SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934 (FEE REQUIRED).
FOR THE FISCAL YEAR ENDED OCTOBER 31, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR
15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 (FEE REQUIRED).
For the transition period from___________to___________
Commission file number: 000-17468
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GREENSTONE ROBERTS ADVERTISING, INC.
(Exact name of Company as specified in its charter)
NEW YORK 11-2250305
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
401 BROADHOLLOW ROAD
MELVILLE, NEW YORK 11747
(Address of principal executive offices) (Zip Code)
(516) 249-2121
Company's telephone number, including area code
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SECURITIES REGISTERED PURSUANT TO SECTION 12 (B) OF THE ACT: NONE.
SECURITIES REGISTERED PURSUANT TO SECTION 12 (G) OF THE ACT:
COMMON STOCK, PAR VALUE $.01 PER SHARE
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(Title of Class)
Indicate by check mark whether the Company (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 Company 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 Company'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]
State the aggregate market value of the voting stock held by non-investee
companies of the Company. The aggregate market value shall be computed by
reference to the price at which the stock was sold, or the average bid and asked
prices of such stock, as of a specified date within 60 days prior to the date of
filing.
$341,568 AS OF JANUARY 5, 1999
Indicate the number of shares outstanding of each of the Company's classes of
common stock, as of the latest practicable date.
COMMON STOCK, $0.01 PAR VALUE -- 743,277 SHARES
(AS OF JANUARY 5, 1999)
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the definitive proxy statement for the Company's 1999 Annual Meeting
of Shareholders will be incorporated into Part III of this Form 10-K.
PART I
ITEM 1. BUSINESS.
GENERAL
The Company was incorporated under the laws of the State of New York on February
25, 1972 under the name Greenstone Ad Agency, Inc. and subsequently changed its
name to Greenstone & Rabasca Advertising, Inc. On December 16, 1988, the Company
amended its Certificate of Incorporation to increase the number of shares of
common stock authorized to 30,000,000, par value $.01 per share, and to change
its name to Greenstone Rabasca Roberts, Inc. Its stock was first sold to the
public on February 13, 1989. At their annual meeting on April 5, 1991, the
Company's shareholders approved the Company's name change to Greenstone Roberts
Advertising, Inc. On July 29, 1997 the Company filed an amendment to its
Certificate of Incorporation with the New York Secretary of State as a result of
a reverse one-for-ten stock split.
The Company is a full service advertising agency which analyzes and provides
advertising for its clients, and plans and creates advertising for dissemination
through various media such as television, radio, newspapers, magazines and
billboards. The Company has developed expertise in such related areas of
marketing, consultation, direct mail advertising, market and product research,
design and production of merchandising and sales promotion programs and
materials, corporate identification, and public relations. The Company creates
an advertising program within the limits imposed by the client's advertising
budget or its annual retainer. The Company's commission for advertising services
is generally 15% of the gross charge (commonly referred to as "billings") for
purchasing advertising space or time. This is consistent with the industry
average.
The Company maintains its operations in Long Island, New York. On July 15, 1998
the Company closed its Florida operation, due primarily to the loss of several
significant customers of the Florida office. The Company does not believe that
the closing of the Florida office will have an adverse effect on its financial
condition and results of operations. In addition, as of October 31, 1998, the
Company has fully amortized its 49% equity interest in The Gothard Group
("Gothard") a Miami-based public relations agency. In July 1998, the Company
filed a lawsuit against Gothard seeking among other things, damages under a
certain management agreement and repayment of certain loans made by the Company
to Gothard. In December 1998, Gothard filed for Chapter 7 protection and all
assets were placed in trust. During 1998, the Company advanced Gothard
approximately $126,000, and as of October 31, 1998 was owed $186,000 for
advances of monies and $126,000 in accounts receivable. In connection with
Gothard filing for Chapter 7, the Company, in the fourth quarter, fully reserved
approximately $126,000 of accounts receivable and the $186,000 of advances due
from Gothard. Also for the year ended October 31, 1998, the Company has recorded
an equity loss of $66,258 representing its proportionate share of Gothard's
losses up to the Company's remaining investment in Gothard. No additional loss
of Gothard will be recognized as the Company has no plans to support the
operations of Gothard. Any monies recovered by the Company from Gothard will be
recorded as Other Income.
The Company believes, based on management's knowledge of and experience in the
market, that it is one of the largest advertising agencies on Long Island, New
York in terms of commissions and fee revenues. The Company's success in these
areas is based on its established reputation and expertise in representing
clients in businesses such as vitamins, minerals and nutritional supplements,
personal care and food products, computer hardware and software, financial
services, telecommunication services, cleaning and safety products, healthcare
and education. In the past fifteen years, the Company has received many of the
advertising industry's most recognized awards including ANDY's, CLIO's and ONE
SHOW's. Also in the past fifteen years, the Company has received in excess of
one hundred "Best on Long Island" awards for its creativity in advertisements
and collateral materials. The strategy of the Company is to concentrate on
servicing medium and large accounts that are seeking the personalized service,
attention and continuity of relationships with top management and creative
personnel that the Company offers and that larger advertising firms based in
major metropolitan areas are not always able to provide. The Company plans to
continue to expand its business by focusing on such accounts and through
possible acquisitions of other advertising agencies on Long Island, and in other
east coast markets.
SOLICITATION OF NEW BUSINESS
The Company has been in business for 26 years and believes it is well known in
the Long Island marketplace. The Company generally obtains new clients through
referrals or by identifying prospects through market research in product and
service industries in which the Company does not have a competing client. The
Company solicits prospective clients through personal contacts and presentations
by agency principals, backed by a team of creative and media personnel. The
initial step in the selection process normally involves preparing a capability
study demonstrating the Company's ability to service the prospective client.
Following the submission of a capability study, advertisers generally seek
presentations from a limited number of agencies. In soliciting new clients, the
Company often incurs expenses prior to obtaining such clients, and there is no
assurance that the Company will be able to obtain such clients or, if the
clients are obtained, that such expenses will be reimbursed by the client. The
Company considers the potential revenue from a new client when determining the
appropriate level of expenses for such presentations. The period of time
required by the Company to obtain a new client and generate revenues therefrom
may range from weeks to several months.
REVENUES
The primary sources of the Company's revenues are commissions earned from
advertising placed with the various media and service fees for creative time.
The Company places advertising for its clients (the "Advertiser") only in the
capacity of an agent and not as a principal. It is expressly understood that the
Company is acting only as an agent of the Advertiser and that ultimate
responsibility for the costs incurred rests solely with the Advertiser and not
with the Company. Clients pay the Company the full media charge for these
advertisements. The Company retains an agency commission, which is generally 15%
of the gross media charges, and remits the remaining fee to the media. The
billing and collection procedures established by the Company require that
billings be collected from its clients in sufficient time for the Company to
make the corresponding payment to the related media, usually within 30 to 60
days of invoice. Service fees for creative and typesetting time are established
on a case-by-case basis. The Company also receives a service fee on its outside
purchases of production materials (such as photography and printing) for
clients, generally 20% over the cost of such purchases. In some cases, fees are
generated in lieu of commissions on media and markup on outside purchases of
production materials.
