) its possession of the Demised Premises shall not be disturbed, (iii) no
action or proceeding shall be commenced to remove or evict Tenant, and (iv) this
lease shall at all times continue in full force and effect notwithstanding the
termination or expiration of the superior lease, prior to the expiration or
termination of this lease.
(b) From the holders of superior mortgages: An
agreement, for the benefit of Tenant, to the effect, inter alia, that as long as
Tenant is not in default, which continues after any required notice and the
expiration of any applicable grace period, in the payment of fixed rent or
additional rent or any other term, covenant or condition of this lease, (i) its
rights as Tenant hereunder shall not be terminated and (ii) the possession of
Tenant shall not be disturbed by the mortgagee or by any proceedings on the debt
which any such superior mortgage secures or by virtue of a right or power
contained in any such superior mortgage or the bond or note secured thereby and
(iii) that any sale at foreclosure will be subject to this lease.
Landlord shall not be required to incur any expense in connection with
any SNDA (other than customary legal and processing fees) and the failure to
obtain any SNDA shall in no way affect this lease or Tenant's obligations
hereunder.
7.06 Landlord represents that as of the date of execution hereof, (i)
there are no existing superior mortgages other than (a) mortgage(s) held by The
Travelers Insurance Company and (ii) there are no existing superior leases.
ARTICLE 8
Quiet Enjoyment
8.01 So long as Tenant pays all of the fixed rent and additional rent
due hereunder and performs all of Tenant's other obligations hereunder within
any applicable grace or cure period, Tenant shall peaceably and quietly have,
hold and enjoy the Demised Premises subject, nevertheless, to the obligations of
this lease and, as provided in Article 7, to the superior leases and the
superior mortgages.
17
<PAGE>
ARTICLE 9
Assignment And Subletting
9.01 Subject to the further provisions of this Article 9, Tenant, for
itself, its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that it shall not
assign, mortgage or encumber this agreement, nor underlet, nor suffer, nor
permit the Demised Premises or any part thereof to be used or occupied by
others, without the prior written consent of Landlord in each instance. If this
lease be assigned, or if the Demised Premises or any part thereof be underlet or
occupied by anybody other than Tenant, Landlord may, after default by Tenant,
collect rent from the assignee, undertenant or occupant, and apply the net
amount collected to the rent herein reserved, but no assignment, underletting,
occupancy or collection shall be deemed a waiver of the provisions hereof, the
acceptance of the assignee, undertenant or occupant as tenant, or a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant
herein contained. The consent by Landlord to an assignment or underletting shall
not in any wise be construed to relieve Tenant from obtaining the express
consent in writing of Landlord to any further assignment or underletting. In no
event shall any permitted sublessee assign or encumber its sublease or further
sublet all or any portion of its sublet space, or otherwise suffer or permit the
sublet space or any part thereof to be used or occupied by others, without
Landlord's prior written consent in each instance which will be granted or
deemed on the same basis as a similar request by Tenant.
9.02 If Tenant shall at any time or times during the term of this lease
desire to assign this lease or sublet all or part of the Demised Premises,
Tenant shall give notice thereof to Landlord, which notice shall be accompanied
by (a) a term sheet signed by an officer or principal of Tenant containing all
material terms and conditions in connection with the proposed assignment or
sublease, the effective or commencement date of which shall be not less than
thirty (30) nor more than 180 days after the giving of such notice, (b) a
statement setting forth in reasonable detail the identity of the proposed
assignee or subtenant, the nature of its business and its proposed use of the
Demised Premises, and (c) current financial information with respect to the
proposed assignee or subtenant, including, without limitation, its most recent
financial report. Such notice shall be deemed an offer from Tenant to Landlord
whereby Landlord (or Landlord's designee) may, at its option (hereinafter
referred to as "Landlord's Option"), (i) sublease such space (hereinafter
referred to as the "Leaseback Space") from Tenant upon the terms and conditions
hereinafter set forth (if the proposed transaction is a sublease of all or part
of the Demised Premises), (ii) terminate this lease (if the proposed transaction
is an assignment or a sublease of all or substantially all of the Demised
Premises), or (iii) terminate this lease with respect to the Leaseback Space (if
the proposed transaction is a sublease of part of the Demised Premises for a
term expiring within the last year of the term of this lease). Landlord's Option
may be exercised by Landlord by notice to Tenant at any time within twenty (20)
days after such notice has been given by Tenant to Landlord; and during such
twenty (20) day period Tenant shall not assign this lease nor sublet such space
to any person.
9.03 If Landlord exercises Landlord's Option to terminate this lease in
the case where Tenant desires either to assign this lease or sublet all or
substantially all of the Demised
18
<PAGE>
Premises, then, this lease shall end and expire on the date that such assignment
or sublet was to be effective or commence, as the case may be, and the fixed
rent and additional rent shall be paid and apportioned to such date.
9.04 If Landlord exercises Landlord's Option to terminate this lease in
part in any case where Tenant desires to sublet part of the Demised Premises,
then, (a) this lease shall end and expire with respect to such part of the
Demised Premises on the date that the proposed sublease was to commence; (b)
from and after such date the fixed rent and additional rent shall be adjusted,
based upon the proportion that the rentable area of the Demised Premises
remaining bears to the total rentable area of the Demised Premises; and (c)
Landlord shall physically separate such part of the Demised Premises from the
balance of the Demised Premises and shall comply with any laws and requirements
of any public authorities relating to such separation.
9.05 If Landlord exercises Landlord's Option to sublet the Leaseback
Space, such sublease to Landlord or its designee (as subtenant) shall be at the
lower of (i) the rental rate per rentable square foot of fixed rent and
additional rent then payable pursuant to this lease or (ii) the rentals set
forth in the proposed sublease, and shall be for the same term as that of the
proposed subletting, and such sublease shall:
(a) be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this lease except such as are
irrelevant or inapplicable, and except as otherwise expressly set forth to the
contrary in this Section;
(b) be upon the same terms and conditions as those
contained in the proposed sublease, except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary in this
Section;
(c) give the sublessee the unqualified and
unrestricted right, without Tenant's permission, to assign such sublease or any
interest therein and/or to sublet the Leaseback Space or any part or parts of
the Leaseback Space and to make any and all changes, alterations, and
improvements in the space covered by such sublease provided such changes,
alterations and improvements are of an "office-type" nature and if the proposed
sublease will result in all or substantially all of the Demised Premises being
sublet, grant Landlord or its designee the option to extend the term of such
sublease for the balance of the term of this lease less one (1) day;
(d) provide that any assignee or further subtenant,
of Landlord or its designee, may, at the election of Landlord, be permitted to
make alterations, decorations and installations in the Leaseback Space or any
part thereof of an "office-type" nature and shall also provide in substance that
any such alterations, decorations and installations in the Leaseback Space
therein made by any assignee or subtenant of Landlord or its designee may be
removed, in whole or in part, by such assignee or subtenant, at its option,
prior to or upon the expiration or other termination of such sublease provided
that such assignee or subtenant, at its expense, shall repair any damage and
injury to that portion of the Leaseback Space so sublet
19
<PAGE>
caused by such removal and further provided that Tenant shall have no obligation
to remove such alterations, decorations and installations or otherwise restore
the Leaseback Space at the expiration or sooner termination of this lease; and
(e) also provide that (i) the parties to such
sublease expressly negate any intention that any estate created under such
sublease be merged with any other estate held by either of said parties, (ii)
any assignment or subletting by Landlord or its designee (as the subtenant) may
be for any purpose or purposes that Landlord, in Landlord's reasonable
discretion, shall deem suitable or appropriate, (iii) provided the proposed
third-party sublease requires Tenant to perform such work, Tenant, at Tenant's
expense, shall and will at all times provide and permit reasonably appropriate
means of ingress to and egress from the Leaseback Space so sublet by Tenant to
Landlord or its designee; otherwise same shall be at Landlord's expense, (iv)
Landlord, at it's sole cost and expense, shall make such alterations as may be
required or deemed necessary by Landlord to physically separate the Leaseback
Space from the balance of the Demised Premises and shall comply with any laws
and requirements of public authorities relating to such separation, and (v) that
at the expiration of the term of such sublease, Tenant will accept the space
covered by such sublease in its then existing condition, subject to the
obligations of the sublessee to make such repairs thereto as may be necessary to
preserve the premises demised by such sublease in good order and condition.
9.06
(a) If Landlord exercises Landlord's Option to sublet
the Leaseback Space, Landlord shall indemnify and save Tenant harmless from all
obligations under this lease as to the Leaseback Space during the period of time
it is so sublet to Landlord;
(b) Performance by Landlord, or its designee, under a
sublease of the Leaseback Space shall be deemed performance by Tenant of any
similar obligation under this lease and any default under any such sublease
shall not give rise to a default under a similar obligation contained in this
Lease, nor shall Tenant be liable for any default under this lease or deemed to
be in default hereunder if such default is occasioned by or arises from any act
or omission of the tenant under such sublease or is occasioned by or arises from
any act or omission of any occupant holding under or pursuant to any such
sublease;
(c) Tenant shall have no obligation, at the
expiration or earlier termination of the term of this lease, to remove any
alteration, installation or improvement made in the Leaseback Space by Landlord
or its designee.
9.07 In the event Landlord does not exercise Landlord's Option pursuant
to Section 9.02 and providing that Tenant is not in default of any of Tenant's
obligations under this lease after notice and the expiration of any applicable
grace period, Landlord's consent (which must be in writing and in form
reasonably satisfactory to Landlord) to the proposed assignment or sublease
shall not be unreasonably withheld and shall be given or denied within the
twenty (20) day period set forth in Section 9.02 (it being agreed that in the
event that Landlord fails to
20
<PAGE>
respond to Tenant within such twenty (20) day period, Tenant shall send to
Landlord a notice (hereinafter referred to as the "Second Notice") which shall
state that unless Landlord either grants or denies its consent to the proposed
assignment or subletting within ten (10) days after receipt of the Second
Notice, Landlord's consent to such assignment or subletting shall be deemed
granted, and, in the event Landlord fails to respond to such Second Notice
within five (5) days of receipt thereof, Landlord will be deemed to have
consented to such assignment or subletting), provided and upon condition that:
(a) Tenant shall have complied with the provisions of
Section 9.02 and Landlord shall not have exercised Landlord's Option under said
Section 9.02 within the time permitted therefor;
(b) In Landlord's reasonable judgment the proposed
assignee or subtenant is engaged in a business and the Demised Premises, or the
relevant part thereof, will be used in a manner which (i) is in keeping with the
then standards of the Building, (ii) is limited to the uses permitted hereunder
and (iii) will not violate any negative covenant as to use contained in any
other lease of space in the Building of which Tenant has received prior notice;
(c) The proposed assignee or subtenant is a reputable
person of good character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable proof
thereof;
(d) Provided Landlord then has space in the Building
of comparable size and for at least a comparable term available, neither (i) the
proposed assignee or sublessee nor (ii) any person which, directly or
indirectly, controls, is controlled by, or is under common control with, the
proposed assignee or sublessee or any person who controls the proposed assignee
or sublessee, is then an occupant of any part of the Building;
(e) Provided Landlord then has space in the Building
of comparable size and for a comparable term available, the proposed assignee or
sublessee is not a person with whom Landlord is then actively negotiating to
lease space in the Building;
(f) The form of the proposed sublease shall comply
with the applicable provisions of this Article;
(g) There shall not be more than three (3) separate
entities or persons not affiliated with Tenant in the Demised Premises;
(h) The rental and other terms and conditions of the
executed sublease are substantially the same in all material respects as those
contained in the proposed term sheet furnished to Landlord pursuant to Section
9.02;
21
<PAGE>
(i) Tenant shall reimburse Landlord on demand for any
reasonable out-of-pocket costs that may be incurred by Landlord in connection
with said assignment or sublease, including, without limitation, the reasonable
costs of making investigations as to the acceptability of the proposed assignee
or subtenant and reasonable legal costs incurred in connection with the review
of any term sheet, proposed assignment or sublease or any documentation in
connection therewith and in the preparation of any documentation in connection
with any request for consent, whether or not granted;
(j) Tenant shall not have (i) advertised (but it may
list, upon notice to Landlord) the availability of the Demised Premises without
prior notice to and approval by Landlord which approval shall not be
unreasonably withheld or delayed, nor shall any advertisement state the proposed
rental, (ii) advertised (but it may list) the Demised Premises for subletting or
assignment, at a rental rate less than the fixed rent and additional rent at
which Landlord is then offering to lease other comparable space in the Building;
and
(k) The sublease shall not allow the use of the
Demised Premises or any part thereof for (i) the preparation and/or sale of food
for on or off premises consumption except as otherwise expressly permitted by
this lease or (ii) use by a foreign or domestic government or governmental
agency.
Except for any subletting by Tenant to Landlord or its designee pursuant to the
provisions of this Article, each subletting pursuant to this Article shall be
subject to all of the covenants, agreements, terms, provisions and conditions
contained in this lease. Notwithstanding any such subletting to Landlord or any
such subletting to any other subtenant and/or acceptance of rent or additional
rent by Landlord from any subtenant, Tenant shall and will remain fully liable
for the payment of the fixed rent and additional rent due and to become due
hereunder and for the performance of all the covenants, agreements, terms,
provisions and conditions contained in this lease on the part of Tenant to be
performed and all acts and omissions of any licensee or subtenant or anyone
claiming under or through any subtenant which shall be in violation of any of
the obligations of this lease, and any such violation shall be deemed to be a
violation by Tenant. Tenant further agrees that notwithstanding any such
subletting, no other and further subletting of the Demised Premises by Tenant or
any person claiming through or under Tenant (except as provided in Section 9.05)
shall or will be made except upon compliance with and subject to the provisions
of this Article. If Landlord shall decline to give its consent to any proposed
assignment or sublease, or if Landlord shall exercise Landlord's Option. Tenant
shall indemnify, defend and hold harmless Landlord against and from any and all
loss, liability, damages, costs and expenses (including reasonable counsel fees)
resulting from any claims that may be made against Landlord by the proposed
assignee or sublessee or by any brokers or other persons claiming a commission
or similar compensation in connection with the assignment or sublease proposed
by Tenant.
9.08 In the event that (a) Landlord fails to exercise
Landlord's Option and consents to a proposed assignment or sublease, and (b)
Tenant fails to execute and deliver the assignment or sublease to which Landlord
consented within 90 days after the giving of such
22
<PAGE>
consent, then, Tenant shall again comply with all of the provisions and
conditions of Section 9.02 before assigning this lease or subletting all or part
of the Demised Premises.
9.09 With respect to each and every sublease or subletting authorized
by Landlord under the provisions of this lease, it is further agreed:
(a) no subletting shall be for a term ending later
than one day prior to the expiration date of this lease;
(b) no sublease shall be valid, and no subtenant
shall take possession of the Demised Premises or any part thereof, until an
executed counterpart of such sublease has been delivered to Landlord;
(c) each sublease shall provide that it is subject
and subordinate to this lease and to the matters to which this lease is or shall
be subordinate, and that in the event of termination, re-entry or dispossess by
Landlord under this lease Landlord may, at its option, take over all of the
right, title and interest of Tenant, as sublessor, under such sublease, and such
subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then
executory provisions of such sublease, except that Landlord shall not (i) be
liable for any previous act or omission of Tenant under such sublease, (ii) be
subject to any offset, not expressly provided in such sublease, which
theretofore accrued to such subtenant against Tenant, or (iii) be bound by any
previous modification of such sublease or by any previous prepayment of more
than one month's rent.
9.10 If Landlord shall give its consent to any assignment of this lease
or to any sublease, Tenant shall in consideration therefor, pay to Landlord, as
additional rent:
(a) in the case of an assignment, an amount equal to
50% of all sums and other considerations paid to Tenant by the assignee for or
by reason of such assignment (including, but not limited to, sums paid for the
sale of Tenant's fixtures, leasehold improvements, equipment, furniture,
furnishings or other personal property, less, in the case of a sale thereof, the
then fair market value thereof) and less the reasonable costs (hereinafter
referred to as the "Assignment Expenses") paid by Tenant for alteration costs
(or contributions in lieu thereof), advertising, brokerage or consulting fees or
commissions and legal fees in connection with such assignment; and
(b) in the case of a sublease, an amount equal to 50%
of any rents, additional charge or other consideration payable under the
sublease to Tenant by the subtenant which is in excess of the fixed rent and
additional rent accruing during the term of the sublease in respect of the
subleased space (at the rate per square foot payable by Tenant hereunder)
pursuant to the terms hereof (including, but not limited to, sums paid for the
sale or rental of Tenant's fixtures, leasehold improvements, equipment,
furniture or other personal property, less, in the case of the sale thereof, the
then fair market value thereof) and less the reasonable costs (hereinafter
referred to as the "Subletting Expenses") paid by Tenant for
23
<PAGE>
alteration costs (or contributions in lieu thereof), advertising, brokerage or
consulting fees or commissions and legal fees in connection with such
subletting. The sums payable under Sections 9.10(a) and (b) shall be paid to
Landlord as and when paid by the assignee or subtenant, as the case may be, to
Tenant and upon the execution and delivery of such assignment or sublease, as
the case may be, Tenant shall provide to Landlord a statement of the Assignment
Expenses or Subletting Expenses, as the case may be, certified as correct by an
officer or principal of Tenant. In the event of any dispute with respect to the
Assignment Expenses or the Subletting Expenses, such dispute shall be determined
by arbitration in accordance with the provisions of Article 34 hereof.
9.11
(a) If Tenant is a corporation other than a
corporation whose stock is listed and traded on a nationally or internationally
recognized stock exchange, the provisions of 9.01 shall apply to a transfer
(however accomplished, whether in a single transaction or in a series of related
or unrelated transactions) of stock (or any other mechanism such as, by way of
example, the issuance of additional stock, a stock voting agreement or change in
class(es) of stock) which results in a change of control of Tenant but only
where the principal purpose of which is a transfer of this lease as if such
transfer of stock (or other mechanism) which results in a change of control of
Tenant were an assignment of this lease, and if Tenant is a partnership or joint
venture or other entity, said provisions shall apply with respect to a transfer
(by one or more transfers) of an equity interest in such partnership or joint
venture or other entity (or other mechanism, such as, by way of example, the
creation of additional general partnership or limited partnership interests or
other interest) which results in a change of control of such partnership or
joint venture or other entity but only where the principal purpose of which is a
transfer of this lease, as if such transfer of an equity interest in such
partnership or joint venture or other entity which results in a change of
control of such partnership or joint venture or other entity were an assignment
of this lease.
(b) Notwithstanding anything in this lease to the
contrary, the provisions of the first sentence of Section 9.01, Landlord's
Option, Section 9.07(a)-(f), (h) and (j), Section 9.08 and 9.10 hereof shall not
apply to transactions entered into by Tenant with (i) a corporation into or with
which Tenant is merged or consolidated or with an entity to which all or
substantially all of Tenant's assets are transferred, provided (x) such merger,
consolidation or transfer of assets is for a valid business purpose and not
principally for the purpose of transferring the leasehold estate created hereby,
and (y) the assignee or successor entity has a net worth (determined in
accordance with generally accepted accounting principles consistently applied)
at least equal to or in excess of the net worth of Tenant immediately prior to
such merger, consolidation or transfer and Landlord has been provided with
reasonable proof thereof prior to such transaction or (ii) any entity which is
controlled by, under common control with or which controls Tenant (for purposes
hereof the term "control" shall have the meaning ascribed to it in Exhibit E) or
(iii) with respect to the occupancy of not more than 2,000 rentable square feet
of space in the Demised Premises by Castle Rock Partners, an entity of which
Tenant is a limited
24
<PAGE>
*9.15 Notwithstanding anything in this Article 9 to the
contrary, Landlord's Option (as defined in Section 9.02) shall not
apply to the initial subletting by Tenant of up to 4,600 rentable
square feet of space for a term not to exceed seven (7 ) years and not
to expire within the last three (3) years of the term of this lease,
provided that such subletting shall otherwise be pursuant to, and in
accordance, with all other applicable provisions in this lease,
including, without limitation, this Article 9.
partner, provided such space is not separately demised from the Demised Premises
or provided with a separate entrance.
9.12 Any assignment or transfer, whether made with Landlord's consent
pursuant to Section 9.01 or without Landlord's consent pursuant to Section 9.11,
shall be made only if, and shall not be effective until, the assignee shall
execute, acknowledge and deliver to Landlord an agreement in form and substance
reasonably satisfactory to Landlord whereby the assignee shall assume the
obligations of this lease on the part of Tenant to be performed or observed from
and after the date of said assignment or transfer and whereby the assignee shall
agree that the provisions in Section 9.01 shall, notwithstanding such assignment
or transfer, continue to be binding upon it in respect of all future assignments
and transfers. The original named Tenant covenants that, notwithstanding any
assignment or transfer, whether or not in violation of the provisions of this
lease, and notwithstanding the acceptance of fixed rent and/or additional rent
by Landlord from an assignee, transferee, or any other party, the originally
named Tenant shall remain fully liable for the payment of the fixed rent and
additional rent and for the other obligations of this lease on the part of
Tenant to be performed or observed; if this lease be modified after any such
assignment so as to increase Tenant's obligations, then the originally named
Tenant, unless it consented to such modification, shall be liable only for the
obligations under this lease as same existed prior to such modifications.
9.13 The joint and several liability of Tenant and any immediate or
remote successor in interest of Tenant and the due performance of the
obligations of this lease on Tenant's part to be performed or observed shall not
be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this lease, subject to the last sentence of Section
9.12.
9.14 The listing of any name other than that of Tenant, whether on the
doors of the Demised Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this lease or in the Demised Premises,
nor shall it be deemed to be the consent of Landlord to any assignment or
transfer of this lease or to any sublease of the Demised Premises or to the use
or occupancy thereof by others.
*
ARTICLE 10
Compliance With Laws And Requirements
Of
Public Authorities
10.01
(a) Tenant shall give prompt notice to Landlord of
any notice it receives of the violation of any law or requirement of public
authority, and Tenant, at its expense, shall comply with all laws and
requirements of public authorities which shall, with respect to the Demised
Premises or the use and occupation thereof, or the abatement of any
25
<PAGE>
nuisance, impose any violation, order or duty on Landlord or Tenant, arising
from (i) Tenant's particular manner of use of the Demised Premises, as
distinguished from mere use of the Demised Premises for general and executive
offices, (ii) the manner of conduct of Tenant's business or operation of its
installations, equipment or other property therein, (iii) any cause or condition
created by or at the instance of Tenant, other than by Landlord's performance of
any work for or on behalf of Tenant, or (iv) breach of any of Tenant's
obligations hereunder. However, Tenant shall not be so required to make any
structural or other substantial change in the Demised Premises unless the
requirement arises from a cause or condition referred to in clause (ii), (iii)
or (iv) above. Furthermore, Tenant need not comply with any such law or
requirement of public authority so long as Tenant shall be contesting the
validity thereof, or the applicability thereof to the Demised Premises, in
accordance with Section 10.02. Landlord, at its expense, shall comply with all
other such laws and requirements of public authorities as shall affect the
Demised Premises, but may similarly contest the same subject to conditions
reciprocal to Subsections (a), (b) and (d) of Section 10.02.
(b) If, at any time during the term of this lease,
asbestos or asbestos-containing material is found to exist in any portion of the
Demised Premises (other than in enclosed vertical columns running through the
Demised Premises), Landlord, at its own expense, will cause it to be removed,
encapsulated or otherwise treated in accordance with applicable laws and
regulations. If Landlord causes any such work to be performed, Landlord, at its
expense shall timely and with minimum inconvenience to Tenant, repair and
restore any damage thereby caused.
10.02 Tenant may, at its expense (and if necessary, in the name of but
without expense to Landlord) contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any law or requirement of public authority, and Landlord shall
cooperate with Tenant in such proceedings, provided that:
(a) Landlord shall not be subject to criminal penalty
or to prosecution for a crime nor shall the Demised Premises or any part thereof
be subject to being condemned or vacated, by reason of non-compliance or
otherwise by reason of such contest;
(b) Tenant shall defend, indemnify and hold harmless
Landlord against all liability, loss or damage which Landlord shall suffer by
reason of such non-compliance or contest, including reasonable attorney's fees
and other expenses reasonably incurred by Landlord;
(c) such non-compliance or contest shall not
constitute or result in any violation of any superior lease or superior
mortgage, or if such superior lease and/or superior mortgage shall permit such
non-compliance or contest on condition of the taking of action or furnishing of
security by Landlord, such action shall be taken and such security shall be
furnished at the expense of Tenant; and
26
<PAGE>
(d) Tenant shall keep Landlord advised as to the
status of such proceedings.
Without limiting the application of Subsection (a) above thereto, Landlord shall
be deemed subject to prosecution for a crime within the meaning of said
Subsection, if Landlord, or any officer of Landlord individually, is charged
with a crime of any kind or degree whatever, whether by service of a summons or
otherwise, unless such charge is withdrawn before Landlord or such officer (as
the case may be) is required to plead or answer thereto.
10.03 Tenant shall not knowingly cause or permit "Hazardous Materials"
(as defined below) to be used, transported, stored, released, handled, produced
or installed in, on or from, the Demised Premises or the Building. The term
"Hazardous Materials" shall, for the purposes hereof, mean any flammable
explosives, radioactive materials, hazardous wastes, hazardous and toxic
substances, or related materials, asbestos or any material containing asbestos,
or any other substance or material, as defined by any federal, state or local
environmental law, ordinance, rule or regulation including, without limitation,
the Comprehensive Environmental Response Compensation and Liability Act of 1980,
as amended, the Hazardous Materials Transportation Act, as amended, the Resource
Conservation and Recovery Act, as amended, and in the regulations adopted and
publications promulgated pursuant to each of the foregoing. The parties agree
that nothing contained in this Section 10.03 shall prohibit, and Landlord
herewith consents to, Tenant's use and maintenance in the Demised Premises of
limited quantities of substances reasonably necessary in the ordinary operation
and maintenance of office equipment, provided such substances are used,
transported, stored, released, handled, and maintained within the Demised
Premises in accordance with all applicable laws and regulations. In the event of
a breach of the provisions of this Section 10.03, Landlord shall, in addition to
all of its rights and remedies under this lease and pursuant to law, require
Tenant to remove any such Hazardous Materials from the Demised Premises in the
manner prescribed for such removal by the applicable law, ordinance, rule or
regulation. The provisions of this Section 10.03 shall survive the termination
of this lease. Landlord hereby agrees that it will not install Hazardous
Materials in the public areas of the Building and that it will promptly remove
or cause the removal of any Hazardous Materials from the Demised Premises and
the Building as required by applicable law except with respect to (a) Hazardous
Materials required to be removed by Tenant pursuant to this Section 10.03 and
(b) Hazardous Materials which would not be required, by applicable laws, to be
removed but for (i) any Tenant's Work or Tenant's Changes (as defined in Article
13), or (ii) any action of Tenant or any of Tenant's agents, employees or
contractors. Any such removal by Landlord will be accomplished in such a manner
so as to minimize interference with Tenant's use and occupancy of the Demised
Premises.
ARTICLE 11
Insurance
11.01 Tenant shall not violate, or permit the violation of, any
condition imposed by the standard fire insurance policy then issued for office
buildings in the Borough of
27
<PAGE>
Manhattan, City of New York, and shall not do, or permit anything to be done, or
keep or permit anything to be kept in the Demised Premises which would subject
Landlord to any liability or responsibility for personal injury or death or
property damage, or which would increase the fire or other casualty insurance
rate on the Building or the property therein over the rate which would otherwise
then be in effect (unless Tenant pays the resulting premium as provided in
Section 11.04) or which would result in insurance companies of good standing
refusing to insure the Building or any of such property in amounts reasonably
satisfactory to Landlord. Nothing in this Section 11.01 shall be deemed to
subject Tenant to any liability or obligations set forth herein by reason of the
use by Tenant of the Demised Premises for the specific purposes set forth in
Section 2.01.
11.02 Tenant covenants to provide on or before the Commencement Date
and to keep in force during the term hereof the following insurance coverage
which coverage shall be effective on the Commencement Date:
(a) A comprehensive policy of liability insurance
containing an omnibus named insured provision naming Landlord as an additional
insured protecting Landlord and Tenant against any liability whatsoever
occasioned by accident on or about the Demised Premises or any appurtenances
thereto. Such policy shall have limits of liability of not less than Five
Million ($5,000,000.00) Dollars combined single limit coverage on a per
occurrence basis, including property damage. Such policy shall contain a
contractual liability coverage endorsement with respect to Tenant's
indemnification obligations under this lease. Such insurance may be carried
under a blanket policy covering the Demised Premises and other locations of
Tenant, if any, provided such policy contains an endorsement (i) naming Landlord
as an additional insured, (ii) specifically referencing the Demised Premises;
and (iii) guaranteeing a minimum limit available for the Demised Premises equal
to the limits of liability required under this lease; Additionally, such
insurance may be comprised of both primary (not less than One Million
($1,000,000.00) Dollars) and umbrella coverage and may provide for deductibles
of not more than $25,000.00.
(b) Fire and Extended coverage in an amount adequate
to cover the cost of replacement of all personal property, fixtures, furnishing
and equipment, including Tenant's Work located in the Demised Premises or with
an agreed amount endorsement providing for full replacement. The provisions of
the last sentence of Section 11.02(a) (except for (i) shall apply with respect
to such fire and extended coverage.
All such policies shall be issued by companies of recognized responsibility
licensed to do business in New York State and rated by Best's Insurance Reports
or any successor publication of comparable standing and carrying a rating of A
VIII or better or the then equivalent of such rating, and all such policies
shall contain a provision whereby the same cannot be cancelled or modified
unless Landlord and any additional insureds are given at least thirty (30) days
prior written notice of such cancellation or modification.
28
<PAGE>
Prior to the time such insurance is first required to be carried by
Tenant and thereafter, at least ten (10) days prior to the expiration of any
such policies, Tenant shall deliver to Landlord certificates evidencing such
insurance including a copy of the endorsement naming Landlord as an additional
insured, together with evidence of payment for the policy. If Tenant delivers
certificates as aforesaid, Tenant upon reasonable prior notice from Landlord,
shall make available to Landlord, at the Demised Premises, duplicate originals
of such policies from which Landlord may make copies thereof, at Landlord's
cost. Tenant's failure to provide and keep in force the aforementioned insurance
shall be regarded as a material default hereunder, entitling Landlord to
exercise any or all of the remedies as provided in this lease in the event of
Tenant's default. In addition in the event Tenant fails to provide and keep in
force the insurance required by this lease, at the times and for the durations
specified in this lease, Landlord shall have the right, but not the obligation,
at any time and from time to time, upon notice to Tenant and the expiration of
three (3) days after the receipt by Tenant of such notice, to procure such
insurance and or pay the premiums for such insurance in which event Tenant shall
repay Landlord within ten (10) days after demand by Landlord, as additional
rent, all sums so paid by Landlord and any costs or expenses incurred by
Landlord in connection therewith without prejudice to any other rights and
remedies of Landlord under this lease.
11.03 Landlord and Tenant shall each endeavor to secure an appropriate
clause in, or an endorsement upon, each fire or extended coverage policy
obtained by it and covering the Building, the Demised Premises or the personal
property, fixtures and equipment located therein or thereon, pursuant to which
the respective insurance companies waive subrogation or permit the insured,
prior to any loss, to agree with a third party to waive any claim it might have
against said third party. The waiver of subrogation or permission for waiver of
any claim hereinbefore referred to shall extend to the agents of each party and
its employees and, in the case of Tenant, shall also extend to all other persons
and entities occupying or using the Demised Premises in accordance with the
terms of this lease. If and to the extent that such waiver or permission can be
obtained only upon payment of an additional charge then, except as provided in
the following two paragraphs, the party benefiting from the waiver or permission
shall pay such charge upon demand, or shall be deemed to have agreed that the
party obtaining the insurance coverage in question shall be free of any further
obligations under the provisions hereof relating to such waiver or permission.
In the event that Landlord shall be unable at any time to obtain one of
the provisions referred to above in any of its insurance policies, Landlord
shall cause Tenant to be named in such policy or policies as one of the
assureds, but if any additional premium shall be imposed for the inclusion of
Tenant as such as assured, Tenant shall pay such additional premium upon demand
or Landlord shall be excused from its obligations under this paragraph with
respect to the insurance policy or policies for which such additional premiums
would be imposed. In the event that Tenant shall have been named as one of the
assureds in any of Landlord's policies in accordance with the foregoing, Tenant
shall endorse promptly to the order of Landlord, without recourse, any check,
draft or order for the payment of money representing the proceeds of any
29
<PAGE>
such policy or any other payment growing out of or connected with said policy
and Tenant hereby irrevocably waives any and all rights in and to such proceeds
and payments.
In the event that Tenant shall be unable at any time to obtain one of
the provisions referred to above in any of its insurance policies, Tenant shall
cause Landlord to be named in such policy or policies as one of the assureds,
but if any additional premium shall be imposed for the inclusion of Landlord as
such an assured, Landlord shall pay such additional premium upon demand or
Tenant shall be excused from its obligations under this paragraph with respect
to the insurance policy or policies for which such additional premiums would be
imposed. In the event that Landlord shall have been named as one of the assureds
in any of Tenant's policies in accordance with the foregoing, Landlord shall
endorse promptly to the order of Tenant, without recourse, any check, draft or
order for the payment of money representing the proceeds of any such policy or
any other payment growing out of or connected with said policy and Landlord
hereby irrevocably waives any and all rights in and to such proceeds and
payments.
Subject to the foregoing provisions of this Section 11.03, and insofar
as may be permitted by the terms of the insurance policies carried by it, each
party hereby releases the other with respect to any claim (including a claim for
negligence) which it might otherwise have against the other party for loss,
damages or destruction with respect to its property by fire or other casualty
(including rental value or business interruption, as the case may be) occurring
during the term of this lease.
11.04 If, by reason of a failure of Tenant to comply with the
provisions of Section 10.01 or Section 11.01, the rate of fire insurance with
extended coverage on the Building or equipment or other property of Landlord
shall be higher than would otherwise be applicable for use of the Demised
Premises for the uses permitted in Section 2.01, Tenant shall reimburse
Landlord, on demand, for that part of the premiums for fire insurance and
extended coverage paid by Landlord because of such failure on the part of
Tenant.
11.05 Landlord may, from time to time, require that the amount of the
insurance to be provided and maintained by Tenant under Section 11.02 hereof be
increased so that the amount thereof adequately protects Landlord's interest but
in no event in excess of the amount that would be required by other office
tenants occupying similarly sized space in first-class office buildings in the
borough of Manhattan.
11.06 If any dispute shall arise between Landlord and Tenant with
respect to the incurrence or amount of any additional insurance premium referred
to in Section 11.04 or the increase in amount of insurance referred to in
Section 11.05, the dispute shall be determined by arbitration in accordance with
the provisions of Article 34, but Tenant shall not be required to pay such
amount or increase any insurance until the arbitration is conducted and then
only in accordance with the determination reached in such arbitration.
11.07 A schedule or make up of rates for the Building or the Demised
Premises, as the case may be, issued by the New York Fire Insurance Rating
Organization or other similar
30
<PAGE>
body making rates for fire insurance and extended coverage for the premises
concerned, shall be conclusive evidence of the facts therein stated and of the
several items and charges in the fire insurance rate with extended coverage then
applicable to such premises.
11.08 Each policy evidencing the insurance to be carried by Tenant
under this lease shall contain a clause that such policy and the coverage
evidenced thereby shall be primary with respect to any policies carried by
Landlord, and that any coverage carried by Landlord shall be excess insurance.
11.09 Landlord shall from and after the date of this lease through the
last day of the term hereof, procure and maintain (or cause to be procured or
maintained) fire and extended coverage insurance, in good and solvent insurance
companies authorized to do business in the State of New York, on the Building
(exclusive of foundations and footings) in an amount equal to the full
replacement value thereof. Such insurance may be carried under a blanket policy
covering the Building and any other buildings or other properties of Landlord,
provided that the required amount of coverage is expressly reserved and
allocated to the Building, and may contain commercially reasonable deductibles.
Notwithstanding anything contained in this Section 11.09 to the contrary, if at
any time an "institutional lender" (as such term is hereinafter defined) shall
succeed to the rights of Landlord under this lease whether through sale,
exchange, lease, possession, foreclosure action, deed in lieu thereof, or
otherwise, the obligations of Landlord set forth in this Section 11.09 shall not
apply to such institutional lender. For the purposes of this Section 11.09, an
"institutional lender" shall mean any bank, savings and loan association, trust
company, insurance company, pension fund or similar institutional lender, which
in the ordinary course of its business, owns or operates first-class office
buildings and, in connection with such ownership or operation, is self-insured
with respect to fire and extended coverage and which has a "Standard & Poor's"
or "Moody's" (or any successor rating service or substitute rating service (if
either of the "Standard & Poor's" and "Moody's" services are not then
available)) "claims paying ability rating" or "debt rating" of AA or Aa (or
better) or a "Best's Insurance" (or any successor rating service or substitute
rating service, if "Best's insurance" is not then available) rating of A (or
better). If the rating scales of any of such rating services (or their
successors or substitutes) are changed, then the required rating shall be that
rating which is most nearly comparable to the current rating of "AA" (for
Standard & Poor's), "Aa" (for Moody's) or "A" (for Best's Insurance).
ARTICLE 12
Rules And Regulations
12.01 Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations annexed hereto as Exhibit D, and such
reasonable changes therein (whether by modification, elimination or addition) as
Landlord at any time or times hereafter may make and communicate in writing to
Tenant, which do not unreasonably affect the conduct of Tenant's business in the
Demised Premises except as required by any governmental law, rule, regulation,
ordinance or similar decree provided, however, that in case of any conflict
31
<PAGE>
or inconsistency between the provisions of this lease and any Rule or
Regulation, the provisions of this lease shall control.
12.02 Nothing in this lease contained shall be construed to impose upon
Landlord any duty or obligation to Tenant to enforce the Rules and Regulations
or the terms, covenants or conditions in any other lease, as against any other
tenant, and Landlord shall not be liable to Tenant for violation of the same by
any other tenant or its employees, agents or visitors. However, Landlord shall
not promulgate or enforce any of the Rules and Regulations in such manner as to
discriminate against Tenant or anyone claiming under or through Tenant. In the
event another tenant or occupant of the Building violates any of the Rules and
Regulations, and such violation materially and adversely interferes with
Tenant's use and occupancy of the Demised Premises, Landlord will use reasonable
efforts to secure such other tenant's or occupant's compliance therewith.