CLIENTS
The Company considers its relationships with its clients to be good. Due to the
nature of the business, however, any client could at some time in the future
reduce its advertising budget, or transfer to another agency all or part of its
advertising presently placed through the Company. Representation of a client
does not necessarily mean that all advertising for such client is handled by the
Company exclusively. In some cases, the Company handles the advertising of only
a portion of a client's products or services.
For the twelve months ended October 31, 1998, four of the Company's clients
(Domino Sugar and Bic Corporation, Astoria Federal Savings and Fidelis Care, New
York), represented 19%, 16%, 13% and 12%, respectively, of the Company's
revenues. In addition, its five largest clients represented 70% of revenues for
that period and the Company depends upon a core of approximately 20 clients from
which it obtains the bulk of its revenues. Effective December 1998, Bic
Corporation notified the Company of its intention to change advertising
agencies.
Advertising industry clients can terminate their relationship with the Company
on relatively short notice, typically 60 to 90 days. The Company can terminate
at any time personnel working directly on the accounts to reduce its overhead.
SUPPLIERS
The Company internally produces substantially all of the materials required for
its clients. Services and materials such as photography, printing and film are
generally purchased from outside vendors. The Company does not maintain any
written contracts with its suppliers. Substantially all of such suppliers are
located on Long Island.
SEASONALITY
Historically, first quarter revenues have been less than other quarters because
of the timing of certain major clients' budgetary cycles.
GOVERNMENT REGULATION
Federal, state and local governments and governmental agencies in recent years
have adopted statutes and regulations affecting the advertising activities of
advertising agencies and their clients. For example, statutes and regulations
have prohibited television advertising for certain products and regulated the
form and content of certain types of advertising for many consumer products. The
Federal Trade Commission ("FTC") has also required proof of accuracy of
advertising claims with respect to various products and, in its enforcement
policies, is seeking to establish more stringent standards with respect to
advertising practices. The FTC has the authority to investigate and to institute
proceedings against advertisers and their advertising agencies for deceptive
advertising. The effect on the advertising business of future interpretations of
existing statutes or regulations, or the effect of new legislation or regulatory
activity cannot be predicted.
No claims or enforcement actions have been instituted against the Company to
date and the Company believes that it is in compliance in all material respects
with all applicable regulations. The Company maintains errors and omissions
insurance and believes that such coverage would adequately protect it in the
event claims are made by governmental agencies or others. In addition, the
Company has a hold harmless clause in most agreements with clients.
EMPLOYEES
As of October 31, 1998, the Company employed 38 people, all but two of which are
employed on a full-time basis, including 11 in account management, 4 in media,
3 in production, 8 in creative services and 12 in general administration and
finance.
The Company believes its future success will depend, in part, on its ability to
recruit and retain highly skilled management and creative personnel.
Professional personnel in the advertising industry normally do not enter into
employment contracts and are free to move from one agency to another. There is
substantial competition for qualified employees, although there is a large pool
of such people in the New York Metropolitan area. The Company, because of the
competitive nature of the advertising business, has required almost all
personnel to execute employee restrictive covenant agreements, which provide
generally that when such employee leaves the employ of the Company voluntarily,
for a period of one year such employee is prohibited from soliciting and
accepting business from the Company's clients and from trying to persuade any of
the Company's other employees to sever their employment with the Company.
None of the Company's employees is represented by a labor union. The Company has
experienced no work stoppages and believes that its employee relationships are
good. In order to recruit and retain key personnel, the Company has a wide range
of employee benefit plans.
COMPETITION
The advertising industry and other marketing communications businesses are
highly competitive. Agencies of all sizes strive to attract new clients or
additional assignments or accounts from existing clients. In addition, many
companies have in-house departments which handle all or a portion of their
advertising and/or public relations requirements.
Competition in the advertising industry depends to a large extent on the
client's perception of the quality of an agency's "creative product". As the
Company has restructured its operations it has had to compete more frequently
against larger advertising agencies. These larger agencies generally have
substantially greater financial resources, personnel and facilities than the
Company and many of them are large conglomerates and/or have an international
clientele. The Company believes it is able to compete on the basis of the
quality of its product, service, personal relationships with clients and
reputation. There can be no assurance that the Company will be able to maintain
its current position in the industry.
ITEM 2. PROPERTIES.
The Company does not own any real property. The office is located on leased
premises, which is considered ample for its present needs. The following table
provides data on the Company's office.
Annual Approximate Lease
Office Location Base Rent Square Feet Expiration Date
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New York 401 Broadhollow Road $345,713 12,944 7/31/08
Melville, New York
ITEM 3. LEGAL PROCEEDINGS.
In June 1997, a former client of the Company filed a civil claim against the
Company and Gothard. The former client sought, among other remedies, to be
relieved of its obligations to pay outstanding bills due and owing the Company
and to collect damages. The Company and Gothard filed a counterclaim against the
former client seeking payment of amounts due for advertising and public
relations services and expenses. In February 1998, the Company obtained a
judgment against the former client in the total amount of $1,196,000. Efforts to
collect the judgment have, thus far, been unsuccessful.
Greenstone Roberts Advertising Florida, Inc., a wholly-owned subsidiary of the
Company, The Gothard Group d/b/a/ Gothard/Greenstone Roberts, an entity which is
49% owned by Greenstone Roberts Advertising Florida, Inc. and Ronald Greenstone,
Chairman of the Board, Chief Executive Officer and Director of the Company were
named as defendants in litigation filed by Barbara W. Gothard in Circuit Court
in Miami-Dade County, Florida on April 21, 1998. The action arises from a
dispute between the Company and Barbara Gothard concerning the management and
operation of the Gothard Group. The action seeks among other things, the
dissolution of and the appointment of a receiver over The Gothard Group, an
accounting, injunctive relief and damages. The Company is vigorously defending
the claims against it and this case has been consolidated under court order with
an earlier filed action between Greenstone Roberts Advertising Florida, Inc.
against The Gothard Group and Barbara W. Gothard in which the Company seeks,
among other things, damages for breaches of contract and breaches of fiduciary
duty. Written discovery has commenced and each side has filed motions to
dismiss, which have not yet been heard by the Court.
Pursuant to the agreement of the parties, the Court has appointed a receiver for
The Gothard Group. On December 15, 1998, a Chapter 7 bankruptcy was filed on
behalf of the Gothard Group, by Barbara Gothard and a bankruptcy trustee has
been appointed. Management believes that the outcome of such litigation will not
have a material adverse effect on its financial condition or annual results of
operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SHAREHOLDERS.
There were no matters submitted to a vote of the shareholders of the Company
during the fourth quarter of the fiscal year covered by this report.
PART II
ITEM 5. MARKET PRICE OF AND DIVIDENDS ON THE COMPANY'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS.