ARTICLE 13
Tenant's Changes
13.01 Tenant may from time to time during the term of this lease, at
its expense, make such other alterations, additions, installations,
substitutions, improvements and decorations (hereinafter collectively referred
to as "changes" and, as applied to changes provided for in this Article,
"Tenant's Changes") in and to the Demised Premises, excluding structural
changes, as Tenant may reasonably consider necessary for the conduct of its
business in the Demised Premises, on the following conditions:
(a) the outside appearance or the strength of the
Building or of any of its structural parts shall not be affected;
(b) except as otherwise expressly provided in this
lease, no part of the Building outside of the Demised Premises shall be
physically affected;
(c) the proper functioning of any of the mechanical,
electrical, sanitary and other service systems of the Building shall not be
adversely affected or the usage of such systems by Tenant shall not be increased
above the allocations set forth in this lease;
(d) in performing the work involved in making such
changes, Tenant shall be bound by and observe all of the conditions and
covenants contained in the following Sections of this Article;
(e) before proceeding with any Tenant's Changes,
Tenant will advise Landlord thereof and shall submit to Landlord proof
reasonably satisfactory of the cost thereof and shall submit the names of the
contractors or subcontractors who will be performing Tenant's Changes for
Landlord's approval, which approval shall not be unreasonably withheld or
delayed. Additionally, before proceeding with any Tenant's Changes (i) for which
32
<PAGE>
plans and specifications must be submitted to any governmental agency; or (ii)
any change to the electrical, sanitary, plumbing or any other Building system,
or (iii) which involves any structural change, Tenant shall submit to Landlord
plans and specifications and all changes and revisions thereto, for the work to
be done for Landlord's approval, which approval, with respect to the plans and
specifications for the work set forth in subdivision (i) above, shall not be
unreasonably withheld or delayed. Any objections by Landlord to such plans and
specifications must be in reasonably specific detail. In the event that Landlord
fails to respond to Tenant within fifteen (15) business days of Tenant's
submission of such plans and specifications, Tenant shall send to Landlord a
notice (hereinafter referred to as the "Second Notice") which shall state that
unless Landlord responds to the submission of such plans and specifications
within ten (10) days after receipt of the Second Notice, Landlord's approval of
the work set forth in the plans and specifications shall be deemed granted, and,
in the event Landlord fails to respond to such Second Notice within ten (10)
days of receipt thereof, Landlord will be deemed to have consented to the work
set forth in the plans and specifications. Tenant shall, within fifteen (15)
days of demand by Landlord, pay to Landlord the reasonable out-of-pocket costs
incurred by Landlord for the review of such plans and specifications and all
changes and revisions thereto by any third-party architect, engineer and other
consultants. With respect to any other changes to be performed by Tenant, Tenant
shall submit plans and specifications for information purposes only prior to
proceeding with such changes. Tenant agrees that any review or approval by
Landlord of any plans and specifications is solely for Landlord's benefit, and
without any representation or warranty whatsoever to Tenant with respect to the
adequacy, correctness or efficiency thereof or otherwise. The granting by
Landlord of its approval to such plans and specifications shall in no manner
constitute or be deemed to constitute a judgment or acknowledgment by Landlord
as to their legality or compliance with laws and/or requirements of public
authorities. Landlord may as a condition of its approval require Tenant to make
revisions in and to the plans and specifications and, with respect to any change
(other than Tenant's Work as defined in Article 4) the estimated cost of which
equals or exceeds $250,000.00 as certified by Tenant's licensed architect in
writing to Landlord delivered prior to the commencement of such change, require
Tenant to post a bond or other security reasonably satisfactory to Landlord to
insure the completion of such change.
13.02 Tenant, at its expense, shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of Tenant's
Changes and for final approval thereof upon completion and shall furnish copies
thereof to Landlord, and shall cause Tenant's Changes to be performed in
compliance therewith and with all applicable laws and requirements of public
authorities, and with all applicable requirements of insurance bodies, and in
good and workmanlike manner, using first-class materials and equipment. Upon
Tenant's request and at Tenant's sole cost and expense, Landlord shall join in
the application for any licenses, permits, approvals and authorizations whenever
such action is necessary and shall otherwise reasonably cooperate with Tenant
provided, however, that in no event shall Landlord be obligated to join in any
application or otherwise permit a change in the certificate of occupancy for the
Building or the Demised Premises. Tenant's Changes shall be performed in such
manner as not to unreasonably interfere with or delay and (unless Tenant shall
indemnify Landlord therefor to the
33
<PAGE>
latter's reasonable satisfaction) as not to impose any additional expense upon,
Landlord in the maintenance or operation of the Building or any portion thereof.
Throughout the performance of Tenant's Changes, Tenant, at its expense, shall
carry, or cause to be carried, worker's compensation insurance in statutory
limits and general liability insurance for any occurrence in or about the
Building as set forth in Section 11.02 hereof, in which Landlord and its agents
shall be named as parties insured. Tenant shall furnish Landlord with
satisfactory evidence that such insurance is in effect at or before the
commencement of Tenant's Changes and, on request, at reasonable intervals
thereafter during the continuance of Tenant's Changes. If any of Tenant's
Changes shall involve the removal of any fixtures, equipment or other property
in the Demised Premises which are not Tenant's Property (as defined in Article
14), such fixtures, equipment or other property shall be promptly replaced, at
Tenant's expense, with new fixtures, equipment or other property (as the case
may be) of like utility and at least equal value unless Landlord shall otherwise
expressly consent in writing and Tenant shall, upon Landlord's request, return
same to Landlord. All electrical and plumbing work in connection with Tenant's
changes shall be performed by contractors or subcontractors licensed therefor by
all governmental agencies having or asserting jurisdiction. Upon the completion
of Tenant's Changes, Tenant shall furnish to Landlord a complete set of
"as-built" plans and specifications if prepared by or on behalf of Tenant and,
if not prepared, a complete set of approved plans and specifications modified to
show field and other changes and revisions thereto.
13.03 Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with Tenant's Changes which shall be issued by the
Department of Buildings or any other public or quasi-public authority having or
asserting jurisdiction. Tenant shall defend, indemnify and save harmless
Landlord against any and all mechanic's and other liens filed in connection with
Tenant's Changes, including the liens of any security interest in, conditional
sales of, or chattel mortgages upon, any materials, fixtures or articles so
installed in and constituting part of the Demised Premises and against all
costs, expense and liabilities incurred in connection with any such lien,
security interest, conditional sale or chattel mortgage or any action or
proceeding brought thereon. Tenant, at its expense, shall procure the
satisfaction or discharge of all such liens within twenty (20) days after
Landlord makes written demand therefor. However, nothing herein contained shall
prevent Tenant from contesting, in good faith and at its own expense, any such
notice of violation, provided that Tenant shall comply with the provisions of
Section 10.02. Notwithstanding anything herein to the contrary, Tenant shall
have the right to grant liens, security interests or chattel mortgages with
respect to "Tenant's Property" (as defined in Section 14.02) and the provisions
of the third (3rd) sentence of this Section 13.03 shall not apply with respect
thereto,.
13.04 Tenant agrees that the exercise of its rights pursuant to the
provisions of this Article 13 or any other provision of this lease shall not be
done in a manner which would create any work stoppage, picketing, labor
disruption or dispute or violate Landlord's union contracts affecting the Land
and/or Building nor interference with the business of Landlord or any Tenant or
occupant of the Building. In the event of the occurrence of any condition
34
<PAGE>
described above arising from the exercise by Tenant of its right pursuant to the
provisions of this Article 13 or any other provision of this lease, Tenant
shall, immediately upon notice from Landlord, cease the manner of exercise of
such right giving rise to such condition. The parties agree that in such
instance, Landlord will suffer irreparable harm for which money damages will be
an insufficient remedy. For that reason, in the event Tenant fails to cease such
manner of exercise of its rights as aforesaid, Landlord, in addition to any
rights otherwise available to it under this lease and pursuant to law and
equity, shall have the right to a court order granting an injunction against
Tenant's manner of exercise of its rights as aforesaid, application for such
injunction to be made without notice. With respect to Tenant's Changes, Tenant
shall make all arrangements for, and pay all expenses incurred in connection
with, use of the freight elevators servicing the Demised Premises. All
scheduling of the freight elevator shall be done on a nondiscriminatory basis.
ARTICLE 14
Tenant's Property
14.01 All fixtures, equipment, improvements and appurtenances attached
to or built into the Demised Premises at the commencement of or during the term
of this lease, whether or not by or at the expense of Tenant, shall be and
remain a part of the Demised Premises, shall be deemed the property of Landlord
and shall not be removed by Tenant, except as hereinafter in this Article
expressly provided.
14.02 All paneling, movable partitions, lighting fixtures, special
cabinet work, other business and trade fixtures, machinery and equipment, card
key readers, communications equipment and office equipment, whether or not
attached to or built into the Demised Premises, which are installed in the
Demised Premises by or for the account of Tenant, without expense to Landlord,
and can be removed without permanent structural damage to the Building, and all
furniture, furnishings and other articles of movable personal property owned by
Tenant and located in the Demised Premises, (all of which are sometimes referred
to as "Tenant's Property") shall be and shall remain the property of Tenant and
may be removed by it at any time during the term of this lease; provided that if
any of Tenant's Property is removed, Tenant or any party or person entitled to
remove same shall repair or pay the cost of repairing any damage to the Demised
Premises or to the Building resulting from such removal. Any equipment or other
property for which Landlord shall have granted any allowance or credit to Tenant
or which has replaced such items originally provided by Landlord at Landlord's
expense shall not be deemed to have been installed by or for the account of
Tenant, without expense to Landlord, and shall not be considered Tenant's
Property.
14.03 At or before the Expiration Date, or the date of any earlier
termination of this lease, or as promptly as practicable after such an earlier
termination date, Tenant at its expense, shall remove from the Demised Premises
all of Tenant's Property except such items thereof as Tenant shall have
expressly agreed in writing with Landlord were to remain and to become the
property of Landlord, and shall fully repair any damage to the Demised Premises
or
35
<PAGE>
the Building resulting from such removal. Tenant's obligation herein shall
survive the termination of the lease.
14.04 Any other items of Tenant's Property (except money, securities
and other like valuables) which shall remain in the Demised Premises after the
Expiration Date or after a period of fifteen (15) days following an earlier
termination date, may, at the option of Landlord, be deemed to have been
abandoned, and in such case either may be retained by Landlord as its property
or may be disposed of, without accountability, at Tenant's expense in such
manner as Landlord may see fit.
14.05
(a) For purposes of this lease, "Specialty
Installation(s)" shall mean installations consisting of vaults and slab
penetrations, if any, made by or at the direction of Tenant. Upon the Expiration
Date or sooner termination of this lease, Tenant shall, at its sole cost and
expense, remove all Specialty Installation(s) from the Demised Premises and
restore all slab penetrations to the condition that existed prior to such
penetrations (such removal and repair work being hereinafter referred to as the
"Restoration Work") except that prior to commencing such Restoration Work,
Tenant shall notify Landlord thereof and, if Landlord shall advise Tenant,
within five (5) days of receipt of such notice, that it wishes any Specialty
Installations to remain, Tenant shall not perform Restoration Work with respect
to that particular Specialty Alteration. In no event shall Tenant be obligated
to remove the executive lavatory presently existing in the Demised Premises.
(b) Tenant's obligation and liability with respect to
the removal of Specialty Installation(s) and the performance of the Restoration
Work shall survive the Expiration Date or sooner expiration or termination of
this lease.
ARTICLE 15
Repairs And Maintenance
15.01 Subject to the provisions of Sections 15.02 and Articles 22 and
23 of this lease, Tenant shall take good care of the Demised Premises. Tenant,
at its expense, shall promptly make all repairs, ordinary or extraordinary,
interior or exterior, structural or otherwise, in and about the Demised Premises
and the Building, as shall be required by reason of (i) the performance or
existence of Tenant's Work or Tenant's Changes, (ii) the installation, use or
operation of Tenant's Property in the Demised Premises, (iii) the moving of
Tenant's Property in or out of the Building, or (iv) the misuse or neglect of
Tenant or any of its employees, agents or contractors; but Tenant shall not be
responsible for any of such repairs as are required by reason of Landlord's
neglect or other fault in the manner of performing any of Tenant's Work or
Tenant's Changes which may be undertaken by Landlord for Tenant's account or are
otherwise required by reason of neglect or other fault of Landlord or its
employees, agents or contractors. Except if required by the neglect or other
fault of Landlord or its employees, agents or contractors, Tenant, at its
expense, shall repair or replace all scratched, damaged or broken doors
36
<PAGE>
or other interior glass in or about the Demised Premises and shall be
responsible for all repairs, maintenance and replacement of wall and floor
coverings in the Demised Premises and, for the repair and maintenance of all
lighting fixtures therein. All repairs, except for emergency repairs, made by
Tenant as provided herein shall be performed by contractors or subcontractors
approved in writing by Landlord prior to commencement of such repairs, which
approval shall not be unreasonably withheld or delayed. In the event that
Landlord fails to respond to Tenant within ten (10) business days with respect
to a request for approval of a contractor or subcontractor, Tenant shall send to
Landlord a notice (hereinafter referred to as the "Additional Notice") which
shall state that unless Landlord responds to the request for approval of such
contractor or subcontractor within ten (10) days after receipt of the Additional
Notice, Landlord's approval of such contractor or subcontractor shall be deemed
granted and, in the event Landlord fails to respond to such Additional Notice
within ten (10) days of receipt thereof, Landlord will be deemed to have
approved such contractor or subcontractor.
15.02 Landlord, at its expense, shall keep and maintain the Building
and its public areas, fixtures, appurtenances, systems and facilities serving,
or necessary for the use of, the Demised Premises, in good working order,
condition and repair and shall make all repairs, ordinary or extraordinary,
structural and otherwise, interior and exterior, as and when needed in or about
the Demised Premises and the Building, except for those repairs for which Tenant
is responsible pursuant to any other provisions of this lease.
15.03 Except as expressly otherwise provided in this lease, Landlord
shall have no liability to Tenant by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlord, Tenant or others
making or failing to make any repairs or changes which, with respect to
Landlord, Landlord is required or permitted by this lease, or required by law to
make, in or to any portion of the Building or the Demised Premises, or in or to
the fixtures, equipment or appurtenances of the Building or the Demised
Premises, provided that Landlord shall use due diligence in making any repairs
and shall perform such repair work, except in case of emergency, at times
reasonably convenient to Tenant and otherwise in such manner as will not
materially interfere with Tenant's use of the Demised Premises or access
thereto; provided, however, that, except as specified below, Landlord shall have
no obligation to employ contractors or labor at so-called overtime or other
premium pay rates or to incur any other overtime costs or expenses whatsoever,
except that Landlord, at its expense (but subject to inclusion as an Operating
Expense as defined in Article 5 hereof), shall employ contractors or labor at
so-called overtime or other premium pay rates if necessary to make any repair
required to be made by it hereunder to remedy any condition that (i) results in
a denial of access to the Demised Premises, (ii) threatens the health or safety
of any occupant of the Demised Premises, or (iii) except in the case of
casualty, materially interferes with Tenant's ability to conduct its business in
the Demised Premises. In all other cases, at Tenant's request 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, provided that if more than one
tenant requests such overtime work, the overtime costs therefore shall be shared
pro-rata among such tenants.
37
<PAGE>
ARTICLE 16
Electricity
16.01 The Building is equipped with risers, feeders and wiring to
furnish electric service to the Demised Premises with a capacity of not less
than six (6) watts per rentable square foot demand load (exclusive of the
Building's heat, ventilation and air-conditioning system).
16.02 Any additional risers, feeders or other equipment or service
proper or necessary to supply Tenant's electrical requirements, will, upon
written request of Tenant, be installed by Landlord, at the sole cost and
expense of Tenant, if in Landlord's reasonable judgment, the same are necessary
and will not cause permanent damage or injury to the Building or the Demised
Premises or cause or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations, repairs or expense or interfere with or
disturb other tenants or occupants. Rigid conduit only will be allowed.
16.03 Tenant shall pay, at the rate charged to Landlord for electricity
by the utility company furnishing electricity to the floor of the Building on
which the Demised Premises are located (hereinafter referred to as the "Premises
Floor"), its pro rata share (hereinafter referred to as "Tenant's Pro Rata
Share") of the electricity consumed in the Demised Premises (exclusive of the
Building's heat, ventilation and air-conditioning system), as shown on the meter
serving the Premises Floor. Tenant's Pro Rata share shall be expressed as a
percentage and shall be computed on the basis of a fraction, the numerator of
which shall be the Multiplication Factor and the denominator of which shall be
the total square foot area of the Premises Floor occupied by tenants. Landlord,
using the formula set forth above, shall compute Tenant's Pro Rata Share as of
the Commencement Date. Landlord shall recompute Tenant's Pro Rata Share after a
change in occupancy on the Premises Floor occurs, and shall send Tenant notice
thereof (hereinafter referred to as the "Recomputation Notice"), such
recomputation to be retroactive to the date of such change in occupancy.
Tenant's Pro Rata Share shall be payable by Tenant as additional rent within ten
(10) days after the rendition by Landlord of bills therefor.
16.04 In the event that, at any time, and from time to time, Tenant or
any other tenant of the Premises Floor (hereinafter referred to as the
"Disputing Tenant") shall dispute the accuracy of its Pro Rata Share as so
computed by Landlord, the Disputing Tenant shall have the right, at the
Disputing Tenant's sole cost and expense, to make a survey (hereinafter referred
to as the "Survey") of electrical usage in the space leased to all tenants of
the Premises Floor using an independent electrical engineer (hereinafter
referred to as the "Surveyor") acceptable to all tenants of the Premises Floor.
The Surveyor shall compute the proportionate share of each of the tenants of the
Premises Floor based on usage, provided, however, that the aggregate
proportionate shares of all tenants of the Premises Floor shall equal 100%. The
Survey shall be conclusive and binding upon all tenants of the Premises Floor.
Until completion of the first survey made pursuant to this Section 16.04 and
receipt thereof by Tenant, Tenant shall continue to pay its Pro Rata Share as
determined by Landlord, and Landlord shall not be required to adjust any amount
so paid on the basis of the first Survey. After completion of a Survey and
receipt thereof by Tenant, all tenants of the Premises Floor shall, effective as
of the date of the Survey,
38
<PAGE>
and continuing thereafter until completion of a new Survey and receipt thereof
by Tenant or receipt by Tenant of a Recomputation Notice, pay their Pro Rata
Shares based on the Survey retroactively adjusted to the date of the Survey.
Tenant shall cooperate with any Disputing Tenant and the Surveyor in the making
of the Survey. In the event the tenants of the Premises Floor are unable to
agree upon a Surveyor, then, upon request of any Disputing Tenant, Landlord
shall designate a Surveyor to make the Survey. In no event shall Landlord have
any liability or responsibility with respect to the accuracy of any Survey or
the fees of the Surveyor.
16.05 Landlord shall not in anywise be liable or responsible to Tenant
for any loss or damage or expense which Tenant may sustain or incur if either
the quantity or character of electric service is changed or is no longer
available or suitable for Tenant's requirements except for actual damages
sustained by Tenant due to Landlord's or its agents' or contractors' willful
acts or negligence.
16.06 In no event shall Tenant use or install any fixtures, equipment
or machines the use of which in conjunction with other fixtures, equipment and
machines in the Demised Premises would result in an overload of the electrical
circuits servicing the Demised Premises.
16.07 Tenant covenants and agrees that at all times its use of electric
current shall never exceed the service capacity set forth in Section 16.01 and
the capacity of the then existing feeders to the Building or the risers or
wiring installation, subject to the provisions of Section 16.02. Tenant shall
furnish, install and replace, as required, all lighting tubes, lamps, bulbs and
ballasts required in the Demised Premises, at Tenant's sole cost and expense.
All lighting tubes, lamps, bulbs and ballasts so installed shall become
Landlord's property upon the expiration or sooner termination of this lease.
ARTICLE 17
Heat, Ventilating And Air-Conditioning
17.01 The Demised Premises are equipped with peripheral heat exchange
units and a central core heat exchange unit all of which shall be connected to
the Building's heating system and water tower. Landlord shall provide to such
heat exchange units within the Demised Premises the specified heated and cooled
water required for the operation of the system in accordance with the design
specifications set forth in Exhibit C.
17.02 Use of the Demised Premises, or any part thereof, in a manner
exceeding the design conditions (including occupancy and connected electrical
load) specified in Exhibit C for heat exchange units in the Demised Premises, or
rearrangement of partitioning which interferes with normal operation of the
heat, ventilation and air-conditioning in the Demised Premises, may require
changes in the heat, ventilation and air-conditioning system servicing the
Demised Premises. Such changes, so occasioned, shall be made by Tenant, at its
expense, as Tenant's Changes pursuant to Article 13.