The Company's common stock was delisted from the NASDAQ SmallCap market
effective with the close of business July 28, 1998. On July 29th the Company
filed a Form 8-K to disclose the delisting. Effective July 29, 1998 the
Company's common stock is trading on the over-the-counter bulletin board market
and continues to be quoted under the symbol GRRI.
The following table sets forth the high and low closing bid quotations for the
Company's common stock (restated for the reverse one-for-ten stock split
effective July 29, 1997), as reported by NASDAQ for the periods indicated. These
quotations represent bid prices between dealers, do not include retail markups,
markdowns or commissions, and do not necessarily represent actual transactions.
Common Stock Closing Bid Prices For
Fiscal Year Ended October 31,
1998 1997
HIGH LOW HIGH LOW
---- ---- ---- ---
First Quarter 2.88 1.88 4.69 2.81
Second Quarter 2.88 1.75 3.75 1.88
Third Quarter 2.75 1.25 2.81 2.19
Fourth Quarter 1.31 .90 3.50 2.00
The Company's common stock was held by approximately 274 shareholders of record
as of January 5, 1999.
The Company has never paid a cash dividend on its common stock and does not
contemplate paying cash dividends on its common stock in the foreseeable future.
ITEM 6. SELECTED FINANCIAL DATA.
FIVE-YEAR SELECTED FINANCIAL DATA
The following selected historical financial data presented below has been
derived from consolidated financial statements audited by BDO Seidman LLP for
the year ended October 31, 1998, Ernst & Young LLP for the year ended October
31, 1997 and Arthur Andersen LLP for the years ended October 31, 1996, 1995 and
1994. The selected historical financial data presented below should be read in
conjunction with the Consolidated Financial Statements and related notes thereto
and other financial information included elsewhere in this document.
<TABLE>
<CAPTION>
YEAR ENDED OCTOBER 31,
STATEMENT OF
OPERATIONS DATA: 1998 1997 1996 1995 1994
<S> <C> <C> <C> <C> <C>
Commissions and Fees $ 5,651,599 $ 7,113,144 $ 8,960,983 $ 9,685,169 $ 10,507,754
Net (loss)income $ (938,848) $(1,117,895) $ 53,828 $ (211,062) $ 4,122
Net (Loss)income $ (1.26) $ (1.50) $ .07 $ (.22) $ .00
per common share
basic and diluted
Weighted Average
shares outstanding-
basic and diluted 743,277 745,791 791,947 953,632 953,632
BALANCE SHEET
DATA:
Total assets $ 6,848,873 $ 9,165,790 $14,334,357 $13,596,373 $ 13,075,318
Long-term debt $ 0 $ 250,000 $ 250,000 $ 250,000 $ 250,000
</TABLE>
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
RESULTS OF OPERATIONS FOR THE FISCAL YEAR ENDED OCTOBER 31, 1998 AS COMPARED TO
THE FISCAL YEAR ENDED OCTOBER 31, 1997
Commission and fee revenue decreased $1,461,545 or 21% from $7,113,144 for the
year ended October 31, 1997 to $5,651,599 for the year ended October 31, 1998.
This decrease is principally attributable to the closing of the Orlando office
during fiscal 1998.
Salaries and employee-related expenses decreased 21% from $5,004,743 for the
year ended October 31, 1997 to $3,961,639 for the year ended October 31, 1998.
The decrease is a result of a reduction in staff attributable to the Orlando
office closing discussed above.
Office and general expenses decreased $7,006 from $2,350,512 for the year ended
October 31, 1997 to $2,343,506 for the year ended October 31, 1998. Office and
general expenses were not reduced proportionately during the year due to certain
fixed costs for the Orlando office prior to its closing.
Interest income increased $14,596 from $65,051 for the year ended October 31,
1997 to $79,647 for the year ended October 31, 1998.
The equity in operations and provision for loss on amounts due from investee
company increased from $144,668 for the year ended October 31, 1997 to $378,102.
During fiscal 1998 the Company determined it would no longer fund the operations
of Gothard once its investment in Gothard was fully amortized. The provision for
loss on amounts due from an investee company of $311,844, which arose in the
fourth quarter of fiscal 1998, represents a reserve for accounts receivable of
approximately $126,000 and $186,000 for advances due from Gothard.
Net loss for the year ended October 31, 1998 is $938,848 compared to a loss of
$1,117,895 for the year ended October 31, 1997 attributable to the factors
discussed above.
RESULTS OF OPERATIONS FOR THE FISCAL YEAR ENDED OCTOBER 31, 1997 AS COMPARED TO
THE FISCAL YEAR ENDED OCTOBER 31, 1996.
Commission and fee revenue decreased $1,847,839 or 21% from $8,960,983 for the
year ended October 31, 1996 to $7,113,144 for the year ended October 31, 1997.
This decrease is principally attributable to the full year effect of closing the
Recruitment, Spanish International and Coconut Creek divisions in fiscal 1996.
Salaries and employee-related expenses decreased 17% from $6,014,572 for the
year ended October 31, 1996 to $5,004,743 for the year ended October 31, 1997.
The decrease is the result of a reduction in staff attributable to the
divisional closings discussed above.
Office and general expenses decreased $584,336, from $2,934,848 for the year
ended October 31, 1996 to $2,350,512 for the year ended October 31, 1997. This
decrease is principally attributable to the full year effect of closing the
Recruitment, Spanish International and Coconut Creek divisions in fiscal 1996.
The provision for loss on claim in litigation arose in the fourth quarter of
fiscal 1997. While management is vigorously pursuing this claim and believes
that it will be successful, the financial viability of the entity being
litigated is questionable. Accordingly, management has reserved against this
claim.
Interest income decreased $23,528 from $88,579 for the year ended October 31,
1996 to $65,051 for the year ended October 31, 1997 due primarily to the
reduction in available funds for investing activities.
Net loss for the year ended October 31, 1997 of $1,117,895 compared to net
income of $53,828 for the year ended October 31, 1996 is attributable primarily
to the factors discussed above.
LIQUIDITY AND CAPITAL RESOURCES
The Company's working capital was $1,301,000 at October 31, 1998, primarily
comprised of cash and cash equivalents of $1,754,000, accounts receivable of
$3,798,000 and billable production orders of $250,000, offset by accounts
payable and accrued liabilities of $4,637,000.
Net cash used in operating activities for the year ended October 31, 1998 was
approximately $671,000. The principal factors contributing to the decrease in
cash flow were decreases in accounts receivable of $357,000, billable production
orders of $246,000 and accounts payable and accrued liabilities of $1,128,000
offset by depreciation and amortization of $354,000, equity in operations and a
provision for amounts due from Gothard of $378,000 and the net loss for the
period of approximately $939,000.
Because the Company recognizes commissions as a percentage of expenditures
incurred, the accounts receivable balance relates not only to the commissions
and fees shown on the income statement, but also to receivables for production
costs and media purchased for clients. Similarly, the accounts payable balance
includes payables for production costs and media incurred on behalf of clients.