39
<PAGE>
17.03 Landlord, at its expense, shall maintain and operate the heating,
ventilating and air-conditioning systems (hereafter referred to as the
"systems") and, subject to energy conservation requirements of governmental
authorities, shall furnish heat, ventilating and air-conditioning (hereinafter
collectively referred to as the "air-conditioning service") in the Demised
Premises through the systems, which shall be in compliance with the performance
specifications in Exhibit C. Air-conditioning shall be provided from May 15
through October 15 during "regular hours" (that is between the hours of 8:00
A.M. and 6:00 P.M.) of "business days" (which term is used herein to mean all
days except Saturdays, Sundays and days now or hereafter observed by the Federal
or New York State government as legal holidays and those now or hereafter
designated by the applicable building service union employees service contract
or by the applicable Operating Engineers contract) throughout the year. If the
same holiday is observed by the Federal or New York State government on
different days, only one of such days, as selected by Landlord, shall be deemed
a holiday. Heating and ventilation shall be provided during other periods of the
year as may be required for comfortable occupancy of the Demised Premises during
regular hours of business days. If Tenant shall require heating, ventilating or
air-conditioning service at any other time (hereinafter referred to as "after
hours"), Landlord shall furnish such after hours service upon reasonable advance
notice from Tenant, and Tenant shall pay to Landlord, within fifteen (15) days
after receipt of an invoice therefor (which invoice shall set forth the
calculation thereof), the then current Building charge (hereinafter referred to
as the "Building Charge") therefor which is presently $221.10 per hour. The
Building Charge may be adjusted from time to time to reflect increased costs to
Landlord for providing after hours service. In the event any other tenant in the
same three (3) floor air-conditioning zone as Tenant requests after hours
service, the cost for such after hours service shall be appropriately pro-rated
among all such tenants in such zone, including Tenant, requesting such after
hours service based upon the rentable square footage of each such tenant in such
zone.
17.04 Landlord agrees that Tenant may install, at Tenant's own cost and
expense and in accordance with the applicable provisions of this lease,
supplemental air-conditioning systems (which, together with any supplemental
air-conditioning systems presently existing in the Demised Premises are
hereinafter collectively referred to as the "Supplemental Air-Conditioning
System") to enable Tenant to receive, at any one time, not more than an
aggregate (together with any existing supplemental air-conditioning system) of
seventeen (17) tons of supplementary air-conditioning for the Demised Premises.
The costs of installation (including, without limitation, connection to any
condenser water source), maintenance and operation of the Supplemental
Air-Conditioning System shall be borne by Tenant. The connection to the Building
condenser water source shall be supervised by Landlord's Building contractor.
17.05 Landlord shall furnish condenser water to the Demised Premises to
operate Tenant's Supplemental Air Conditioning System. Tenant covenants and
agrees to pay Landlord for its use of condenser water at the rate of $0.073 per
hour per rated ton of cooling capacity of the Supplemental Air-Conditioning
System (hereinafter referred to as the "Base Rate") which hourly usage shall be
measured by a clock or other measuring device satisfactory
40
<PAGE>
to Landlord to be installed by Tenant at the time the Supplemental
Air-Conditioning System is installed. The Base Rate shall be subject to
reasonable adjustment for any net increases in the cost to Landlord in
connection with the creating and furnishing of condenser water over the costs
which exist as of the date hereof. All payments due under this Section shall be
payable by Tenant within twenty (20) business days after demand from Landlord
therefor. Tenant may, at its sole cost and expense connect to Landlord's
Building waste lines and the manner of such connection shall be subject to
Landlord's prior written approval, which approval shall not be unreasonably
withheld or delayed. All facilities, machinery and equipment within the Demised
Premises related to the Supplemental Air-Conditioning System shall be connected
by Tenant and operated by Tenant solely at Tenant's cost and expense. All such
facilities shall be installed by Tenant solely within the Demised Premises.
Tenant's blowers, chilling equipment, fans and other facilities, equipment and
machinery used in connection with the Supplemental Air-Conditioning System shall
operate on electricity purchased by Tenant in accordance with the provisions of
Article 16 of this lease. All facilities, equipment, machinery and ducts
installed by Tenant in connection with the Supplemental Air-Conditioning System
shall (a) be subject to Landlord's prior written approval which approval shall
not be unreasonably withheld or delayed, (b) comply with Landlord's reasonable
requirements as to installation, maintenance and operation, and (c) comply with
all other terms, covenants and conditions of this Lease applicable thereto.
ARTICLE 18
Landlord's Other Services
18.01 Landlord, at its expense, shall provide public elevator service,
passenger and freight, by elevators serving the floor on which the Demised
Premises are situated during regular hours of business days, and shall have at
least one passenger elevator subject to call at all other times.
18.02 Landlord, at its expense, shall cause the Demised Premises
(except "security areas" (as defined in Section 19.03) unless access thereto is
made available to the cleaning contractor) to be cleaned in accordance with the
cleaning specifications annexed hereto as Exhibit F. Tenant shall pay to
Landlord on demand the costs actually incurred by Landlord for (a) extra
cleaning work in the Demised Premises required because of (i) misuse or neglect
on the part of Tenant or its employees or visitors, (ii) use of portions of the
Demised Premises for preparation, serving or consumption of food or beverages,
data processing or reproducing operations, private lavatories or toilets or
other special purposes requiring greater or more difficult cleaning work than
office areas, (iii) unusual quantity of interior glass surfaces, (iv)
non-Building standard materials or finishes installed by Tenant or at its
request requiring greater or more difficult cleaning than the Building standard,
and (b) removal from the Demised Premises and the Building of so much of any
refuse and rubbish of Tenant as shall exceed that ordinarily accumulated daily
in the routine of business office occupancy. Landlord, its cleaning contractor
and their employees shall have after hours access to the Demised Premises except
for the security areas and the free use of light, power and water in the Demised
Premises as reasonably required for the purpose of cleaning the Demised Premises
in accordance with Landlord obligations hereunder.
41
<PAGE>
18.03 Landlord, at its expense, shall furnish hot and cold water to the
floor(s) on which the Demised Premises are located through the existing
wet-columns, adequate for drinking, lavatory, pantry and cleaning purposes. If
Tenant uses water for any other purpose Landlord, at Tenant's expense, shall
install meters to measure Tenant's consumption of cold water and/or hot water
for such other purposes, as the case may be. Tenant shall pay for the quantities
of cold water and hot water shown on such meters in excess of the amounts
typically used for drinking, lavatory, pantry and cleaning purposes by office
tenants leasing comparably sized space in the Building, at Landlord's cost
thereof, on the rendition of Landlord's bills therefor.
18.04 Landlord, at its expense, and on Tenant's request, shall maintain
the listings on the Building directory of the names of Tenant and any permitted
subtenant, and the names of any of their respective officers and employees,
provided that the names so listed shall not take up more than Tenant's
Proportionate Share of the number of lines on the Building directory (but in no
event less than six (6) listings). In the event Tenant shall require additional
or substitute listings on the Building directory, Landlord shall, to the extent
space for such additional listing is available, maintain such listings and
Tenant shall pay to Landlord an amount equal to Landlord's out-of-pocket costs
for such additional or substitute listings.
18.05
(a) Landlord reserves the right, without any
liability to Tenant, except as otherwise expressly provided in this lease, to
stop service of any of the heating, ventilating, air conditioning, electric,
sanitary, elevator or other Building systems serving the Demised Premises, or
the rendition of any of the other services required of Landlord under this
lease, whenever and for so long as may be necessary, by reason of accidents,
emergencies, strikes or the making of repairs or changes which Landlord is
required by this lease or by law to make or in good faith deems necessary, by
reason of difficulty in securing proper supplies of fuel, steam, water,
electricity, labor or supplies, or by reason of any other cause beyond
Landlord's reasonable control. Landlord shall endeavor to minimize inconvenience
to Tenant in connection with such stoppages.
(b) Notwithstanding anything to the contrary
contained in this lease, if, as a result of (i) Landlord's failure to provide
any service under this lease which is required to be provided by Landlord, or
(ii) Landlord's failure to make or complete repairs to the Demised Premises
and/or the Building which it is required to make and complete pursuant to the
provisions of this lease or, (iii) in connection with making any such repair,
Landlord materially interferes with Tenant's use of the Demised Premises, in
each case resulting from causes other than the act, omission or negligence of
Tenant, or its agents, employees, contractors or invitees, or, with respect to
items (i) and (ii) above, of any public utility company serving the Building,
Tenant is unable to use all or any portion of the Demised Premises in the normal
course of its business and does not use all or such portion of the Demised
Premises for a period in excess of fifteen (15) consecutive business days by
reason of such failure, then, to the extent Tenant is not reimbursed by the
proceeds of any business interruption insurance carried by Tenant, Tenant
42
<PAGE>
shall be entitled to an abatement of fixed rent from and after the sixteenth
(16th) business day through the day when such service is restored or repairs are
completed based upon the ratio that the rentable square foot area of the Demised
Premises not used by Tenant bears to the rentable square foot area of the
Demised Premises. The foregoing provisions shall not apply in the event the
Demised Premises are damaged in whole or part as a result of fire or other
casualty, which is dealt with in other provisions of this lease.
ARTICLE 19
Access, Changes In Building Facilities, Name
19.01 All portions of the Building except the inside surfaces of all
walls, windows and doors bounding the Demised Premises (including exterior
Building walls, core corridor walls and doors and any core corridor entrance)
and any space in or adjacent to the Demised Premises used for shafts, stacks,
pipes, conduits, fan rooms, ducts, electric or other utilities, sinks or other
Building facilities, and the use thereof, as well as access thereto through the
Demised Premises for the purpose of operation, maintenance, decoration and
repair, are reserved to Landlord, subject to the provisions of Section 19.03.
19.02 Tenant shall permit Landlord to install, use, replace and
maintain pipes, ducts and conduits within the demising walls, bearing columns,
floors, partitioning and ceilings of the Demised Premises provided that such
pipes, ducts and conduits are concealed and are installed in a manner which does
not materially detract from the appearance of the Demised Premises or interfere
with Tenant's use and occupancy of the Demised Premises and further provided
that Landlord shall, at its sole cost and expense, repair any damage to the
Demised Premises caused by such installation and restore same to substantially
the condition. that existed prior to such installation by Landlord.
19.03 Landlord or Landlord's agent shall have the right, upon
reasonable prior request (except in emergency under clause (ii) hereof) to enter
and/or pass through the Demised Premises or any part thereof, except for areas
designated by Tenant as private or where money or other valuables are kept
(hereinafter referred to as "security areas") unless accompanied by a
representative of Tenant, which representative Tenant agrees shall be made
available by Tenant, at reasonable times during reasonable hours, (i) to examine
the Demised Premises and to show them to the fee owners, lessors of superior
leases, holders of superior mortgages, or prospective purchasers, mortgagees or
lessees of the Building as an entirety, and (ii) for the purpose of making such
repairs or changes, with reasonable diligence, in or to the Demised Premises or
in or its facilities, as may be provided for by this lease or as may be mutually
agreed upon by the parties or as Landlord may be required to make by law or in
order to repair and maintain said structure or its fixtures or facilities.
Landlord shall be allowed to take all materials into and upon the Demised
Premises that may be reasonably required for such repairs, changes, repainting
or maintenance to the Demised Premises only, without liability to Tenant, but
Landlord shall not unreasonably interfere with Tenant's use of the Demised
Premises or reduce the floor area of the Demised Premises, other than on a
temporary basis, by more than one (1%) percent. Landlord shall also have the
right to enter on and/or pass through the Demised Premises, or any part
43
<PAGE>
thereof, at such times as such entry shall be required by circumstances of
emergency affecting the Demised Premises or said structure. In such
circumstances of emergency, a policeman or fireman shall accompany Landlord's
entry into any security area whenever possible and Landlord will give Tenant
prompt notice after such entry.
19.04 During the period of twelve (12) months prior to the Expiration
Date, Landlord may, upon reasonable prior notice to Tenant, exhibit the Demised
Premises (other than security areas unless accompanied by a representative of
Tenant which representative Tenant agrees shall be made available by Tenant), to
prospective tenants during the times allowed in Section 19.03.
19.05 Landlord reserves the right, upon reasonable prior notice without
incurring any liability to Tenant therefor, and without it constituting an
actual or constructive eviction, to make such changes in or to the Building and
the fixtures and equipment thereof, as well as in or to the size, composition,
number, arrangement or location of the public entrances, doors, doorways, halls,
passages, elevators, escalators and stairways and other public portions thereof,
as it may deem reasonably necessary or desirable but in conformance with
standards applicable to first-class office buildings in Manhattan, provided that
Tenant shall, at all times, have ingress and egress to and from the Building and
the Demised Premises, and provided that such change does not unreasonably
interfere with Tenant's access to, or the use of the Demised Premises and the
Building by Tenant or unreasonably diminish elevator or other services presently
available to Tenant, or reduce the usable area of the Demised Premises.
19.06 Landlord may adopt any name for the Building. Landlord reserves
the right to change the name or address of the Building at any time.
19.07 For the purposes of Article 19, the term "Landlord" shall include
lessors of leases and the holders of mortgages to which this lease is subject
and subordinate as provided in Article 7.
19.08 Any reservation in this lease of a right by Landlord to enter
upon the Demised Premises and to make or perform any repairs, alterations or
other work in, to or about the Demised Premises which, in the first instance, is
the obligation of Tenant pursuant to this lease shall not be deemed to: (i)
impose any obligation on Landlord to do so, (ii) render Landlord liable (to
Tenant or any third party) for the failure to do so, or (iii) relieve Tenant
from any obligations to indemnify Landlord as otherwise provided elsewhere in
this lease.
19.09 Landlord agrees that the Demised Premises will be accessible 24
hours a day 7 days per week, subject to Landlord's reasonable security
procedures.
44
<PAGE>
ARTICLE 20
Notice Of Accidents
20.01 Tenant shall give notice to Landlord, promptly after Tenant has
actual knowledge thereof, of (i) any accident in or about the Demised Premises
for which Landlord might be liable, (ii) all fires in the Demised Premises,
(iii) all damages to or defects in the Demised Premises, including the fixtures,
equipment and appurtenances thereof, for the repair of which Landlord might be
responsible, and (iv) all damage to or defects in any parts or appurtenances of
the Building's sanitary, electrical, heating, ventilating, air-conditioning,
elevator and other systems located in or passing through the Demised Premises or
any part thereof.
ARTICLE 21
Non-Liability And Indemnification
21.01 Neither Landlord nor any agent or employee of Landlord shall be
liable to Tenant for any injury or damage to Tenant or to any other person or
for any damage to, or loss (by theft or otherwise) of, any property of Tenant or
of any other person, irrespective of the cause of such injury, damage or loss,
unless caused by or due to the negligence of Landlord, its agents or employees
occurring within the scope of their respective employments, it being understood
that no property, other than such as might normally be brought upon or kept in
the Demised Premises as an incident to the reasonable use of the Demised
Premises for the purpose herein permitted, will be brought upon or be kept in
the Demised Premises.
21.02
(a) Except for claims covered by Landlord's
indemnification under Sections 21.02(b), Tenant shall indemnify and save
harmless Landlord and its agents against and from (i) any and all claims (x)
arising from (A) the conduct or management of the Demised Premises or of any
business therein, or (B) any work or thing whatsoever done, or any condition
created (other than by Landlord for Landlord's or Tenant's account) in or about
the Demised Premises during the term of this lease or during the period of time,
if any, prior to the Commencement Date that Tenant may have been given access to
the Demised Premises, or (Y) arising from any negligent or otherwise wrongful
act or omission of Tenant or any of its subtenants or licensees or its or their
employees, agents or contractors, and (ii) all reasonable costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon. In case any action or proceeding be brought against
Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall
resist and defend such action or proceeding.
(b) Except for claims covered by Tenant's
indemnification under Section 21.02(a), Landlord shall indemnify and save
harmless Tenant and its agents against and from (i) any and all claims (x)
arising from (A) the conduct or management of the
45
<PAGE>
Building (other than the Demised Premises) or of any business therein including,
without limitation, Landlord's obligations pursuant to Section 10.01(a), or (B)
any work or thing whatsoever done, or any condition created (other than by
Tenant) in or about the Building (other than the Demised Premises) during the
term of this lease, or (y) arising from any negligent or otherwise wrongful act
or omission of Landlord or any of its tenants or licensees or its or their
employees, agents or contractors, and (ii) all reasonable costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon. In case any action or proceeding be brought against
Tenant by reason of any such claim, Landlord, upon notice from Tenant, shall
resist and defend such action or proceeding.
21.03 Except as otherwise expressly provided in this lease, this lease
and the obligations of Landlord or Tenant hereunder shall be in no wise
affected, impaired or excused because the other party is unable to fulfill, or
is delayed in fulfilling, any of its obligations under this lease by reason of
strike, other labor trouble, governmental pre-emption or priorities or other
controls in connection with a national or other public emergency or shortages of
fuel, supplies or labor resulting therefrom, acts of God or other like cause
beyond such other party's reasonable control, but excluding inability to pay or
unavailability of funds. Landlord and Tenant shall each use reasonable diligence
to effect performance of their respective obligations promptly after the
condition causing its respective inability to, or delay in, performing their
respective obligations under this lease no longer exists.
ARTICLE 22
Destruction Or Damage
22.01 If the Building or the Demised Premises shall be damaged or
destroyed by fire or other cause, Landlord, within ninety (90) days after such
damage or destruction, shall deliver to Tenant an estimate of the time
(hereinafter referred to as the "Estimated Time") required to repair or restore
the damage or destruction, prepared by an independent contractor or architect
(such estimate being hereinafter referred to as the "Estimate"). If the Building
or the Demised Premises shall be partially damaged or partially destroyed by
fire or other cause, the rents payable hereunder shall be abated to the extent
that the Demised Premises shall have been rendered untenantable and for the
period from the date of such damage or destruction to the date the damage shall
be repaired or restored in accordance with the provisions of Section 22.03. If
the Demised Premises or a major part thereof shall be totally (which shall be
deemed to include substantially totally) damaged or destroyed or rendered
completely (which shall be deemed to include substantially completely)
untenantable or inaccessible on account of fire or other cause, the rents shall
abate as of the date of the damage or destruction and until Landlord shall
repair, restore and rebuild the Building and the Demised Premises, provided,
however, that should Tenant reoccupy a portion of the Demised Premises during
the period the restoration work is taking place and prior to the date that the
same are made completely tenantable, rents allocable to such portion shall be
payable by Tenant from the date of such occupancy.
22.02 If the Building or the Demised Premises shall be totally damaged
or destroyed by fire or other cause, or if the Building shall be so damaged or
destroyed by fire or
46
<PAGE>
other cause (whether or not the Demised Premises are damaged or destroyed) as to
require a reasonably estimated expenditure of more than 40% of the full
insurable value of the Building immediately prior to the casualty, then in
either such case Landlord may terminate this lease by giving Tenant notice to
such effect within ninety (90) days after the date of the casualty. In case of
any damage or destruction mentioned in this Article Tenant may terminate this
lease, (a) by notice to Landlord sent within thirty (30) days after receipt of
the Estimate if the Estimated Time exceeds twelve (12) months or, (b) if
Landlord has not completed the making of the required repairs and restored and
rebuilt the Building and the Demised Premises within twelve (12) months from the
date of such damage or destruction, or within such period after such date (not
exceeding three (3) months) as shall equal the aggregate period Landlord may
have been delayed in doing so by adjustment of insurance, labor trouble,
governmental controls, act of God, or any other cause beyond Landlord's
reasonable control, by notice to Landlord sent within thirty (30) days after
such twelve (12) month period (as same may be extended pursuant to the
provisions of Section 22.02(b)) or (c) by notice to Landlord sent within thirty
(30) days of receipt of the Estimate if such damage or destruction occurs during
the last two (2) years of the term hereof and the Estimated Time exceeds six (6)
months, or (d) if such damage or destruction occurs during the last two (2)
years of the term hereof if Landlord shall not have completed making the
required repairs and restoration and rebuilt the Building and Demised Premises
within six (6) months from the date of such damage or destruction, by notice to
Landlord sent within thirty (30) days after such six (6) month period.
22.03 If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other cause, then, whether or not the
damage or destruction shall have resulted from the fault or neglect of Tenant,
or its employees, agents or visitors (and if this lease shall not have been
terminated as in this Article provided), Landlord shall repair the damage and
restore and rebuild the Building and/or the Demised Premises, at its expense,
with reasonable dispatch after notice to it of the damage or destruction;
provided, however, that Landlord shall not be required to repair or replace any
of Tenant's Property, Tenant's Changes or Tenant's Work.