The Company has available an unsecured $2,000,000 line of credit from a bank
which expires in March 1999. Loans against the credit line shall bear interest
equal to the "Prime Rate", as defined. The Prime Rate at October 31, 1998 was
8.00%. The Company intends to renew its credit line in 1999. Management believes
that its current working capital levels will be sufficient to meet the Company's
liquidity and working capital requirements for the foreseeable future. The
Company does not anticipate any increases in capital expenditures or other cash
requirements which would have a material adverse effect on its liquidity.
IMPLEMENTATION OF NEW ACCOUNTING PRONOUNCEMENTS
COMPREHENSIVE INCOME
In June 1997, the Financial Accounting Standards Board issued SFAS No. 130,
"Reporting Comprehensive Income" ("SFAS 130"), which established standards for
reporting and display of comprehensive income, its components and accumulated
balances. Comprehensive income is defined to include all changes in equity
except those resulting from investments by owners and distributions to owners.
Among other disclosures, SFAS 130 requires that all items that are comprehensive
income be reported in a financial statement that is displayed with the same
prominence as other financial statements.
SFAS is effective for financial statements for periods beginning after December
15, 1997 and requires comparative information for earlier years to be restated.
SFAS 130 is not expected to materially impact the Company's disclosure when
adopted.
REPORTING FOR SEGMENTS
In June 1997, the Financial Accounting Standards Board issued SFAS No. 131,
"Disclosures about Segments of an Enterprise and Related Information" ("SFAS
131"), which supersedes SFAS 14, "Financial Reporting for Segments of a Business
Enterprise". SFAS 131 establishes standards for the way public companies report
information about operating segments in annual financial statements and requires
reporting of selected information about operating segments in interim financial
statements issued to the public. It also establishes standards for disclosures
regarding products and services, geographic areas and major customers. SFAS 131
defines operating segments as components of a company about which separate
financial information is available that is evaluated regularly by the chief
operating decision maker in deciding how to allocate resources and in assessing
performance.
SFAS 131 is effective for financial statements for periods beginning after
December 15, 1997 and requires comparative information for earlier years to be
restated. SFAS 131 is not expected to materially impact the Company's
disclosures when adopted.
YEAR 2000
Management has initiated a company-wide program to prepare the Company's
computer systems, applications and software products for the Year 2000, as well
as to assess the readiness for the Year 2000 of critical vendors and other third
parties upon which the Company relies to operate its business.
The Year 2000 issue arises from the widespread use of computer programs that
rely on two-digit date codes to perform computations or decision-making
functions. The Company anticipates completing all of its system critical
upgrades and enhancements and testing before the end of the third quarter 1999.
The Company expects to incur internal payroll costs as well as consulting costs
and other expenses relating to infrastructure, facility enhancements and
software upgrades necessary to prepare the Company's systems for the Year 2000.
All costs associated with Year 2000 compliance are being expensed as incurred
and are not expected to have a material adverse effect on the Company's
business, financial condition and results of operations.
There can be no assurance that the computer systems of other companies which the
Company's systems or software products rely upon will be timely converted, or
that such failure to convert by another company would not have a material
adverse effect on the Company's business or systems and results of operations.
The statements contained in this Year 2000 readiness disclosure are subject to
certain protection under the Year 2000 Information and Readiness Disclosure Act.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
None.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The information required by this item is incorporated herein by reference to the
Consolidated Financial Statements listed in Item 14(a) of Part IV of this
report.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
During 1998, the Company dismissed Ernst & Young LLP as its independent auditors
and retained BDO Seidman LLP. On November 9, 1998, the Company filed a Form 8-K
disclosing the change in the Company's certified public accountants, which is
incorporated herein by reference. During 1997, the Company dismissed Arthur
Andersen, LLP as its independent auditors and retained Ernst & Young LLP. On
February 25, 1997, the Company filed a Form 8-K disclosing the change in the
Company's certified public accountants, which is incorporated herein by
reference.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY.
Required information will be incorporated in the Company's Proxy Statement to be
filed within 120 days of October 31, 1998 and is incorporated herein by
reference.
ITEM 11. EXECUTIVE COMPENSATION.
Required information will be incorporated in the Company's Proxy Statement to be
filed within 120 days of October 31, 1998 and is incorporated herein by
reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
Required information will be incorporated in the Company's Proxy Statement to be
filed within 120 days of October 31, 1998 and is incorporated herein by
reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
Not applicable.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(a)(1) Financial Statements:
Refer to F-1 for index
(2) Financial Statement Schedules:
Refer to F-1 for index
Number Description
3.1 Certificate of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-18 (Registration No. 33-26372 NY).
3.2 By-laws of the Registrant (incorporated by reference to
Exhibit 3.2 of the Registrant's Registration Statement on
Form S-18 (Registration No. 33-26372 NY)).
10.1 * 1988 Stock Option Plan (incorporated by reference to Exhibit
10.6 of the Registrant's Registration Statement on Form S-18
(Registration No. 33-26372 NY)).
10.2 * Amendment No. 1 to the 1988 Stock Option Plan dated February
7, 1990 (incorporated by reference to Exhibit 10.6 of the
Registrant's Form 10-K for the fiscal year ending October 31,
1990)).
10.3 Lease agreements between the Registrant and We're Associates
dated September 28, 1987 (incorporated by reference to Exhibit
10.4 and 10.5 of the Registrant's Registration Statement on
Form S-18 (Registration No. 33-26372 NY)).
10.4 Second and third modifications of lease agreements between the
Registrant and We're Associates dated February 14, 1989 and
July 7, 1989, respectively (incorporated by reference to
Exhibit 10.8 of the Registrant's Form 10-K for the fiscal year
ending October 31, 1990).
10.5 Lease agreements between the Registrant and Wyncreek Partners,
Ltd. dated April 17, 1989 and the first and second amendments
dated June 29, 1989 and April 10, 1990, respectively
(incorporated by reference to Exhibit 10.10 of the
Registrant's Form 10-K for the fiscal year ending October 31,
1990).
10.6 * Employment agreement between the Registrant and Ronald M.
Greenstone dated December 31, 1994. (Incorporated by reference
to Exhibit 10.6 of the Registrant's Form 10-K for the fiscal
year ending October 31, 1994).
10.7 * Employment agreement between the Registrant and Gary C.
Roberts dated December 31, 1995.
10.8 Fifth and sixth amendments of lease agreements between the
Registrant and We're Associates dated June 13, 1990 and June
18, 1991, respectively (incorporated by reference to Exhibit
10.11 of the Registrant's Form 10-K for the fiscal year ending
October 31, 1991).
10.9 Third amendment of lease agreement between the Registrant and
Wyncreek Partners, Ltd. dated January 19, 1991 (incorporated
by reference to Exhibit 10.12 of the Registrant's Form 10-K
for the fiscal year ending October 31, 1991).
10.10
Fourth and fifth amendments of lease agreement between the
Registrant and Wyncreek Partners, Ltd. dated January 22, 1992
and May 12, 1992, respectively (incorporated by reference to
Exhibit 10.10 of the Registrant's Form 10-K for the fiscal
year ending October 31, 1992).