22.04 No damages, compensation or claim shall be payable by Landlord
for inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Article. Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as to not unreasonably interfere with
Tenant's use and occupancy.
22.05 Landlord and Tenant each agree, at the request of the other, to
reasonably cooperate with the other and such other's insurance carriers) in
connection with any adjustment of insurance required after the occurrence of any
damage or destruction to the Building, the Demised Premises, Tenant's Property
and Landlord's personal property.
22.06 Landlord will not carry insurance of any kind on Tenant's
Property, Tenant's Changes or Tenant's Work, and, except as provided by law or
by reason of its fault or
47
<PAGE>
its breach of any of its obligations hereunder, shall not be obligated to repair
any damage thereto or replace the same.
22.07 The provisions of this Article shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises by
fire or other casualty, and Section 227 of the Real Property Law of the State of
New York, providing for such a contingency in the absence of an express
agreement, and any other law of like import, now or hereafter in force, shall
have no application in such case.
ARTICLE 23
Eminent Domain
23.01 If the whole (or substantially the whole) of the Building shall
be lawfully taken by condemnation or in any other manner for any public or
quasi-public use or purpose, this lease and the term and estate hereby granted
shall forthwith terminate as of the date of vesting of title in such taking
(which date is hereinafter also referred to as the "date of the taking"), and
the rents shall be prorated and adjusted as of such date.
23.02 Except as hereafter expressly set forth, if only a part of the
Building shall be so taken, this lease shall be unaffected by such taking,
except that Tenant may elect to terminate this lease in the event access to and
from the Demised Premises is materially impeded or in the event of a partial
taking of the Demised Premises if the remaining area of the Demised Premises
shall not be reasonably sufficient for Tenant to continue feasible operation of
its business. Tenant shall give notice of such election to Landlord not later
than thirty (30) days after (i) notice of such taking is given by Landlord to
Tenant, or (ii) the date of such taking, whichever occurs sooner. Upon the
giving of such notice by Tenant this lease shall terminate on the date of such
taking and the rents shall be prorated as of such termination date. Upon such
partial taking and this lease continuing in force as to any part of the Demised
Premises, the rents apportioned to the part taken shall be prorated and adjusted
as of the date of taking and from such date the fixed rent for the Demised
Premises and additional rent shall be payable pursuant to Article 5 according to
the rentable area remaining.
23.03 Landlord shall be entitled to receive the entire award in any
proceeding with respect to any taking provided for in this Article without
deduction therefrom for any estate vested in Tenant by this lease and Tenant
shall receive no part of such award, except as hereinafter expressly provided in
this Article. Tenant hereby expressly assigns to Landlord all of its right,
title and interest in or to every such award. Notwithstanding anything herein to
the contrary, Tenant may, at its sole cost and expense, make a claim with the
condemning authority for Tenant's moving expenses, the value of Tenant's
fixtures or Tenant's Changes which do not become part of the Building or
property of Landlord and any other claims permitted by law, provided however
that Landlord's award is not thereby reduced or otherwise adversely affected.
23.04 If the temporary use or occupancy of all or any part of the
Demised Premises shall be lawfully taken by condemnation or in any other manner
for any public or
48
<PAGE>
quasi-public use or purpose during the term of this lease, 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
Demised Premises and, if so awarded, for the taking of Tenant's Property and for
moving expenses, and Landlord shall be entitled to receive that portion which
represents reimbursement for the cost of restoration of the Demised Premises.
This lease shall be and remain unaffected by such taking and Tenant shall
continue responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay in full
the fixed rent and additional rent when due. If the period of temporary use or
occupancy shall extend beyond the Expiration Date, that part of the award which
represents compensation for the use or occupancy of the Demised 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 the Expiration Date
and Landlord shall receive so much thereof as represents the period subsequent
to the Expiration Date. All moneys received by Tenant as, or as part of, an
award for temporary use and occupancy for a period beyond the date to which the
rents hereunder have been paid by Tenant shall be received, held and applied by
Tenant as a trust fund for payment of the rents falling due hereunder.
23.05 In the event of any taking of less than the whole of the Building
which does not result in a termination of this lease, or in the event of a
taking for a temporary use or occupancy of all or any part of the Demised
Premises which does not extend beyond the Expiration Date, Landlord, at its
expense, and to the extent any award or awards shall be sufficient for the
purpose, shall proceed with reasonable diligence to repair, alter and restore
(a) the remaining parts of the Building to substantially a building standard
condition to the extent that the same may be feasible and so as to constitute a
complete and tenantable Building and (b) the Demised Premises to substantially
the condition existing prior to the taking.
23.06 Should any part of the Demised Premises or the Building be taken
to effect compliance with any law or requirement of public authority other than
in the manner hereinabove provided in this Article, then (i) if such compliance
is the obligation of Tenant under this lease, Tenant shall not be entitled to
any diminution or abatement of rent or other compensation from Landlord
therefor, but (ii) if such compliance is the obligation of Landlord under this
lease, the fixed rent hereunder shall be reduced and additional rents under
Article 5 shall be adjusted in the same manner as is provided in Section 23.02
according to the reduction in rentable area of the Demised Premises resulting
from such taking.
23.07 Any dispute which may arise between the parties with respect to
the meaning or application of any of the provisions of this Article shall be
determined by arbitration in the manner provided in Article 34.
ARTICLE 24
Surrender; Holdover
24.01 On the last day of the term of this lease, or upon any earlier
termination of this lease, or upon any re-entry by Landlord upon the Demised
Premises, Tenant shall quit and
49
<PAGE>
surrender the Demised Premises to Landlord in good order, condition and repair,
except for ordinary wear and tear and Tenant shall remove all of Tenant's
Property therefrom except as otherwise expressly provided in this lease and
shall restore the Demised Premises wherever such removal results in damage
thereto.
24.02
(a) In the event this lease is not renewed or
extended or a new lease is not entered into between the parties, and if Tenant
shall then hold over after the expiration of the term of this lease, and if
Landlord shall then not proceed to remove Tenant from the Demised Premises in
the manner permitted by law (or shall not have given written notice to Tenant
that Tenant must vacate the Demised Premises) irrespective of whether or not
Landlord accepts rent from Tenant for a period beyond the Expiration Date, the
parties hereby agree that Tenant's occupancy of the Demised Premises after the
expiration of the term shall be under a month-to-month tenancy commencing on the
first day after the expiration of the term, which tenancy shall be upon all of
the terms set forth in this lease except Tenant shall pay on the first day of
each month of the holdover period as fixed rent, an amount equal to the higher
of (i) to two times one-twelfth the fixed rent payable by Tenant during the last
year of the term of this lease (i.e., the year immediately prior to the holdover
period) or (ii) two (2) times an amount equal to the then monthly fair market
rental value for the Demised Premises as shall be established by Landlord giving
notice to Tenant of Landlord's good faith estimate of such fair market rental
value. Tenant may dispute such fair market rental value for the Demised Premises
as estimated by Landlord by giving notice to Landlord within but in no event
after twenty (20) days after the giving of Landlord's notice to Tenant (as to
the giving of which notice to Landlord, time shall be deemed of the essence).
Enclosed with such notice, Tenant shall be required to furnish to Landlord a
certified opinion of a reputable New York licensed real estate broker having
leasing experience in the Borough of Manhattan for a period of not less than ten
(10) years setting forth said broker's good faith opinion of the fair market
rental value of the Demised Premises. If Tenant and Landlord are unable to
resolve any such dispute as to the fair market rental value for the Demised
Premises then an independent arbitrator who shall be a real estate broker of
similar qualifications and shall be selected from a listing of not less than
three (3) brokers furnished by The Real Estate Board of New York, Inc., to
Tenant and Landlord (at the request of either Landlord or Tenant). If Landlord
and Tenant are unable to agree upon the selection of the individual arbitrator
from such listing, then the first arbitrator so listed by The Real Estate Board
of New York, Inc. shall be conclusively presumed to have been selected by both
Landlord and Tenant. The average of the determination of the independent
arbitrator and the determination of the broker coming closest to the independent
arbitrator shall be conclusive and binding upon the parties as to the fair
market rental value of the Demised Premises. Pending the determination of the
fair market rental value of the Demised Premises upon the expiration of the term
of this lease, Tenant shall pay to Landlord as fixed rent an amount computed in
accordance with clause (i) of this subsection 24.02(a), and upon determination
of the fair market rental value of the Demised Premises in accordance with the
preceding provisions hereof appropriate adjustments and payments shall be
effected. It is further stipulated and agreed that if
50
<PAGE>
Landlord shall, at any time after the expiration of the original term or after
the expiration of any term created thereafter, proceed to remove Tenant from the
Demised Premises as a holdover, the fixed rent for the use and occupancy of the
Demised Premises during any holdover period shall be calculated in the same
manner as set forth above. In addition to the foregoing, Landlord shall be
entitled to recover from Tenant any losses or damages arising from such holdover
including, without limitation, if such holdover continues beyond sixty (60)
days, any losses or damages suffered or incurred by Landlord with respect to any
subsequent tenant or occupant of the Demised Premises or any portion thereof
pursuant to any written lease or other written agreement between such tenant or
occupant and Landlord.
(b) Notwithstanding anything to the contrary
contained in this lease, the acceptance of any rent paid by Tenant pursuant to
subsection 24.02(a) above shall not preclude Landlord from commencing and
prosecuting a holdover or summary eviction proceeding, and the preceding
sentence shall be deemed to be an "agreement expressly providing otherwise"
within the meaning of Section 232-c of the Real Property Law of the State of New
York.
(c) All damages to Landlord by reason of holding over
by Tenant may be of the subject of a separate action and need not be asserted by
Landlord in any summary proceedings against Tenant.
ARTICLE 25
Conditions Of Limitation
25.01 To the extent permitted by applicable law this lease and the term
and estate hereby granted are subject to the limitation that whenever Tenant
shall make an assignment of the property of Tenant for the benefit of creditors,
or shall file a voluntary petition under any bankruptcy or insolvency law, or an
involuntary petition alleging an act of bankruptcy or insolvency shall be filed
against Tenant under any bankruptcy or insolvency law, or whenever a petition
shall be filed or against Tenant under the reorganization provisions of the
United States Bankruptcy Act or under the provisions of any law of like import,
or whenever a petition shall be filed by Tenant under the arrangement provisions
of the United States Bankruptcy Act or under the provisions of any law of like
import, or whenever a permanent receiver of Tenant or of or for the property of
Tenant shall be appointed, then, Landlord, (a) at any time after receipt of
notice of the occurrence of any such event, or (b) if such event occurs without
the acquiescence of Tenant, at any time after the event continues unstayed for
ninety (90) days, Landlord may give Tenant a notice of intention to end the term
of this lease at the expiration of five (5) days from the date of service of
such notice of intention, and upon the expiration of said five (5) day period
this lease and the term and estate hereby granted, whether or not the term shall
theretofore have commenced, shall terminate with the same effect as if that day
were the Expiration Date, but Tenant shall remain liable for damages as provided
in Article 27.
25.02 This lease and the term and estate hereby granted are subject to
the further limitation that:
51
<PAGE>
(a) whenever Tenant shall default in the payment of
any installment of fixed rent, or in the payment of any additional rent or any
other charge payable by Tenant to Landlord, on any day upon which the same ought
to be paid, and such default shall continue for ten (10) days after Landlord
shall have given Tenant a notice specifying such default; or
(b) whenever Tenant shall do or permit anything to be
done, whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied by
Tenant within thirty (30) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a happening or default which
cannot with due diligence be cured within a period of thirty (30) days and the
continuance of which for the period required for cure will not subject Landlord
to the risk of criminal liability (as more particularly described in Section
10.02) or termination of any superior lease or foreclosure of any superior
mortgage, if Tenant shall not, (i) within said thirty (30) day period advise
Landlord of Tenant's intention to duly institute all steps necessary to remedy
such situation, (ii) duly institute within said thirty (30) day period, and
thereafter diligently prosecute to completion all steps necessary to remedy the
same and (iii) complete such remedy within such time after the date of the
giving of said notice of Landlord as shall reasonably be necessary; or
(c) whenever any event shall occur or any contingency
shall arise whereby this lease or the estate hereby granted or the unexpired
balance of the term hereof would, by operation of law or otherwise, devolve upon
or pass to any person, firm or corporation other than Tenant, except as
expressly permitted by Article 9; or
(d) whenever Tenant shall abandon the Demised
Premises (unless as a result of a casualty) and the Demised Premises shall
remain so abandoned after notice thereof to Tenant and Tenant shall fail to
provide reasonable security measures to prevent unauthorized entry into the
Demised Premises, or
(e) when Tenant shall be in default in the observance
or performance of its obligations under any other lease in the Building which
default continues after notice and beyond applicable grace periods,
then in any of said cases set forth in the foregoing Subsections (a), (b), (c)
(d) and (e), Landlord may give to Tenant a notice of intention to end the term
of this lease at the expiration of five (5) days from the date of the service of
such notice of intention, and upon the expiration of said five (5) days this
lease and the term and estate hereby granted, whether or not the term shall
theretofore have commenced, shall terminate with the same effect as if that day
were the Expiration Date, but Tenant shall remain liable for damages as provided
in Article 27.
52
<PAGE>
ARTICLE 26
Re-Entry By Landlord
26.01 If Tenant shall default in the payment of any installment of
fixed rent, or of any additional rent, on any date upon which the same ought to
be paid, and if such default shall continue for ten (10) business days after
Landlord shall have given to Tenant a notice specifying such default, or if this
lease shall expire as in Article 25 provided, Landlord or Landlord's agents and
employees may immediately or at any time thereafter re-enter the Demised
Premises, or any part thereof, in the name of the whole, either by summary
dispossess proceedings or by any suitable action or proceeding at law, or by
force or otherwise, without being liable to indictment, prosecution or damages
therefor, and may repossess the same, and may remove any persons therefrom, to
the end that Landlord may have, hold and enjoy the Demised Premises again as and
of its first estate and interest therein. The word re-enter, as herein used, is
not restricted to its technical legal meaning. In the event of any termination
of this lease under the provisions of Article 25 or if Landlord shall re-enter
the Demised Premises under the provisions of this Article or in the event of the
termination of this lease, or of re-entry, by or under any summary dispossess or
other proceeding or action or any provision of law by reason of default
hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the
fixed rent and additional rent payable by Tenant to Landlord up to the time of
such termination of this lease, or of such recovery of possession of the Demised
Premises by Landlord, as the case may be, and shall also pay to Landlord damages
as provided in Article 27.
26.02 In the event of a breach or threatened breach by Tenant of any of
its obligations under this lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies or means
of redress to which Landlord may lawfully be entitled at any time and Landlord
may invoke any remedy allowed at law or in equity as if specific remedies were
not provided for herein.
26.03 If this lease shall terminate under the provisions of Article 25,
or if Landlord shall re-enter the Demised Premises under the provisions of this
Article, or in the event of the termination of this lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all moneys, if any, paid by Tenant to Landlord, whether as
advance rent, security or otherwise, but such moneys shall be credited by
Landlord against any fixed rent or additional rent due from Tenant at the time
of such termination or re-entry or, at Landlord's option, against any damages
payable by Tenant under Article 27 or pursuant to law.
ARTICLE 27
Damages
27.01 If this lease is terminated under the provisions of Article 25,
or if Landlord shall re-enter the Demised Premises under the provisions of
Article 26, or in the event of the
53
<PAGE>
termination of this lease, or of re-entry, by or under any summary dispossess or
other proceeding or action or any provision of law by reason of default
hereunder on the part of Tenant, Tenant shall pay to Landlord as damages, at the
election of Landlord, either:
(a) a sum which at the time of such termination of
this lease or at the time of any such re-entry by Landlord, as the case may be,
represents the then present value of the excess, if any, discounted at the rate
of six (6%) percent per annum, of:
(i) the aggregate of the fixed rent and the
additional rent payable hereunder which would have been payable by Tenant
(conclusively presuming the additional rent to be the same as was payable for
the year immediately preceding such termination) for the period commencing with
such earlier termination of this lease or the date of any such re-entry, as the
case may be, and ending with the Expiration Date, had this lease not so
terminated or had Landlord not so re-entered the Demised Premises; over
(ii) the aggregate rental value of the
Demised Premises for the same period; or
(b) sums equal to the fixed rent and the additional
rent (as above presumed) payable hereunder which would have been payable by
Tenant had this lease not so terminated, or had Landlord not so re-entered the
Demised Premises, payable upon the due dates therefor specified herein following
such termination or such re-entry and until the Expiration Date, provided,
however, that if Landlord shall relet the Demised Premises during said period,
Landlord shall credit Tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting from the gross
rents as and when received by Landlord from such reletting the expenses incurred
or paid by Landlord in terminating this lease or in re-entering the Demised
Premises and in securing possession thereof, as well as the expenses of
reletting, including altering and preparing the Demised Premises for new
tenants, brokers' commissions, and all other expenses properly chargeable
against the Demised Premises and the rental therefrom; it being understood that
any such reletting may be for a period shorter or longer than the remaining term
of this lease; but in no event shall Tenant be entitled to receive any excess of
such net rents over the sums payable by Tenant to Landlord hereunder, nor shall
Tenant be entitled in any suit for the collection of damages pursuant to this
Subsection to a credit in respect of any net rents from a reletting, except to
the extent that such net rents are actually received by Landlord. If the Demised
Premises or any part thereof should be relet in combination with other space,
then proper apportionment on a square foot basis (for equivalent space) shall be
made of the rent received from such reletting and of the expenses of reletting.
If the Demised Premises or any part thereof be relet by Landlord for the
unexpired portion of the term of this lease, or any part thereof, before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting.
54
<PAGE>
27.02 Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this lease would have expired if
it had not been so terminated under the provisions of Article 25, or under any
provision of law, or had Landlord not re- entered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to prove for and obtain as
liquidated damages by reason of the termination of this lease or re-entry on the
Demised Premises for the default of Tenant under this lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved whether or
not such amount be greater, equal to, or less than any of the sums referred to
in Section 27.01.
ARTICLE 28
Waiver
28.01 Tenant, for Tenant, and on behalf of any and all persons claiming
through or under Tenant, including creditors of all kinds, does hereby waive and
surrender all right and privilege which they or any of them might have under or
by reason of any present or future law, to redeem the Demised Premises or to
have a continuance of this lease for the term hereby demised after being
dispossessed or ejected therefrom by process of law or under the terms of this
lease or after the termination of this lease as herein provided.
28.02 In the event that Tenant is in arrears in payment of fixed rent
or additional rent hereunder which continues after any required notice and the
expiration of any applicable grace period, Tenant waives Tenant's right, if any,
to designate the items against which any payments made by Tenant are to be
credited, and Tenant agrees that Landlord may apply any payments made by Tenant
to any items it sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items against which any such payments shall be
credited.
28.03 Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Demised
Premises, including any claim of injury or damage, or any emergency or other
statutory remedy with respect thereto. In the event Landlord commences any
summary proceeding for possession of the Demised Premises, Tenant covenants and
agrees that it will not interpose any counterclaim of any nature or description
in any such proceeding except a mandatory counterclaim or defense that would be
lost if not so interposed.
28.04 The provisions of Articles 17 and 18 shall be considered
expressed agreements governing the services to be furnished by Landlord, and
Tenant agrees that any laws
55
<PAGE>
and/or requirements of public authorities, now or hereafter in force, shall have
no application in connection with any enlargement of Landlord's obligations with
respect to such services unless Tenant agrees, in writing, to pay to Landlord,
as additional rent, Landlord's reasonable charges for any additional services
provided.
28.05 If, at any time during the term of this lease, any requirement of
public authority shall have the effect of limiting, for any period of time, the
amount of the rents payable by Tenant, or receivable by Landlord, under this
lease, and the maximum rents so permitted to be paid by Tenant, or received by
Landlord, hereunder shall be less than the rents herein reserved, then:
(a) throughout the period of limitation, Tenant shall
remain liable for the maximum amount of rents that is lawfully payable; and
(b) if and when the period of limitation ends, the
requirement of public authority imposing such limitation is repealed, or such
limitation is restrained or rendered unenforceable by any order or ruling of a
court of appropriate jurisdiction:
(i) to the extent that the same is not
prohibited by any requirement of public authority, Tenant shall pay to Landlord,
on demand, all amounts that would have been due from Tenant to Landlord during
the period of limitation, but that were not paid because of the requirements of
public authorities; and
(ii) thereafter, Tenant shall pay to
Landlord all of the rents reserved under this lease, all of which shall be
calculated as if there had been no intervening period of limitation.