10.11 Lease agreement between the Registrant and Lincoln-Sun Center
Ltd. dated September 4, 1992 (incorporated by reference to
Exhibit 10.11 of the Registrant's Form 10-K for the fiscal
year ending October 31, 1992).
10.12 Sixth amendment of lease agreement between the Registrant and
Wyncreek Partners, Ltd. dated August 26, 1993 (incorporated by
reference to Exhibit 10.12 of the Registrant's Form 10-K for
the fiscal year ending October 31, 1993).
10.13 Employment agreement between the Company and Ronald M.
Greenstone dated January 1, 1998.
10.14 Employment agreement between the Company and Gary C. Roberts
dated January 1, 1998.
10.15** Form of lease agreement between the Registrant and 401
Broadhollow Realty Corp. dated April 15, 1998.
21** Subsidiaries of the Company.
27** Financial data schedule
(b) Reports on Form 8-K:
On November 8, 1998, a Form 8-K was filed for the change in the
Company's independent auditors.
*Indicates a Management Contract or a Compensatory Plan or Arrangement.
** Filed herewith
SIGNATURES
Pursuant to the requirements of Section 15(d) of the Securities Exchange Act of
1934, the Company has duly caused this Report to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Melville, State of New
York on February 11, 1999.
Greenstone Roberts Advertising, Inc.
By: /s/ Ronald M. Greenstone
---------------------------
Ronald M. Greenstone
Chairman of the Board
Pursuant to the requirements of the Securities Exchange Act of 1934, this Report
has been signed by the following persons in the capacities and on the dates
indicated.
/s/ Ronald M. Greenstone Chairman of the Board, Chief February 11, 1999
- ------------------------- Executive Officer and Director
Ronald M. Greenstone Director (principal executive
officer and financial officer)
/s/ Gary C. Roberts President and Director February 11, 1999
- -------------------------
Gary C. Roberts
/s/ Thomas Hartman Director February 11, 1999
- -------------------------
Thomas Hartman
/s/ Anthony V. Curto Director February 11, 1999
- -------------------------
Anthony V. Curto
/s/ Martin Sussman Director February 11, 1999
- -------------------------
Martin Sussman
/s/ Victor F. Trizzino Director February 11, 1999
- -------------------------
Victor F. Trizzino
GREENSTONE ROBERTS ADVERTISING, INC. AND SUBSIDIARY
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Page
Number
Report of Independent Auditors - BDO Seidman LLP F-2
Report of Independent Auditors - Ernst & Young LLP F-3
Report of Independent Public Accountants - Arthur Andersen LLP F-4
Consolidated Balance Sheets as of October 31, 1998 and 1997 F-5
Consolidated Statements of Operations for the years ended
October 31, 1998, 1997 and 1996 F-6
Consolidated Statements of Shareholders' Equity for the
years ended October 31, 1998, 1997 and 1996 F-7
Consolidated Statements of Cash Flows for the years ended
October 31, 1998, 1997 and 1996 F-8
Notes to Consolidated Financial Statements F-9 to F-15
Index to Supplemental Schedule S-1
Report of Independent Public Accountants on Schedule S-2
Schedule II - Valuation and Qualifying Accounts S-3
Information required by other schedules required under Regulation S-X is either
not applicable or is included in the consolidated financial statements or notes
thereto.
<PAGE>
REPORT OF INDEPENDENT AUDITORS
Shareholders and Board of Directors
Greenstone Roberts Advertising, Inc.
We have audited the accompanying consolidated balance sheet of Greenstone
Roberts Advertising, Inc. and subsidiary as of October 31, 1998 and the related
consolidated statements of operations, shareholders' equity, and cash flows for
the year then ended. Our audit also included the financial statement schedule
listed in the Index at Item 14(a) for the year ended October 31, 1998. These
consolidated financial statements and schedule are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
consolidated financial statements and schedule based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
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 audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Greenstone Roberts
Advertising, Inc. and subsidiary at October 31, 1998 and the consolidated
results of their operations and their cash flows for the year then ended, in
conformity with generally accepted accounting principles. Also, in our opinion,
the related financial statement schedule, when considered in relation to the
basic consolidated financial statements taken as a whole, presents fairly in all
material respects the information set forth herein.
/s/ BDO Seidman LLP
Melville, New York
December 29, 1998
<PAGE>
REPORT OF INDEPENDENT AUDITORS
Shareholders and Board of Directors
Greenstone Roberts Advertising, Inc.
We have audited the accompanying consolidated balance sheet of Greenstone
Roberts Advertising, Inc. and subsidiary as of October 31, 1997 and the related
consolidated statements of operations, shareholders' equity, and cash flows for
the year then ended. Our audit also included the financial statement schedule
listed in the Index at Item 14(a) for the year ended October 31, 1997. These
consolidated financial statements and schedule are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
consolidated financial statements and schedule based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
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 audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Greenstone Roberts
Advertising, Inc. and subsidiary at October 31, 1997 and the consolidated
results of their operations and their cash flows for the year then ended, in
conformity with generally accepted accounting principles. Also, in our opinion,
the related financial statement schedule, when considered in relation to the
basic consolidated financial statements taken as a whole, presents fairly in all
material respects the information set forth herein.
/s/ Ernst & Young LLP
Melville, New York
December 22, 1997
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Shareholders of Greenstone
Roberts Advertising, Inc.:
We have audited the accompanying consolidated statement of operations,
shareholders' equity and cash flows of Greenstone Roberts Advertising, Inc. (a
New York corporation) and subsidiary for the year ended October 31, 1996. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
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 audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated results of operations and cash flows of
Greenstone Roberts Advertising, Inc. and subsidiary for the year ending October
31, 1996 , in conformity with generally accepted accounting principles.