ARTICLE 29
No Other Waivers Or Modifications
29.01 The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this lease, or to exercise any election herein contained, shall not be construed
as a waiver or relinquishment for the future of the performance of such one or
more obligations of this lease or of the right to exercise such election, but
the same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. No executory agreement hereafter made
between Landlord and Tenant shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this lease, in whole
or in part, unless such executory agreement is in writing, refers expressly to
this lease and is signed by the party against whom enforcement of the change,
modification, waiver, release, discharge or termination or effectuation of the
abandonment is sought.
29.02 The following specific provisions of this Section shall not be
deemed to limit the generality of any of the foregoing provisions of this
Article:
56
<PAGE>
(a) no agreement to accept a surrender of all or any
part of the Demised Premises shall be valid unless in writing and signed by
Landlord. The delivery of keys to an employee of Landlord or of its agent shall
not operate as a termination of this lease or a surrender of the Demised
Premises. If Tenant shall at any time request Landlord to sublet the Demised
Premises for Tenant's account, Landlord or its agent is authorized to receive
said keys for such purposes without releasing Tenant from any of its obligations
under this lease, and Tenant hereby releases Landlord from any liability for
loss or damage to any of Tenant's property in connection with such subletting
except arising out of the negligence or willful act of Landlord or its agent.
(b) the receipt by Landlord of rent with knowledge of
breach of any obligation of this lease shall not be deemed a waiver of such
breach;
(c) no payment by Tenant or receipt by Landlord of a
lesser amount than the correct fixed rent or additional rent due hereunder 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.
ARTICLE 30
Curing Tenant's Defaults, Additional Rent
30.01
(a) if Tenant shall default in the performance of any
of Tenant's obligations under this lease, Landlord, without thereby waiving such
default, may (but shall not be obligated to) perform the same for the account
and at the expense of Tenant, without notice, in a case of emergency, and in any
other case, only if such default continues after the expiration of (i) ten (10)
days from the date Landlord gives Tenant notice of intention so to do, or (ii)
the applicable grace period provided in Section 25.02 or elsewhere in this lease
for cure of such default, whichever occurs later;
(b) if Tenant is late in making any payment due to
Landlord from Tenant under this lease for ten (10) or more days, then interest
shall become due and owing to Landlord on such payment from the date when it was
due computed at the rate of three (3%) percent per annum over the Base Rate as
defined in Section 5.07, but in no event in excess of the maximum legal rate of
interest chargeable in the State of New York.
30.02 Bills for any reasonable expenses incurred by Landlord in
connection with any such performance by it for the account of Tenant, and bills
for all reasonable costs, expenses and disbursements of every kind and nature
whatsoever, including reasonable counsel fees, involved in collecting or
endeavoring to collect the fixed rent or additional rent or any part thereof or
enforcing or endeavoring to enforce any rights against Tenant, under or in
connection
57
<PAGE>
with this lease, or pursuant to law, providing Landlord is the prevailing party
or a settlement is made in favor of Landlord, including any such reasonable
cost, expense and disbursement involved in instituting and prosecuting summary
proceedings, as well as bills for any property, material, labor or services
provided, furnished, or rendered, by Landlord or at its instance to Tenant, may
be sent by Landlord to Tenant monthly, or immediately, at Landlord's option,
and, shall be due and payable in accordance with the terms of such bills, but
not sooner than ten (10) days after delivery. In the event Tenant institutes any
action against Landlord to enforce any rights against Landlord under this lease
or pursuant to law (after Landlord defaults in the observance or performance of
its obligations under this lease and such default continues after any required
notice and the expiration of any applicable cure period) and providing Tenant is
the prevailing party or a settlement is made in favor of Tenant, Tenant shall be
entitled to recover reasonable counsel fees, costs, expenses and disbursements
incurred by Tenant in connection with such action.
ARTICLE 31
Broker
31.01 Landlord and Tenant covenant, warrant and represent that they
have not dealt with any broker or finder concerning the renting of the Demised
Premises to Tenant. Landlord and Tenant agree to hold the other harmless against
any claims for a brokerage commission arising out of any assertion by any broker
or finder that such broker or finder dealt with such indemnifying party with
respect to the renting of the Demised Premises to Tenant. Landlord agrees to pay
any fee or commission owing to the rental agent for the Building in connection
with this lease pursuant to separate agreement.
ARTICLE 32
Notices
32.01 Except for rent bills and emergency repair notices (which may be
hand-delivered or sent via facsimile machine and shall be deemed given upon
receipt) any notice, statement, demand or other communication required or
permitted to be given, rendered or made by either party to the other, pursuant
to this lease or pursuant to any applicable law or requirement of public
authority, shall be in writing (whether or not so stated elsewhere in this
lease) and shall be deemed to have been properly given, rendered or made, if
sent by registered or certified mail, return receipt requested, addressed to the
other party at the address hereinabove set forth (except that after the
Commencement Date, Tenant's address, unless Tenant shall give notice to the
contrary, shall be the Building to the attention of Anthony G. Miller, Chief
Operating Officer), or sent via nationally recognized overnight courier
providing for receipted delivery and shall be deemed to have been given,
rendered or made (a) if so mailed, on the third (3rd) business day after the day
so mailed and (b) if sent via nationally recognized overnight courier, on the
date of receipt or refusal. Either party may, by notice as aforesaid, designate
a different address or addresses for notices, statements, demands or other
communications intended for it.
58
<PAGE>
ARTICLE 33
Estoppel Certificate
33.01 Each party agrees, at any time and from time to time, as
requested by the other party, upon not less than ten (10) days' prior notice, to
execute and deliver to the other a statement certifying (a) that this lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications) and whether any options granted to Tenant pursuant to the
provisions of this lease have been exercised, (b) certifying the dates to which
the fixed rent and additional rent have been paid and the amounts thereof, and
stating whether or not, to the best knowledge of the signer, the other party is
in default in performance of any of its obligations under this lease, and, if
so, specifying each such default of which the signer may have knowledge, it
being intended that any such statement delivered pursuant hereto may be relied
upon by others with whom the party requesting such certificate may be dealing.
Additionally, Tenant's Statement shall contain such other information with
respect to this lease as shall be reasonably required by the holder or proposed
holder of any superior mortgage or the lessor or proposed lessor under any
superior lease.
ARTICLE 34
Arbitration
34.01 Either party may request arbitration of any matter in dispute
wherein arbitration is expressly provided in this lease as the appropriate
remedy. The party requesting arbitration shall do so by giving notice to that
effect to the other party, and both parties shall promptly thereafter jointly
apply to the American Arbitration Association (or any organization successor
thereto) in the City and County of New York for the appointment of a single
arbitrator.
34.02 The arbitration shall be conducted in accordance with the then
prevailing rules of the American Arbitration Association (or any organization
successor thereto) in the City and County of New York. In rendering such
decision and award, the arbitrator shall not add to, subtract from or otherwise
modify the provisions of this lease.
34.03 If for any reason whatsoever a written decision and award of the
arbitrator shall not be rendered within ninety (90) days after the appointment
of such arbitrator, then at any time thereafter before such decision and award
shall have been rendered either party may apply to the Supreme Court of the
State of New York 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.
34.04 All the expenses of the arbitration shall be borne by the parties
equally except that each party shall be responsible for its own legal and
witness fees and expenses.
59
<PAGE>
ARTICLE 35
No Other Representations, Construction,
Governing Law, Consents
35.01 Landlord and Tenant each expressly acknowledge and agree that the
other party has not made and is not making, and it, in executing and delivering
this lease, is not relying upon, any warranties, representations, promises or
statements, except to the extent that the same are expressly set forth in this
lease or in any other written agreement which may be made between the parties
concurrently with the execution and delivery of this lease and shall expressly
refer to this lease. This lease and said other written agreement(s) made
concurrently herewith are hereinafter referred to as the "lease documents". It
is understood and agreed that all understandings and agreements heretofore had
between the parties are merged in the lease documents, which alone fully and
completely express their agreements and that the same are entered into after
full investigation, neither party relying upon any statement or representation
not embodied in the lease documents, made by the other.
35.02 If any of the provisions of this lease, or the application
thereof to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this lease, or the application of such provision
or provisions to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby, and every
provision of this lease shall be valid and enforceable to the fullest extent
permitted by law.
35.03 This lease shall be governed in all respects by the laws of the
State of New York.
35.04 Wherever in this lease Landlord's consent or approval is
required, if Landlord shall refuse such consent or approval, Tenant in no event
shall be entitled to make, nor shall Tenant make, any claim, and Tenant hereby
waives any claim, for money damages (nor shall Tenant claim any money damages by
way of set-off, counterclaim or defense) based upon any claim or assertion by
Tenant that Landlord unreasonably withheld or unreasonably delayed its consent
or approval. Tenant's sole remedies shall be an action or proceeding to enforce
any such provision, for specific performance, injunction or declaratory judgment
or for a determination as to whether Landlord reasonably withheld its consent
pursuant to either (a) the Simplified Procedure For Court Determination of
Disputes as set forth in the CPLR ss 3031 et seq. (or any successor thereto), or
(b) arbitration under the Expedited Procedures provisions (presently Rules 53
through 57, as same may be amended from time to time) of the American
Arbitration Association (or successor thereto) in the City of New York (and the
fees and expenses of such arbitration shall be borne by the unsuccessful party),
and, if Tenant elects either (a) or (b) above, the decision shall be final and
conclusive on the parties.
60
<PAGE>
ARTICLE 36
Parties Bound
36.01 The obligations of this lease shall bind and benefit the
successors and assigns of the parties with the same effect as if mentioned in
each instance where a party is named or referred to, except that no violation of
the provisions of Article 9 shall operate to vest any rights in any successor or
assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 25.
However, the obligations of Landlord under this lease shall not be binding upon
Landlord herein named with respect to any period subsequent to the transfer of
its interest in the Building as owner or lessee thereof and in event of such
transfer said obligations shall thereafter be binding upon each transferee of
the interest of Landlord herein named as such owner or lessee of the Building,
but only with respect to the period ending with a subsequent transfer within the
meaning of this Article.
36.02 Tenant shall look only to Landlord's estate and property in the
Building (or the rents and proceeds thereof) and, where expressly so provided in
this lease, to offset against the rents payable under this lease, for the
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process) requiring the payment of money by Landlord in the event of any
default by Landlord hereunder, and no other property or assets of such Landlord
or any partner, member, officer or director thereof, disclosed or undisclosed
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this lease, the
relationship of Landlord and Tenant hereunder or Tenant's use or occupancy of
the Demised Premises.
ARTICLE 37
Certain Definitions And Construction
37.01 For the purposes of this lease and all agreements supplemental to
this lease, unless the context otherwise requires the definitions set forth in
Exhibit E annexed hereto shall be utilized.
37.02 The various terms which are italicized and defined in other
Articles of this lease or are defined in Exhibits annexed hereto, shall have the
meanings specified in such other Articles and such Exhibits for all purposes of
this lease and all agreements supplemental thereto, unless the context shall
otherwise require.
ARTICLE 38
Adjacent Excavation And Construction;
Shoring; Vaults
38.01 If an excavation or other substructure work shall be made upon
land adjacent to the Demised Premises, or shall be authorized to be made, Tenant
shall afford to the person causing or authorized to cause such excavation,
license to enter upon the Demised
61
<PAGE>
Premises for the purpose of doing such work as shall be necessary to preserve
the wall of 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 or rent.
38.02 No vaults, vault space or area, whether or not enclosed or
covered, not within the property line of the Building is leased hereunder,
anything contained in or indicated on any sketch, blue print or plan or anything
contained elsewhere in this lease to the contrary notwithstanding. Landlord
makes no representation as to the location of the property line of the Building.
All vaults and vault space and all such areas not within the property line of
the Building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public utility, Landlord shall not be subject to
any liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant.
ARTICLE 39
Landlord's Relocation Option
39.01 Landlord shall have the option (hereinafter referred to as
"Landlord's Relocation Option"), exercisable once, at any time during the term
of this lease, upon six (6) months prior written notice to Tenant, to designate
"Relocated Space" (as hereinafter defined) as the Demised Premises, subject,
however, to the following terms and conditions:
(a) Landlord shall exercise Landlord's Relocation
Option by giving Tenant written notice thereof (hereinafter referred to as the
"Relocation Notice");
(b) The Relocation Notice shall include a floor plan
of the space which Tenant shall lease from Landlord in substitution of the
Demised Premises (hereinafter referred to as the "Relocated Space"), and shall
set forth the rentable square foot area thereof (hereinafter referred to as the
"New Area") determined in the same manner as the Demised Premises and which
shall contain not less than 18,378 rentable square feet and which shall be above
the fourth (4th) floor of the Building. Subject to the structural conditions and
the configuration of the floor upon which the Relocated Space is located,
Landlord will use reasonable efforts to configure the Relocation Space as close
as possible to the configuration of the Demised Premises.
39.02 The relocation shall be effected upon the following conditions:
(a) Landlord, at its sole cost and expense, shall
prepare the Relocated Space so as to contain the same equipment, finishes and
installations, including, builtins, as the Demised Premises as same exist on the
date of the exercise of the Relocation Option, (except where structural and
field conditions require a variation from the Demised Premises and
62
<PAGE>
except that if certain materials or equipment utilized in the Demised Premises
are then unavailable, Landlord may substitute materials of equal quality,
subject to Tenant's approval, which approval shall not be unreasonably withheld
or delayed such work is hereinafter referred to as the "Relocation Work").
Prior to commencing the Relocation Work, Landlord shall prepare, at its expense,
plans and specifications therefor and submit same to Tenant for Tenant's
approval, which approval shall not be unreasonably withheld or delayed. In the
event that Tenant fails to respond to any items submitted by Landlord where
Tenant's approval is required pursuant to this subsection (a) within fifteen
(15) days after submission thereof, Tenant's approval as to such items shall be
deemed to have been granted; and
(b) when the Relocation Work has been substantially
completed, Landlord shall, at its sole cost and expense, and upon not less than
twenty (20) days prior written notice to Tenant, relocate Tenant into the
Relocated Space. The Relocation Work shall be deemed substantially complete
notwithstanding the fact that minor or insubstantial details of construction,
mechanical adjustment, or decoration remain to the performed, the noncompletion
of which does not materially interfere with Tenant's use of the Relocation
Space. Landlord shall, promptly, upon notice from Tenant, complete such
uncompleted details. This relocation shall be accomplished in such a manner so
as to create the least practicable interference with Tenant's business
operation. Tenant agrees to cooperate with Landlord in the relocation so as to
enable Landlord to complete the relocation in a minimum amount of time and in a
manner that will minimize interference with Tenant's business operation and
shall sign all applications and documents reasonably required to effectuate such
relocation. All costs and expenses of this relocation, including any overtime
labor costs, shall be borne exclusively by Landlord.
39.03 In the event of the exercise of Landlord's Relocation Option and
upon the written request of either Landlord or Tenant, the parties hereto shall
promptly execute and deliver a supplementary agreement, in recordable form,
confirming (i) the exercise of Landlord's Relocation Option, (ii) the
designation of the Relocated Space as the Demised Premises and the effective
date thereof, and (iii) the New Area and (iv) the modification of Section 1.02
to reflect the New Area and any other modification necessitated by such
relocation, but no delay in, or failure to, execute and deliver such
supplementary agreement shall affect in any manner such exercise or designation.
63
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this lease
as of the day and year first above written.
LANDLORD:
101 PARK AVENUE ASSOCIATES
By: PSK Operating Corporation,
a general partner
By: /s/ 101 Park Avenue Associates
------------------------------
101 Park Avenue Associates
TENANT:
ATALANTA SOSNOFF CAPITAL
CORPORATION
BY: /s/ Martin Sosnoff
---------------------------
Tenant's Employer Identification No.
13-3339071
-------------------------------
64
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 26th day of October, in the year 1999 before me, the
undersigned, a Notary Public in and for said State, personally appeared
Peter S. ___________________, personally known to me or proved to me on the
basis of satisfactory evidence to the be the individual whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
/s/ Barry E. Shimkin
----------------------------------------
Notary Public
BARRY E. SHIMKIN
Notary Public, State of New York
No. O2SH4695245
Qualified in Nassau County
Term Expires February 28, 2000
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 26th day of October, in the year 1999 before me, the
undersigned, a Notary Public in and for said State, personally appeared
Martin T. Sosnoff, personally known to me or proved to me on the basis of
satisfactory evidence to the be the individual(s) whose name(s) is(are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
/s/ Denise Ortiz
----------------------------------------
Notary Public
DENISE ORTIZ
Notary Public - State of New York
No. O1OR5088543
Qualified in Queens County
My Commission Expires Nov. 17, 1999
65
<PAGE>
-----------------------------------
EXHIBIT A
DESCRIPTION
-----------------------------------
ALL that certain lot, piece or parcel of land, situate, lying and being
in the Borough of Manhattan, City, County and State of New York, bounded and
described as follows:
BEGINNING at the corner formed by the intersection of the northerly
side of East 40th Street and the easterly side of Park Avenue; running thence
northerly along the easterly side of Park Avenue 197 feet 6 inches to the
southerly side of East 41st Street; thence easterly along the southerly side of
East 41st Street, 255 feet; thence southerly parallel with the easterly side of
Park Avenue 98 feet 9 inches to the center line of the block; thence easterly
along the center line of the block and parallel with the southerly side of East
41st Street 25 feet; thence southerly parallel with the easterly side of Park
Avenue, 98 feet 9 inches to the northerly side of 40th Street; thence westerly
along the northerly side of East 40th Street, 280 feet to the easterly side of
Park Avenue to the point or place of BEGINNING.
66
<PAGE>
-----------------------------------
EXHIBIT B
FLOOR PLAN
-----------------------------------
(Follows immediately on next page)
67
<PAGE>
6th Floor
Demised Premises
101 Park Avenue
[GRAPHIC OMITTED]
<PAGE>
-----------------------------------
EXHIBIT C
HEATING, VENTILATING AND
AIR-CONDITIONING SYSTEM
-----------------------------------
The existing HVAC System is designed to meet the following criteria:
Summer:Inside ......78(degree)D.B., 50% RH
Outside .....95(degree)D.B., 75% W.B.
Winter:Inside ......68(degree) D.B.
Outside .....5(degree)D.B.
HVAC design based upon interior loads as follows:
Lights and appliances = 3 watts/sq. ft.
Population ..........= one person per 100 sq. ft.
Air Volume ..........= .6 cfm per sq. ft. (interior zone)
68
<PAGE>
-----------------------------------
EXHIBIT D
RULES AND REGULATIONS
-----------------------------------
1. The rights of tenants in the entrances, corridors
and elevators of the Building are limited to ingress to and egress from the
tenants' premises for the tenants and their employees, licensees and invitees,
and no tenant shall use, or permit the use of, the entrances, corridors, or
elevators for any other purpose. No tenant shall invite to the tenant's
premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the entrances,
corridors, elevators and other facilities of the Building by other tenants. Fire
exits and stairways are for emergency use only, and they shall not be used for
any other purpose by the tenants, their employees, licensees or invitees. No
tenant shall encumber or obstruct, or permit the encumbrance or obstruction of
any of the sidewalks, entrances, corridors, elevators, fire exits or stairways
of the Building. The Landlord reserves the right to control and operate the
public portions of the Building and the public facilities, as well as facilities
furnished for the common use of the tenants, in such manner as it deems best for
the benefit of the tenants generally provided that, in all events, the same is
done in a manner consistent with first-class office buildings located in
Manhattan.
2. The Landlord may refuse admission to the Building
outside of ordinary business hours to any person not known to the watchman in
charge or not having a pass issued by Landlord or the tenant whose premises are
to be entered or not otherwise properly identified, and may require all persons
admitted to or leaving the Building outside of ordinary business hours to
register. Any person whose presence in the Building at any time shall, in the
judgment of Landlord, be prejudicial to the safety, character, reputation and
interests of the Building or of its tenants may be denied access to the Building
or may be ejected therefrom. In case of invasion, riot, public excitement or
other commotion, Landlord may prevent all access to the Building during the
continuance of the same, by closing the doors or otherwise, for the safety of
the tenants and protection of property in the Building. The Landlord may require
any person leaving the Building with any package or other object to exhibit a
pass from the tenant from whose premises the package or object is being removed,
but the establishment and enforcement of such requirement shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of the tenant. The Landlord shall, in no way, be
liable to any tenant for damages or loss arising from the admission, exclusion
or ejection of any person to or from the tenant's premises or the Building under
the provisions of this rule. Canvassing, soliciting or peddling in the Building
is prohibited and every tenant shall co-operate to prevent the same.
3. Subject to the terms of this lease, no tenant
shall obtain or accept for use in its premises ice, towel, barbering, boot
blacking, floor polishing, lighting maintenance,
69
<PAGE>
cleaning or other similar services from any persons not authorized by Landlord
in writing to furnish such services, provided that the charges for such services
by persons authorized by Landlord are not excessive. Such services shall be
furnished only at, such hours, in such places within the tenant's premises and
under such reasonable regulations as may be fixed by Landlord. Tenant may
utilize outside caterers selected by it for the furnishing of food and beverages
to the Demised Premises.
4. No lettering, sign, advertisement, notice or
object shall be displayed in or on the windows or doors, or on the outside of
any tenant's premises, or at any point inside any tenant's premises where the
same might be visible outside of such premise, except that the name of the
tenant may be displayed on the entrance door of the tenant's premises, and in
the elevator lobbies of the floors which are occupied entirely by any tenant,
subject to the approval of Landlord as to the size, color and style of such
display. The inscription of the name of the tenant on the door of the tenant's
premises shall be done by Tenant at the expense of the tenant. Listing of the
name of the tenant on the directory boards in the Building shall be done by
Landlord at its expense; any other listings shall be in the discretion of
Landlord. Notwithstanding the foregoing, Tenant's name shall be listed by
Landlord, at its sole cost and expense, on any directory located on the floor on
which the Demised Premises are located.
5. No awnings or other projections over or around the
windows shall be installed by any tenant, and only such window blinds as are
supplied or permitted by Landlord shall be used in a tenant's premises.
Linoleum, tile or other floor covering shall be laid in a tenant's premises only
in a manner approved by Landlord, which approval shall not be unreasonably
withheld or delayed.
6. The Landlord shall have the right to reasonably
prescribe the weight and position of safes and other objects of excessive
weight, and no safe or other object whose weight exceeds the lawful load for the
area upon which it would stand shall be brought into or kept upon a tenant's
premises. If, in the reasonable judgment of Landlord, it is necessary to
distribute the concentrated weight of any heavy object, the work involved in
such distribution shall be done at the expense of Tenant and in such manner as
Landlord shall determine. The moving of safes and other heavy objects shall take
place only outside of ordinary business hours upon previous notice to Landlord,
and the persons employed to move the same in and out of the Building shall be
reasonably acceptable to Landlord and, if so required by law, shall hold a
Master Rigger's license. Freight, furniture, business equipment, merchandise and
bulky matter of any description shall be delivered to and removed from the
premises only in the freight elevators and through the service entrances and
corridors, and only during hours and in a manner reasonably approved by
Landlord. Arrangements will be made by Landlord with any tenant for moving large
quantities of furniture and equipment into or out of the building.
7. In no case (even where the same are of a type so
excepted or as so consented to by Landlord) shall any machines or mechanical
equipment be so placed or operated as to disturb other tenants but machines and
mechanical equipment which may be permitted to be installed and used in a
tenant's premises shall be so equipped, installed and maintained by such
70
<PAGE>
tenant as to prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such premises to any other area of the
Building.
8. No noise, including the playing of any musical
instruments, radio or television, which, in the judgment of Landlord, might
disturb other tenants in the Building, shall be made or permitted by any tenant,
and no cooking shall be done in the tenant's premises, except as expressly
approved by Landlord or as provided in this lease. Nothing shall be done or
permitted in any tenant's premises, and nothing shall be brought into or kept in
any tenant's premises, which would impair or interfere with any of the Building
services or the proper and economic heating, cleaning or other servicing of the
Building or the premises, or the use or enjoyment by any other tenant of any
other premises, nor shall there be installed by any tenant any ventilating, air
conditioning, electrical or other equipment of any kind which, in the reasonable
judgment of Landlord, might cause any such impairment or interference. No
dangerous, inflammable, combustible or explosive object or material shall be
brought into the Building by any tenant or with the permission of any tenant
except as otherwise expressly provided in this lease.
9. No acids, vapors or other materials shall be
discharged or permitted to be discharged into the waste lines, vents or flues of
the Building which may damage them. The water and wash closets and other
plumbing fixtures in or serving any tenant's premises shall not be used for any
purpose other than the purposes for which they were designed or constructed, and
no sweepings, rubbish, rags, acids or other foreign substances shall be
deposited therein.
10. No additional locks or bolts of any kind shall be
placed upon any of the doors or windows in any tenant's premises and no lock on
any door therein shall be changed or altered in any respect. Additional keys for
a tenant's premises and toilet rooms shall be procured only from Landlord, which
may make a reasonable charge therefor. Upon the termination of a tenant's lease,
all keys of the tenant's premises and toilet rooms shall be delivered to
Landlord.
11. All entrance doors in each tenant's premises
shall be left locked and all windows shall be left closed by the tenant when the
tenant's premises are not in use. Entrance doors shall not be left open at any
time.
12. Hand trucks not equipped with rubber tires and
side guards shall not be used within the Building.
13. All windows in each tenant's premises shall be
kept closed and all blinds therein, if any, above the ground floor shall be
lowered when and as reasonably required because of the position of the sun,
during the operation of the Building air-conditioning system to cool or
ventilate the tenant's premises.
71
<PAGE>
14. The Landlord reserves the right to rescind, alter
or waive any rule or regulation at any time prescribed for the Building when, in
its judgment, it deems it necessary, desirable or proper for its best interest
and for the best interests of the tenants, and no alteration or waiver of any
rule or regulation in favor of one tenant shall operate as an alteration or
waiver in favor of any other tenant. The Landlord shall not be responsible to
any tenant for the non-observance or violation by any other tenant of any of the
rules and regulations at any time prescribed for the Building.
15. Notwithstanding anything to the contrary
contained in these rules and regulations, as same may be amended or supplemented
from time to time, in the event of any inconsistency between the terms of these
rules and regulations and the provisions of this lease, the provisions of this
lease shall govern and any inconsistent rule or regulation shall not apply to,
or be enforceable against Tenant, to the extent of such inconsistency.
72
<PAGE>
-----------------------------------
EXHIBIT E
DEFINITIONS
-----------------------------------
(a) The term mortgage shall include an indenture of
mortgage and deed of trust to a trustee to secure an issue of bonds, and the
term mortgagee shall include such a trustee.
(b) The terms include, including and such as shall
each be construed as if followed by the phrase "without being limited to".
(c) The term obligations of this lease, and words of
like import, shall mean the covenants to pay rent and additional rent under this
lease and all of the other covenants and conditions contained in this lease. Any
provision in this lease that one party or the other or both shall do or not do
or shall cause or permit or not cause or permit a particular act, condition, or
circumstance shall be deemed to mean that such party so covenants or both
parties so covenant, as the case may be.
(d) The term Tenant's obligations hereunder, and
words of like import, and the term Landlord's obligations hereunder, and words
of like import, shall mean the obligations of this lease which are to be
performed or observed by Tenant, or by Landlord, as the case may be. Reference
to performance of either party's obligations under this lease shall be construed
as "performance and observance".
(e) Reference to Tenant being or not being hereunder,
or words of like import, shall mean that Tenant is, or is not, as the case may
be, in default in the performance of one or more of Tenant's obligations
hereunder which continues after any required notice and the expiration of any
applicable grace period, or that a condition of the character described in
Section 25.01 has occurred and continues or has not occurred or does not
continue, as the case may be.
(f) References to Landlord as having no liability to
Tenant or being without liability to Tenant, shall mean that (except as
otherwise expressly provided in this lease) 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 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 kind of liability whatsoever against Landlord
under or with respect to this lease or with respect to Tenant's use or occupancy
of the Demised Premises.
(g) The term laws and/or requirements of public
authorities and words of like import shall mean laws and ordinances of any or
all of the Federal,
73
<PAGE>
state, city, county and borough governments and rules, regulations, orders
and/or directives of any or all departments, subdivisions, bureaus, agencies or
offices thereof, or of any other governmental, public or quasi-public
authorities, having jurisdiction in the premises, and/or the direction of any
public officer pursuant to law.
(h) The term requirements of insurance bodies and
words of like import shall mean rules, regulations, orders and other
requirements of the New York Board of Fire Underwriters and/or the New York Fire
Insurance Rating Organization and/or any other similar body performing the same
or similar functions and having jurisdiction or cognizance of the Building
and/or the Demised Premises.
(i) The term repair shall be deemed to include
restoration and replacement as may be necessary to achieve and/or maintain good
working order and condition.
(j) Reference to termination of this lease includes
expiration or earlier termination of the term of this lease or cancellation of
this lease pursuant to any of the provisions of this lease or to law. Upon a
termination of this lease, the term and estate granted by this lease shall end
at 5:00 p.m. of the date of termination as if such date were the date of
expiration of the term of this lease and neither party shall have any further
obligation or liability to the other after such termination (i) except as shall
be expressly provided for in this lease, or (ii) except for such obligation as
by its nature or under the circumstances can only be, or by the provisions of
this lease, may be, performed after such termination, and, in any event, unless
expressly otherwise provided in this lease, any liability for a payment which
shall have accrued to or with respect to any period ending at the time of
termination shall survive the termination of this lease.
(k) The term in full force and effect when herein
used in reference to this lease as a condition to the existence or exercise of
aright on the part of Tenant shall be construed in each instance as including
the further condition that at the time in question no default on the part of
Tenant exists, as would entitle Landlord to terminate this lease or to
dispossess Tenant.
(1) The term Tenant shall mean Tenant herein named or
any assignee or other successor in interest (immediate or remote) of Tenant
herein named, while such Tenant or such assignee or other successor in interest,
as the case may be, is in possession of the Demised Premises as owner of
Tenant's estate and interest granted by this lease and also, if Tenant is not an
individual or a corporation, all of the persons, firms and corporations then
comprising Tenant.
(m) Words and phrases used in the singular shall be
deemed to include the plural and vice versa, and nouns and pronouns used in any
particular gender shall be deemed to include any other gender.
74
<PAGE>
(n) The rule of ejusdem generis shall not be
applicable to limit a general statement following or referable to an enumeration
of specific matters to matters similar to the matters specifically mentioned.
(o) All references in this lease to numbered
Articles, numbered Sections and lettered Exhibits are references to Articles and
Sections of this lease, and Exhibits annexed to (and thereby made part of) this
lease, as the case may be, unless expressly otherwise designated in the context.
(p) The term "control" shall mean ownership of more
than fifty (50%) percent of all the voting stock of a corporation or more than
fifty (50%) percent of all the legal and equitable interest in any other entity.
(q) The term "Base Rate" shall mean the prime rate of
The Chase Manhattan Bank (or Citibank, N.A. if The Chase Manhattan Bank shall
not then have an established prime rate; or the prime rate of any major banking
institution doing business in New York City, as selected by Landlord, if none of
the aforementioned banks shall be in existence or have an established prime
rate) at the time of in question.
75
<PAGE>
-----------------------------------
EXHIBIT F
CLEANING SPECIFICATIONS
-----------------------------------
1. General:
All linoleum, rubber, asphalt tile and other similar types of flooring
(that may be waxed) to be swept nightly, using approved dust-check type of mop.
All carpeting and rugs to be carpet swept nightly and vacuum cleaned
weekly.
Hand dust and wipe clean all furniture, fixtures and window sills
nightly; wash sills when necessary.
Empty and clean all waste receptacles nightly and remove waste paper
and waste materials.
Empty and clean all ash trays and screen all sand urns nightly
including all ash trays in all toilets.
Dust interior of all waste disposal cans and baskets nightly; damp-dust
as necessary.
Wash clean all water fountains and coolers nightly.
Hand dust all door and other ventilating louvres within reach, as
necessary.
Dust all telephones as necessary.
Sweep all private stairway structures nightly.
2. Lavatories in the Core:
Sweep and wash all lavatory floors nightly using proper disinfectants.
Wash and polish all mirrors, powder shelves, bright work and enameled surfaces
in all lavatories nightly.
Scour, wash and disinfect all basins, bowls and urinals throughout all
lavatories, nightly.
Wash all toilet seats, nightly.
76
<PAGE>
Empty paper towel receptacles and transport wastepaper to designated
area in basements, nightly (towels, soap and receptacles to be furnished by
Tenant).
Fill toilet tissue holders nightly.
Empty sanitary disposal receptacles, nightly.
Thoroughly wash and polish all wall tile and stall surface as often as
necessary.
3. High Dusting:
Dust all venetian blinds, frames, charts, graphs and similar wall
hangings and vertical surfaces not reached in nightly cleaning, quarterly.
Cleaning of light fixtures shall be for account of Tenant.
4. Glass:
Exterior windows to be cleaned inside and outside approximately once
every 10 weeks, weather permitting.
5. Conditions:
As herein used "nightly" means five nights a week, Monday through
Friday, during regular cleaning hours (between 6:00 P.M. and 6:00 A.M.) and
excludes legal and union holidays.
Tenant will pay for electricity, power and hot and cold water in the
Demised Premises for cleaning during the regular cleaning hours which are after
hours.
77
<PAGE>
-----------------------------------
EXHIBIT G
CERTIFICATE OF OCCUPANCY
-----------------------------------
(Follows immediately on next page)
78
<PAGE>
THE CITY OF NEW YORK
[SEAL] DEPARTMENT OF BUILDINGS ALT#1378/87
CERTIFICATE OF OCCUPANCY AMENDED
BOROUGH MANHATTAN DATE: APRIL 19, 1988 NO. 9209 92023
This certificate amends C.O. No. 85227 ZONING DISTRICT C5-3 MID
C5-2.5
THIS CERTIFIES that the altered building premises located at 101-103 Park Avenue
E.S. Between East 40th Street - N - East Block 1295 Lot 1
CONFORMS SUBSTANTIALLY TO THE APPROVED PLANS AND SPECIFICATIONS AND TO THE
REQUIREMENTS OF ALL APPLICABLE LAWS, RULES, AND REGULATIONS FOR THE USES AND
OCCUPANCIES SPECIFIED HEREIN
41st Street
<TABLE>
<CAPTION>
PERMISSIBLE USE AND OCCUPANCY
=======================================================================================================
illegible ille ille ille illegible illegible
STORY gible gible gible DESCRIPTION OF USE
=======================================================================================================
<S> <C> <C> <C> <C> <C>
2nd Sub-Cellar 50,75 360 6 B-2 Storage, mechanical
O.G. E equipment, parking for 124
motor vehicles, bldg.
maintenance office and work
room
Sub-Cellar 100 360 6 B-2 Storage, mechanical equipment
locker rooms, restaurant
E laundry and offices
Cellar 100 720 6 C Retail sales, UG6 storage,
loading dock
E lower lobby
F-4 eating and drinking
establishment use group 6
B-2 mechanical equipment room
fire pump room, meter rooms
100 300 6 F-4 eating and drinking
establishment use group 6
1st Floor 100 450 6 C Offices, stores, use group
E lobby, eating and drinking
F-4 establishment, use group 6
bank, use group 6
2nd to 6th 50,75ea. 360ea 6 E Offices
Floors
Inclusive
7th Floor 75 360 6 B-2 Mechanical equipment room,
E offices
8th to 10th 50, 240ea. 6 E Offices
Floors 75ea.
Inclusive
11th Floor 50,75 240 6 E Offices
F-4 employees' cafeteria
12th to 50,75ea 240ea. 6 E Offices
13th, Incl. Floors
=======================================================================================================
(CONTINUED)
</TABLE>
OPEN SPACE USES
----------------------------------------------------------------
(SPECIFY PARKING SPACES, LOADING BERTHS, OTHER USES, NONE)
================================================================
M.G. NO CHANGES OF USE OR OCCUPANCY SHALL BE MADE UNLESS
A NEW AMENDED CERTIFICATE OF OCCUPANCY IS OBTAINED
THIS CERTIFICATE OF OCCUPANCY IS ISSUED SUBJECT TO FURTHER LIMITATIONS,
CONDITIONS AND SPECIFICATIONS NOTED ON THE REVERSE SIDE.
/s/ illegible /s/ illegible
- ------------------------------------- ----------------------------------------
BOROUGH SUPERINTENDENT COMMISSIONER
/ / ORIGINAL / / OFFICE COPY-DEPARTMENT OF BUILDINGS / / COPY
<PAGE>
THE CITY OF NEW YORK
[SEAL] DEPARTMENT OF BUILDINGS ALT#1378/87
CERTIFICATE OF OCCUPANCY AMENDED
BOROUGH MANHATTAN DATE: APRIL 19, 1988 NO. 92023
This certificate amends C.O. No. 85227 ZONING DISTRICT C5-3 MID
C5-2.5
THIS CERTIFIES that the altered building premises located at 101-103 Park Avenue
E.S. Between East 40th Street - N - East Block 1295 Lot 1
CONFORMS SUBSTANTIALLY TO THE APPROVED PLANS AND SPECIFICATIONS AND TO THE
REQUIREMENTS OF ALL APPLICABLE LAWS, RULES, AND REGULATIONS FOR THE USES AND
OCCUPANCIES SPECIFIED HEREIN
41st Street
PERMISSIBLE USE AND OCCUPANCY
================================================================================
ille ille ille ille ille ille
STORY gible gible gible gible gible gible Description of Use
================================================================================
14th Floor 50,75 240 6 E Offices and meeting
rooms
15th to 45th 50,75 240 6 E Offices
Floors inclusive each each
46th Floor 75 240 6 B-2 Mechanical equipment
room
NEW CODE
NOTE: City planning commission Cal. No. 0820267 ZSM special permit granted to
operate 124 space Public Parking Garage.
-----------------------------------------------------
THIS CERTIFICATE OF OCCUPANCY ___________________
_________ THE BUILDING IN ACCORDANCE WITH THIS _____
OF THE DEPARTMENT _________________________________
-----------------------------------------------------
================================================================================
OPEN SPACE USES
----------------------------------------------------------------
(SPECIFY PARKING SPACES, LOADING BERTHS, OTHER USES, NONE)
================================================================
M.G. NO CHANGES OF USE OR OCCUPANCY SHALL BE MADE UNLESS
A NEW AMENDED CERTIFICATE OF OCCUPANCY IS OBTAINED
THIS CERTIFICATE OF OCCUPANCY IS ISSUED SUBJECT TO FURTHER LIMITATIONS,
CONDITIONS AND SPECIFICATIONS NOTED ON THE REVERSE SIDE.