/s/ Arthur Andersen LLP
New York, New York
January 9, 1997
<PAGE>
GREENSTONE ROBERTS ADVERTISING, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
OCTOBER 31,
1998 1997
---- ----
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents $1,753,681 $2,989,370
Accounts receivable, net of
allowance for bad debts of $986,723 in 1998
and $886,645 in 1997 3,797,631 4,280,534
Billable production orders in process, at cost 249,858 495,712
Deferred income taxes 64,000 128,918
Recoverable income taxes - 52,000
Receivable from investee company - 60,000
Other current assets 73,487 69,610
------------------ ----------------
TOTAL CURRENT ASSETS 5,938,657 8,076,144
Furniture, equipment and leasehold improvements,
less accumulated depreciation and amortization 761,119 649,455
Investment in investee company,
net of accumulated amortization of $63,682 in 1998
and $27,612 in 1997 - 66,258
Deferred income tax benefit 130,120 65,202
Cost in excess of net assets
acquired and other assets, net of accumulated amortization
of $80,323 in 1998 and
$337,661 in 1997 18,977 308,731
------------------- ---------------
TOTAL ASSETS $6,848,873 $9,165,790
=================== ===============
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $4,442,500 $5,570,804
Accrued liabilities 194,795 247,010
------------------- ---------------
TOTAL CURRENT LIABILITIES 4,637,295 5,817,814
Other liabilities 52,450 -
Long-term debt - 250,000
------------------- ---------------
TOTAL LONG TERM LIABILITIES 52,450 250,000
Commitments and contingencies
SHAREHOLDERS' EQUITY
Preferred stock, $1.00 par value, 1,000,000 shares
authorized, no shares issued or outstanding - -
Common stock, $.10 par value, 3,000,000 shares
authorized, 1,060,000 shares issued 106,000 106,000
Additional paid-in capital 3,600,692 3,600,692
Retained earnings(accumulated deficit) (179,956) 758,892
Less: treasury stock, 316,723 shares at cost (1,367,608) (1,367,608)
-------------------- ---------------------
TOTAL SHAREHOLDERS' EQUITY 2,159,128 3,097,976
-------------------- ---------------------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $6,848,873 $9,165,790
==================== =====================
</TABLE>
See accompanying notes to consolidated financial statements
GREENSTONE ROBERTS ADVERTISING, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
For the years ended October 31,
1998 1997 1996
---- ---- -----
<S> <C> <C> <C>
Commissions and fees $5,651,599 $7,113,144 $8,960,983
Expenses:
Salaries and employee-related expenses 3,961,639 5,004,743 6,014,572
Office and general expenses 2,343,506 2,350,512 2,934,848
Provision for loss on claim in litigation - 796,167 -
---------------- ---------------- --------------
6,305,145 8,151,422 8,949,420
---------------- ---------------- --------------
(653,546) (1,038,278) 11,563
Interest income 79,647 65,051 88,579
Equity in operations and provision for loss on
amounts due from investee company (378,102) (144,668) -
---------------- ----------------- -----------------
(Loss)income before income taxes (952,001) (1,117,895) 100,142
(Provision)benefit for income taxes 13,153 (46,314)
---------------- ----------------- -----------------
Net (loss)income $(938,848) $(1,117,895) $53,828
================ ================= =================
Net (loss)income per common share-basic and diluted $(1.26) $(1.50) $0.07
================ ================= =================
Weighted average common shares outstanding-
basic and diluted 743,277 745,791 791,947
================ ================= =================
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
GREENSTONE ROBERTS ADVERTISING, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
FOR THE YEARS ENDED OCTOBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
Common Stock Additional Treasury Stock
Paid-in Retained
Shares Amount Capital Earnings Shares Amount Total
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE - OCTOBER 31, 1995 1,060,000 $106,000 $3,600,692 $1,822,959 106,368 $(446,747) $5,082,904
Treasury stock purchased - - - - 206,190 (907,879) (907,879)
Net income - - - 53,828 - - 53,828
--------------- ------------- ------------- ----------- ---------- ------------- ---------------
BALANCE - OCTOBER 31, 1996 1,060,000 106,000 3,600,692 1,876,787 312,558 (1,354,626) 4,228,853
Treasury stock purchased - - - - 4,165 (12,982) (12,982)
Net (loss) - - - (1,117,895) - - (1,117,895)
---------------- -------------- ------------ ------------ ---------- ------------ ----------------
BALANCE - OCTOBER 31, 1997 1,060,000 106,000 3,600,692 758,892 316,723 (1,367,608) 3,097,976
Net (loss) - - - (938,848) - - (938,848)
---------------- --------------- ------------- ------------ --------- ----------- ----------------
BALANCE - OCTOBER 31, 1998 1,060,000 $106,000 $3,600,692 $(179,956) 316,723 $(1,367,608) $2,159,128
================ =============== ============= ============ ========= ============ ================
</TABLE>
See accompanying notes to consolidated financial statements.
<PAGE>
GREENSTONE ROBERTS ADVERTISING, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE YEARS ENDED OCTOBER 31,
1998 1997 1996
---- ---- ----
OPERATING ACTIVITIES:
<S> <C> <C> <C>
Net (loss)income $(938,848) (1,117,895) $53,828
Adjustments to reconcile net (loss)income to net cash
provided by operating activities:
Depreciation and amortization 354,223 360,603 471,432
Provision for amounts due from investee company
and Equity in operations 378,102 144,668 8,961
Provision for bad debts - 857,868 1,419
Deferred income tax expense(benefit) - 52,000 86,208
Deferred income tax liability - - (53,109)
Changes in operating assets and liabilities:
Accounts receivable 356,991 3,618,196 (1,741,311)
Billable production orders in process, at cost 245,854 332,308 (295,420)
Recoverable income taxes and other current assets 48,122 1,796 (12,300)
Other assets 12,311 (8,681) 8,174
Accounts payable (1,128,304) (3,799,742) 1,712,508
Accrued liabilities and Other 235 (237,948) (67,365)
-------------------- -------------- --------------------
Net cash (used in) provided by operating activities (671,314) 203,173 173,025
-------------------- --------------- --------------------
INVESTING ACTIVITIES:
Purchases of furniture, equipment and leasehold (438,443) (46,973) (439,629)
improvements
Maturities of short-term investments, net - 302,422 818,593
Purchase of investment in investee company - - (225,000)
Advances to investee company, net (125,932) (10,000) (50,000)
------------------- --------------- --------------------
Net cash provided by investing activities (564,375) 245,449 103,964
------------------- --------------- --------------------
FINANCING ACTIVITIES:
Purchase of treasury stock - (12,982) (907,879)
------------------- --------------- --------------------
Net cash used in financing activities - (12,982) (907,879)
------------------- --------------- --------------------
Net increase(decrease) in cash and cash
equivalents (1,235,689) 435,640 (630,890)
Cash and cash equivalents at beginning of year 2,989,370 2,553,730 3,184,620
------------------ --------------- --------------------
Cash and cash equivalents at end of year $1,753,681 $2,989,370 $2,553,730
================== =============== ====================
</TABLE>
SUPPLEMENTAL NON CASH ACTIVITY:
In 1998, Notes Payable, which related to an acquisition,
totaling $250,000 were written off against related goodwill
See accompanying notes to consolidated financial statements
GREENSTONE ROBERTS ADVERTISING, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
PRINCIPLES OF CONSOLIDATION
The accompanying consolidated financial statements include the accounts of
Greenstone Roberts Advertising, Inc. and its wholly-owned subsidiary, Greenstone
Roberts Advertising Florida, Inc. ("Florida"), (collectively the "Company"). All
significant intercompany balances and transactions have been eliminated in
consolidation.
RECOGNITION OF COMMISSION AND FEE REVENUE
Substantially all revenues are derived from commissions for placement of
advertisements in various media and fees for production of advertisements and
marketing materials. Such revenues are recognized as billed. Billings are
generally rendered upon insertion date for print media, job completion date for
production costs, and air date for broadcast media.