/s/ illegible /s/ illegible
- ------------------------------------- ----------------------------------------
BOROUGH SUPERINTENDENT COMMISSIONER
/ / ORIGINAL / / OFFICE COPY-DEPARTMENT OF BUILDINGS / / COPY
<PAGE>
EXHIBIT 10.33
ATALANTA/SOSNOFF CAPITAL CORPORATION (AND SUBSIDIARIES)
AMENDED AND RESTATED
MANAGEMENT INCENTIVE PLAN
FOR THE
FIVE YEARS ENDING DECEMBER 31, 2003
WHEREAS, in December 1992, the Board of Directors of Atalanta/Sosnoff
Capital Corporation and its direct and indirect subsidiaries (the "Company")
adopted a Management Incentive Plan (the "Original Plan") effective January 1,
1993 for the senior executive officers of the Company and identified the
participants therein for the three years ended December 31, 1995, subject to,
and upon the recommendation and approval of, the Compensation Committee (the
"Committee") of the Board of Directors, composed of the then two non-employee
directors, Messrs. Kenneth H. Iscol and Thurston Twigg-Smith, (the "Outside
Directors") and Martin T. Sosnoff, Chairman of the Board;
WHEREAS, the Compensation Committee duly recommended and approved the
Original Plan in January 1993 and reported its recommendation and approval of
the Original Plan to the stockholders of the Company in its Report included in
the proxy statement of the Company furnished to stockholders in connection with
the 1993 Annual Meeting of Stockholders of the Company and the Company described
the Original Plan in that proxy statement;
WHEREAS, subsequent to the adoption by the Board and the approval by the
Committee of the Original Plan, the Omnibus Budget Reconciliation Act of 1993
(the "Act") became law. Effective for fiscal years beginning on or after January
1, 1994, the Act denies deductions for federal income tax purposes for
compensation in excess of $1,000,000 per year to the chief executive officer and
to any of the four other most highly compensated officers, unless such
<PAGE>
compensation is excluded from the deduction limitation. Compensation under the
Original Plan was excluded from the deduction limitation since (i) the
performance goals were established by a compensation committee consisting solely
of two or more outside directors (a Compensation Sub-Committee was established
for that purpose (the "Compensation Sub-Committee")), (ii) the material terms
under which the compensation was to be paid, including the performance goals,
were disclosed to and approved by stockholders of the Company in a separate
vote, and (iii) prior to payment, the Compensation Sub-Committee certified that
the performance goals and any other material terms were in fact satisfied. The
Act also provides that stockholder approval and certification by the
Compensation Sub-Committee as described above must be made conditions to the
right of the executive to receive the performance based compensation. To comply
with the provisions of the Act to qualify the compensation payable to certain
executives under the Management Incentive Plan as performance based compensation
eligible for exclusion from the deduction limit, the Management Incentive Plan
as amended and restated was submitted to the stockholders for approval at the
1994 Annual Meeting of Stockholders. Consistent with the Act, the approval by
stockholders and certification by the Compensation Sub-Committee were made
conditions to the rights of a participant to receive any benefits under the
Management Incentive Plan with respect to fiscal years of the Company beginning
after December 31, 1993;
WHEREAS, subsequent to its initial restatement, pursuant to its
recommendation and adoption by the Compensation Sub-Committee and the approval
of the Board of Directors, subject to stockholder approval, the Original Plan
was amended on July 29, 1996 (the "First Amendment") to change the method of
allocating Bonuses from the Annual Award Pool and the identity of the
Participants therein for the three years ended December 31, 1998 and the First
2
<PAGE>
Amendment was duly approved by stockholders at the 1996 Annual Meeting of
Stockholders;
WHEREAS, pursuant to its recommendation and adoption by the Compensation
Sub-Committee and the approval of the Board of Directors on March 10, 1999 and,
subject to stockholder approval received at the 1999 Annual Meeting of
Stockholders, the Original Plan, as restated, and as amended by the First
Amendment, was amended and restated by the Second Amendment for the five years
ending December 31, 2003.
WHEREAS, pursuant to its recommendation and adoption by the Compensation
Sub-Committee and the approval of the Board of Directors of the Company on
February 9, 2000 and, subject to stockholder approval to be sought at the 2000
Annual Meeting of Stockholders, the Original Plan, as restated, and as
previously amended by the First and Second Amendments, has been amended and
restated as provided herein for the five years ended December 31, 2003. (The
Original Plan as previously restated, and as amended by the First and Second
Amendments and, as amended and restated as provided herein is referred to herein
as the "Plan".);
WHEREAS, the purpose of setting forth the Plan herein is to confirm the
terms of the Plan as adopted by the Board of Directors and recommended and
approved by the Compensation Sub-Committee for the five years ending December
31, 2003; and
WHEREAS, a Compensation Sub-Committee of the Compensation Committee
consisting of two outside directors has established the performance goals set
forth in the Plan, and has approved and adopted the Plan and recommended its
approval by the stockholders of the Company.
3
<PAGE>
Section 1. Purpose. The purpose of the Company's Plan is to provide a
stimulus to Participants to a continuing high level of commitment to further
improvement in the financial performance of the Company by giving them a direct
interest in the financial performance of the Company through basing incentive
compensation on exceeding base year adjusted operating earnings and relevant
benchmarks in investment performance. There are hereby established under the
Plan an Operating Earnings Component and an Investment Performance Component of
the Plan.
Section 2. Term. Subject to stockholder approval, pursuant to Section 10,
the Plan shall be effective as of January 1, 1999 (the "Effective Date"), except
as otherwise set forth herein, and shall be applicable for each of the five
fiscal years of the Company during the period ending December 31, 2003, unless
amended or terminated by the Company pursuant to Section 9.
Section 3. Coverage. For purposes of the Plan, the term "Participant"
shall include the senior executive officers of the Company serving as such at
any time during the fiscal year who are selected by the Compensation
Sub-Committee. As used herein, the term "Company" includes both the Company and
its direct and indirect subsidiaries, unless the context otherwise requires. The
Participants for the five fiscal years during the period ending December 31,
2003 were determined by the Compensation Sub-Committee and have been approved by
the Board of Directors and stockholders of the Company and their names and
titles and the Annual Award Pool in which they participate, and the inception
date thereof, are set forth on Exhibit A annexed hereto.
Section 4. Annual Award Pool.
4
<PAGE>
4.1. For each fiscal year of the Company, each Participant shall be
entitled to receive a bonus award (a "Bonus") payable from an annual award pool
in which he participates, in an amount determined as provided in Section 5. For
each fiscal year, each Participant who was not a full year Participant shall be
entitled to a Bonus for such fiscal year to the extent set forth in Section 5.2
hereof. The annual award pools (each an "Annual Award Pool") shall consist of an
Operating Earnings Pool (the "Earnings Pool") in the Operating Earnings
Component of the Plan and two pools: an Investment Performance Pool (the
"Performance Pool") measured by the investment performance of the Company's
proprietary accounts, and a Sabre Pool (the "Sabre Pool") measured by the
Company's earnings from the management of Sabre Partners, L.P. and by the
performance of the Company's investment in that partnership in the Investment
Performance Component of the Plan.
4.2. The Earnings Pool, the Performance Pool and the Sabre Pool for each
fiscal year shall be determined and paid as soon as practicable after the end of
such fiscal year of the Company and in no event later than 45 days thereafter
and shall be an amount determined as follows:
(a) The Earnings Pool
(i) If the Company's Adjusted Operating Earnings as defined in
Section 4.2(a)(iii) hereof for the fiscal year in which an Earnings Pool is to
be computed hereunder (the "Computation Year") exceeds the level of Adjusted
Operated Earnings achieved in fiscal year 1998 of $5,996,000 (the "Base Year"),
then subject to the limitation set forth in subsection (ii) hereof, the Earnings
Pool shall be an amount equal to the positive difference, if any, between
Adjusted Operating Earnings in the Computation Year and the Base Year
5
<PAGE>
multiplied by fifty percent (50%).
(ii) In no event shall the Earnings Pool as determined in
accordance with subsection (a) hereof exceed an amount which when subtracted
from the consolidated earnings of the Company would result in the reduction of
net earnings per share by more than ten percent 10%.
(iii) For purposes of this Plan, the "Adjusted Operating
Earnings" for a fiscal year shall be the consolidated operating earnings of the
Company and its subsidiaries, determined in accordance with generally accepted
accounting principles, plus amounts paid or accrued with respect to amounts
payable (A) under the Restricted Stock Bonus Plan of the Company, (B) under the
1996 Long Term Incentive Plan of the Company, (C) under this Plan, (D) as a
result of acquisitions, and (E) such other amounts paid, payable, accrued and/or
chargeable to operating income as the Sub-Committee shall determine in its
discretion should not be deducted from revenues for purposes of the Plan. By way
of example, but not limitation, the Sub-Committee has determined that amounts
chargeable to compensation expense in the acquisition of the business of William
M. Knobler should be added as an adjustment to operating earnings for purposes
of the Plan.
(b) The Performance Pool
(i) The Performance Pool for each fiscal year (a "Computation
Year") during which the Plan is in effect shall be computed by determining the
investment performance of the Company's proprietary accounts, consisting of
cash, cash equivalents, investments at market and investments in Company
sponsored investment companies and limited partnerships (referred to herein as
the "Account") in such Computation Year and comparing it to the
6
<PAGE>
performance of the Standard & Poors 500 Index (the "Benchmark") for such
Computation Year. The Investment Pool shall be an amount equal to twenty percent
(20%) of the positive difference, if any, by which the investment performance of
the Account in any Computation Year exceeds the Benchmark, multiplied by the
average market value of the Account during such Computation Year, provided,
however, that no amount shall be credited to the Performance Pool unless the
investment performance of the Account is positive. By way of example of the
foregoing, if (A) the Account had an average market value of $100 million during
the Computation Year, (B) the investment performance of the Account was 10%, and
(C) the Benchmark's performance was 8% in the Computation Year, then the
positive difference of 2% in performance would be multiplied by 20% and the
product of 0.4% would be multiplied by the average market value of the Account
during the Computation Year, resulting in a Performance Pool of $400,000.
(ii) In no event shall the Performance Pool, as determined in
accordance with subsection (b) hereof, considered separately from the Earnings
Pool and without aggregation with it, exceed an amount which when subtracted
from the consolidated earnings of the Company would result in the reduction of
net earnings per share by more than ten percent (10%).
(c) The Sabre Pool
(i) The Sabre Pool for each fiscal year (a "Computation Year")
during which the Plan is in effect shall be based upon the pre-tax operating
earnings of Sabre Partners, L.P. and the performance of the Company's investment
in the Partnership and shall be computed by determining:
(A) the investment performance of the Company's investment
in
7
<PAGE>
the Partnership (the "Sabre Account") in such Computation Year and comparing
it to the performance of the Standard & Poors 500 Index (the "Benchmark") for
such Computation Year. The Sabre Pool shall be credited with an amount equal to
twenty percent (20%) of the positive difference, if any, by which the investment
performance of the Sabre Account in any Computation Year exceeds the Benchmark,
multiplied by the average market value of the Account during such Computation
Year, provided, however, that no amount shall be credited to the Sabre Pool
unless the investment performance of the Account is positive. By way of example
of the foregoing, if (x) the Sabre Account had an average market value of $25
million during the Computation Year, (y) the investment performance of the
Account was 30%, and (z) the Benchmark's performance was 20% in the Computation
Year, then the positive difference of 10% in performance would be multiplied by
20% and the product of 2.0% would be multiplied by the average market value of
the Sabre Account during the Computation Year, resulting in a performance Pool
of $500,000
(B) the pre-tax operating profits earned by the Company
(the "Net Profit") (exclusive of any income earned on its investment in the
Partnership) in such Computation Year and multiplying the Net Profit by fifty
percent. The product of such calculation shall be credited to the Sabre Pool,
and
(C) the sum of the amounts credited to the Sabre Pool
pursuant to subparagraphs (A) and (B) of this subsection (c) of Section 4 hereof
which shall constitute the Sabre Pool for the Computation Year.
(ii) In no event shall the Sabre Pool, as determined in
accordance with subsection (c), paragraph (i) hereof, considered separately from
the Earnings Pool and
8
<PAGE>
Performance Pool and without aggregation with them, exceed an amount which when
subtracted from the consolidated earnings of the Company would result in the
reduction of Net Earnings per share by more than ten percent (10%).
Section 5. Allocations.
5.1. A Bonus shall be allocated to each Participant from the Annual Award
Pool in which he participates in the percentages assigned to such Participant in
Exhibit A.
5.2. Notwithstanding anything in this Plan to the contrary, any
Participant who ceases to be an employee of the Company for any reason (other
than death or disability) prior to the end of a fiscal year shall not be
entitled to a Bonus with respect to such year. If such Participant ceased to be
an employee of the Company by reason of death or disability prior to fiscal
year-end then a Bonus shall be allocated to such Participant for the full fiscal
year.
5.3. The Compensation Sub-Committee may elect as to any or all of the
Participants to pay to any such Participant a portion of such Participant's
Bonus in shares of Common Stock, par value $.01 per share, of the Company valued
by the Compensation Sub-Committee as it shall determine in its discretion based
on the market value at the date of the issuance of such stock to such
Participant, the average market value thereof for an appropriate period prior to
such issuance, and taking into account, as it shall deem appropriate, the
non-marketability, of such stock or book value as determined in accordance with
generally accepted accounting principles, at the time of issuance provided,
however, that any proposed discount from market value for the Common Stock as so
determined to take account of such non-marketability, resulting in an increase
in the number of shares of the Common Stock issuable to any such Participant
shall not be taken if, upon advice of counsel, the Compensation Sub-Committee
determines that such
9
<PAGE>
discount would constitute an impermissible exercise of discretion by the
Compensation Sub-Committee increasing any such Participant's Bonus and resulting
in any portion of such Participant's compensation under the Plan not being
qualified performance based compensation deductible by the Company for federal
income tax purposes under Section 162(m) of the Internal Revenue Code of 1986,
as amended. In no event shall Company Common Stock issued to any such
Participant as so valued represent more than 25% of the value of such
Participant's Bonus for any fiscal year. The Participant shall acknowledge that
the disposition of any Common Stock awarded as a Bonus is subject to restriction
under federal and state securities laws and shall agree to such other
restrictions as the Compensation Sub-Committee may impose as a condition to the
issuance of such stock. The Compensation Sub-Committee may determine that
payment of a portion of the Bonuses shall be deferred, the periods of such
deferrals and the interest, if any, to be paid in respect to deferred payments.
The Compensation Sub-Committee may also define such other conditions of payment
of Bonuses as it may deem desirable in carrying out the purposes of the Plan.
Any Participant, prior to December 1 of any Computation Year, may elect to defer
receipt of his Bonus for such period, not exceeding ten years, as he shall
determine.
5.4 The aggregate Bonuses awarded for any year shall not exceed the
applicable Annual Award Pool for such year, including amounts awarded to
Participants who were not employees of the Company for the entire fiscal year.
In any fiscal year, any balance in any Annual Award Pool attributable to a
forfeiture of Bonus under Section 5.3 as a result of a Participant ceasing to be
an employee during such year (collectively, "Unawarded Bonuses"), or any portion
thereof, shall be distributed among all remaining Participants in proportion to
their respective shares.
10
<PAGE>
Section 6. Administration and Interpretation. The Plan shall be
administered by the Compensation Sub-Committee, which shall have the sole
authority to make rules and regulations for the administration of the Plan. The
interpretations and decisions of the Compensation Sub-Committee with regard to
the Plan shall be final and conclusive. The Compensation Sub-Committee may
request advice or assistance or employ such persons (including, without
limitation, legal counsel and accountants) as it deems necessary for the proper
administration of the Plan.
Section 7. Administrative Expenses. Any expense incurred in the
administration of the Plan shall be borne by the Company out of its general
funds and not charged against the Annual Award Pool, except insofar as such
expenses shall be taken into account in determining Adjusted Operating Earnings
hereunder.
Section 8. Amendment or Termination.
(a) The Compensation Sub-Committee of the Company may from time to
time amend the Plan in any respect or terminate the Plan in whole or in part
(and shall terminate the Plan upon the happening of an event described in
subsection (b) hereof), provided, however, that no such action shall
retroactively impair or otherwise adversely affect the rights of any Participant
to benefits under the Plan which have accrued prior to the date of such action
and, provided, further, that no amendment to the Plan shall effect a change in
the material terms thereof which would result in any portion of a Bonus made
hereunder not being deductible for federal income tax purposes under Section
162(m) of the Internal Revenue Code of 1986, as amended.
(b) The Plan shall be terminated upon a "change in control" as
defined herein.
11
<PAGE>
For the purposes hereof a change in control shall mean:
(i) a change in the majority of the Board of Directors so that
a majority of its members are comprised of persons not nominated by existing
members of the Board of Directors;
(ii) consummation of a transaction or series of transactions
as a result of which persons who currently own 50% of the outstanding common
stock of the Company cease to own 50% thereof; or
(iii) the Company shall cease to have a class of equity
securities registered pursuant to Sections 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended.
Section 9. No Assignment. The rights of a Participant hereunder, including
without limitation the right to receive a Bonus, shall not be sold, assigned,
transferred, encumbered or hypothecated by a Participant (except by testamentary
disposition or intestate succession), and during the lifetime of any recipient
any payment of a Bonus shall be payable only to such recipient.
Section 10. Stockholder Approval. This Plan shall be subject to approval
by an affirmative vote of the stockholders of the Company holding a majority of
the Common Stock of the Company outstanding at the 2000 Annual Meeting of
Stockholders with respect to all Bonuses accrued on or after January 1, 2000,
and such stockholder approval shall be a condition to the right of a Participant
to receive any such Bonus hereunder.
Section 11. Certification by Compensation Sub-Committee. As a condition to
the right of a Participant to receive any Bonus under this Plan for fiscal years
beginning after
12
<PAGE>
December 31, 1998 the Compensation Sub-Committee shall first be required to
certify, by written resolution of the Compensation Sub-Committee or other
appropriate written certification, that the performance goals set forth in
Section 4.2 have been satisfied and that the applicable Annual Award Pool and
the Bonus for each Participant has been accurately determined in accordance with
the provisions of this Plan.
Section 12. No Preclusion. Nothing in the Plan shall preclude the Board of
Directors of the Company, or any Committee or Sub-Committee of the Board
thereunto duly authorized, where circumstances warrant, from making
discretionary bonus payments to any of the Participants or to any other employee
of the Company, not made pursuant hereto.
Date Adopted: February 9, 2000
Date Approved
by Stockholders: ______________
<PAGE>
EXHIBIT 11
ATALANTA/SOSNOFF CAPITAL CORPORATION AND SUBSIDIARIES
COMPUTATIONS OF EARNINGS PER SHARE
FOR THE YEARS ENDED DECEMBER 31, 1999, 1998 AND 1997
<TABLE>
<CAPTION>
1999 1998 1997
------------ ----------- ------------
EARNINGS:
<S> <C> <C> <C>
Net income $ 17,564,232 $ 7,783,518 $ 9,849,373
============ =========== ============
BASIC EARNINGS PER SHARE:
Shares - weighted average number of common
shares outstanding 9,192,066 9,571,711 9,037,469
============ =========== ============
BASIC EARNINGS PER SHARE $ 1.91 $ .81 $ 1.09
============ =========== ============
DILUTIVE EARNINGS PER SHARE:
Common stock equivalents - options 8,406 10,926 50,936
============ =========== ============
SHARES - WEIGHTED AVERAGE NUMBER OF
COMMON SHARES AND COMMON EQUIVALENT
SHARES OUTSTANDING 9,200,472 9,582,637 9,088,405
============ =========== ============
DILUTIVE EARNINGS PER SHARE $ 1.91 $ .81 $ 1.08
============ =========== ============
ANTIDILUTIVE SHARES AS OF DECEMBER 31, 1999 200,000 150,000 -
============ =========== ============
</TABLE>
S-1
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM REGISTRANTS
ANNUAL REPORT ON FORM 10K AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE
FINANCIAL STATEMENTS IN SUCH REPORT.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 4,388
<SECURITIES> 93,638
<RECEIVABLES> 4,314
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 102,340
<PP&E> 2,130
<DEPRECIATION> (700)
<TOTAL-ASSETS> 123,623
<CURRENT-LIABILITIES> 21,848
<BONDS> 0
0
0
<COMMON> 91
<OTHER-SE> 101,685
<TOTAL-LIABILITY-AND-EQUITY> 123,623
<SALES> 18,270
<TOTAL-REVENUES> 51,076
<CGS> 0
<TOTAL-COSTS> 20,057
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 31,018
<INCOME-TAX> 13,454
<INCOME-CONTINUING> 17,564
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 17,564
<EPS-BASIC> 1.91
<EPS-DILUTED> 1.91
</TABLE>