CONCENTRATION OF CREDIT RISK
The Company provides advertising and marketing services to a wide range of
clients who operate in many industry sectors and are principally located in the
Northeast. The Company grants credit to all qualified clients and generally does
not require collateral. The Company does not believe it is exposed to any undue
concentration of credit risk to any significant degree. (see Note 7.)
RECLASSIFICATIONS
Certain amounts as previously reported have been reclassified to conform to
current year classifications.
CASH EQUIVALENTS
The Company considers all highly liquid debt instruments purchased with original
maturities of three months or less to be cash equivalents, including commercial
paper, certificates of deposit and money market mutual funds. Cash equivalents
as of October 31, 1998 and 1997 were approximately $1,750,000 and $1,020,000,
respectively.
FURNITURE, EQUIPMENT AND LEASEHOLD IMPROVEMENTS
Furniture, equipment and leasehold improvements are stated at cost, net of
accumulated depreciation and amortization. Depreciation and amortization are
computed using the straight-line method, over the estimated useful lives of the
related assets as follows:
Furniture 5 - 7 years
Equipment 5 - 7 years
Leasehold improvements Lease term or useful life, whichever is shorter
EXCESS OF COST OVER NET ASSETS ACQUIRED
Long-lived assets, such as goodwill and property and equipment, are evaluated
for impairment when events or changes in circumstances indicate that the
carrying amount of these assets may not be recoverable through the estimated
undiscounted future cash flows from the use of these assets. When such an
impairment exists, the related assets will be written down to fair value. No
impairment losses have been necessary through October 31, 1998.
INCOME TAXES
The Company accounts for income taxes on the liability method. Under the
liability method, deferred income taxes are provided on the differences in bases
of assets and liabilities between financial reporting and tax returns using
enacted tax rates.
EARNINGS (LOSS) PER SHARE
During 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128 ("SFAS No. 128"), "Earnings Per Share,"
which provides for the calculation of "basic and diluted" earnings per share.
This statement is effective for financial statements issued for periods ending
after December 15, 1997. Basic earnings per share includes no dilution and is
computed by dividing income available to common shareholders by the weighted
average number of common shares outstanding for the period. Diluted earnings per
share reflect, in periods in which they have a dilutive effect, the effect of
common shares issuable upon exercise of stock options. As required by this
statement, all periods presented have been restated to comply with the
provisions of SFAS No. 128. The adoption of this statement did not affect the
financial statements of the Company. For fiscal 1998, 1997 and 1996, all options
outstanding were anti-dilutive. These options expire in 2004.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles required the Company to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period. The
Company reviews all significant estimates affecting the financial statements on
a recurring basis and records the effect of any adjustments when necessary.
STOCK-BASED COMPENSATION
The Company accounts for its stock option awards under the intrinsic value based
method of accounting prescribed by Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees." Under the intrinsic value based
method, compensation cost is the excess, if any, of the quoted market price of
the stock at grant date or other measurement date over the amount an employee
must pay to acquire the stock. The Company makes pro forma disclosures of net
income and earnings per share as if the fair value based method of accounting
had been applied as required by Statement of Financial Accounting Standards No.
123, "Accounting for Stock-Based Compensation.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts of cash, accounts receivable, accounts payable and accrued
expenses are reasonable estimates of their fair value because of the short
maturity of these items.
2. INVESTMENT IN INVESTEE COMPANY:
On August 8, 1996, the Company acquired a 49% interest in the Gothard Group,
Inc., a Miami-based public relations agency. The Company merged its existing
public relations business and its Hispanic Division into the Gothard Group, Inc.
and renamed the new company Gothard/Greenstone Roberts, Inc. ("Gothard"). The
Company is accounting for its interest in Gothard using the equity method of
accounting. The excess of the purchase price over the net assets of the acquired
interest was being amortized over ten years.
In July 1998 the Company filed a lawsuit against Gothard seeking among other
things, damages under a certain management agreement and repayment of certain
loans made by the Company to Gothard. (See note 9). In December 1998, Gothard
filed for Chapter 7 bankruptcy protection and all assets were placed in trust.
During 1998, the Company advanced Gothard approximately $126,000 ($75,000 of
which represented the payment of an outstanding bank loan for which the Company
was a guarantor). In connection with Gothard filing for Chapter 7, the Company
has fully reserved for approximately $126,000 of accounts receivable and
$186,000 of advances due from Gothard at October 31, 1998. Also, for the F-10
year ended October 31, 1998, the Company has recorded an equity loss of $66,258
representing its proportionate share of Gothard's losses up to the Company's
remaining investment in Gothard. No additional loss of Gothard will be
recognized as the Company has no plans to support the operations of Gothard.
3. FURNITURE, EQUIPMENT AND LEASEHOLD IMPROVEMENTS:
Furniture, equipment and leasehold improvements are summarized as follows:
October 31, October 31,
1998 1997
---- ----
Office equipment $1,584,159 $2,512,982
Furniture and fixtures 172,596 535,219
Leasehold improvements 279,456 178,984
Automobiles - 34,839
----------------- ------------------
2,036,211 3,262,024
Less accumulated depreciation and
amortization (1,275,092) (2,612,569)
------------------ --------------------
$761,119 $649,455
================== ====================
4. LINE OF CREDIT AGREEMENT:
The Company has available an unsecured $2,000,000 line of credit with a bank,
which expires on March 31, 1999. Borrowings against this line bear interest at
the prime rate, as defined. The prime rate approximated 8% at October 31, 1998.
The Company did not have any amounts outstanding to the bank at October 31, 1998
or 1997.
5. INCOME TAXES:
The provision (benefit) for income taxes included in the accompanying
consolidated statements of operations consists of the following:
October 31, October 31, October 31,
1998 1997 1996
---- ---- ----
CURRENT:
Federal $(13,153) $(52,000) $19,121
State - - (5,906)
--------- ---------- -----------
(13,153) (52,000) 13,215
DEFERRED:
Accelerated depreciation - - (13,255)
Allowance for bad debts - - (1,301)
Goodwill amortization - - (10,177)
Vacation accrual - - 30,651
Various accrued - - 27,181
liabilities and other
Federal NOL carryback - 52,000 -
State NOL carryforward - - -
--------- ---------- -----------
- 52,000 33,099
--------- ---------- -----------
TOTAL: $(13,153) - $46,314
========= ========== ===========
As a result of losses from operations, the Company has available a Federal net
operating loss carryforward of approximately $527,000 which expires in various
years through 2018, a New York State net operating loss carryforward of
approximately $134,000 which expires in various years through 2012, and a
Florida state net operating loss carryforward of approximately $1,775,000 which
expires in various years through 2018.
The components of the Company's net deferred tax assets are as follows:
October 31, October 31,
1998 1997
---- ----
Deferred tax liability:
Depreciation and amortization $(9,000) $(40,000)
Other - (43,000)
--------- ---------
Total deferred tax liability (9,000) (83,000)
--------- ---------
Net Deferred tax assets:
Net Operating loss carryforwards 203,000 132,000
Capital loss carryforward 148,000
Accounts receivable reserves 380,000 356,000
Amortization of excess of purchase price 65,000 93,000
over net assets acquired
Other 31,000 46,000
--------- --------
Total deferred tax assets 827,000 627,000
--------- ---------
Valuation allowance for deferred tax assets (624,000) (350,000)
--------- ---------
Net deferred tax assets $194,000 $194,000
========== =========
The following table reconciles the Federal statutory rate to the Company's
effective rate:
October 31, October 31, October 31
1998 1997 1996
---- ---- ----
(Benefit)provision for Federal (34.0)% (34.0)% 22.0%
income taxes at the statutory rate
State income taxes, net of
Federal income tax benefit - (3.8) 2.0
Non-deductible expenses 2.7 .9 16.3
Other 1.1 - 5.9
Valuation allowance on
deferred tax assets 28.8 36.9 -
------ ------ -----
(1.4)% -% 46.2%
====== ====== ======
Income taxes paid during the years ended October 31, 1998, 1997 and 1996 were
approximately $10,000 $43,000 and $77,000, respectively.
6. SAVINGS PLAN:
The Company maintains a 401(k) Savings Plan ("Savings Plan") that covers all
employees with one or more years of service. The Company matches employee
contributions utilizing a percentage determined at the discretion of management.
Such percentage was 15% of employee contributions for the years ended October
31, 1998, 1997 and 1996. The Company's matching contribution to the Savings Plan
was approximately $17,000, $22,000 and $23,000, for the years ended October 31,
1998, 1997 and 1996, respectively.
7. SIGNIFICANT CUSTOMERS:
For the year ended October 31, 1998, four customers represented 19%, 16%, 13%
and 12% of the Company's revenues. In addition, the Company's five largest
clients represented 70% of revenues for that period. For the year ended October
31, 1997, revenues from two customers represented 13% and 12% of the Company's
revenues. For the years ended October 31, 1996, revenues from a company which is
no longer a customer represented 15% of revenues. F-12 For the year ended
October 31, 1998, three customers represented 26%, 25%, 21% of the Company's
Accounts Receivable. For the year ended October 31, 1997, four customers
represented 26%, 17%, 13% and 12% of the Company's Accounts Receivable.
8. STOCK OPTION PLAN:
In December 1988, the Board of Directors approved the adoption of the 1988 Stock
Option Plan (the "Plan"). The Plan was amended in 1990 to increase the number of
common shares reserved for issuance to key employees, including officers and
directors who are also employees, from 60,000 to 90,000 shares. All options are
granted at no less than 100% of the fair market value on the date of grant.
As a result of the reverse one-for-ten stock split on July 29, 1997, all
unexercised stock options issued prior to August 5, 1997 were canceled. On
August 5, 1997, new options were issued at an exercise price of $2.25, the fair
market value of the underlying common stock on that date.
Options expire from two to six years from the date of grant, and are exercisable
one year from the date of grant. Options that are unexercised are canceled
immediately if the holder ceases to be an employee of the Company.
At a meeting on January 26, 1998, the Board of Directors elected to amend the
Plan to permit the granting of stock options to non-employee directors. In
addition, the Board of Directors voted to issue 4,000 shares of common stock to
each of the non-employee directors. The fair value of the options granted was
not material. The Board also voted to grant to all members of the Board of
Directors who are not employees of the Company an additional 2,000 options to
purchase shares of stock of the Company on each anniversary that such individual
is a member of the Board of Directors. Accordingly, the Company has reserved
90,000 of the options available under the Plan for this purpose. The amendment
of the Company's Stock Option Plan to provide for the issuance of the Stock
Options to Non-employee members of the Board of Directors was voted upon and
approved at the Company's annual meeting on April 8, 1998.
The following table summarizes stock option activity:
<TABLE>
<CAPTION>
SHARES WEIGHTED-AVERAGE
UNDER OPTION EXERCISE PRICE
----------- -----------------
<S> <C> <C>
BALANCE, October 31, 1995 at exercise prices
from $4.40 to $5.30 64,400 4.86
Options granted at exercise price of $4.70 4,900 4.70
Options canceled at exercise prices of
$4.70 to $5.30 (16,400) 5.01
BALANCE, October 31, 1996 at exercise prices
of $4.40 to $5.30 52,900 4.80
Options canceled at exercise prices of $2.25
to $5.30 (55,950) 4.65
Options granted at exercise price of $2.25 79,900 2.25
BALANCE, October 31, 1997 at exercise price of $2.25 76,850 $2.25
Options canceled at exercise price of $2.25 (20,600) $2.25
Options granted at exercise price of $2.75 12,300 $2.75
-------- -----
BALANCE, October 31, 1998 at exercise prices
from $2.25 to $2.75 68,550 $2.34
======== =====
</TABLE>
The weighted-average fair value of options granted during the years ended
October 31, 1998, 1997 and 1996 was $1.52, $1.21 and $.83, respectively. At
October 31, 1998, 1997 and 1996, 21,450, 13,150 and 21,450 shares respectively
were available for grant.
<PAGE>
The following table summarizes information about stock options outstanding at
October 31, 1998:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
-------------------------------------------------------------------- ------------------------------------------------
Exercise Number outstanding Weighted average remaining Weighted average Number exercisable Weighted average
prices at 10/31/98 contractual life exercise price at 10/31/98 exercise price
<S> <C> <C> <C> <C> <C>
$ 2.25 56,250 4.75 $2.25 11,719 $2.25
$ 2.75 12,300 5.33 $2.75 9,333 $2.75
- -----------------------------------------------------------------------------------------------------------------------------------
68,550 4.85 $2.34 21,052 $2.48
</TABLE>
SFAS No. 123,"Accounting for Stock-Based Compensation," requires the Company to
provide pro forma information regarding net income and earnings per share as if
compensation cost for the Company's stock option plans had been determined in
accordance with the fair value of each stock option at the grant date by using
the Black-Scholes option-pricing model with the following weighted average
assumptions used for grants;dividend yield of zero for all three years; expected
volatility of 58.00% for all three years; risk-free interest rates of 5.45% in
1998, 6.10% in 1997 and 5.94% in 1996; and expected lives of three to five years
for all three years.
Under the accounting provisions of SFAS No. 123, the Company's net income (loss)
and earning (loss) per share would have been reduced to the pro forma amounts
indicated below:
1998 1997 1996
- -----------------------------------------------------------------------------
Net income (loss)
As reported (938,848) (1,117,895) 53,828
Pro forma (959,000) (1,132,000) 48,000
Net income (loss) per common
share-basic and diluted
As reported (1.26) (1.50) .07
Pro forma (1.29) (1.52) .06
9. COMMITMENTS AND CONTINGENCIES:
LEASES
At October 31, 1998, the Company was committed under operating leases,
principally for office space, through fiscal 2008.
Rent expense was approximately $605,000, $666,000 and $843,000, for the years
ended October 31, 1998, 1997 and 1996, respectively. Future minimum rents under
the remaining terms of existing operating leases are as follows:
FISCAL
-------
1999 $315,947
2000 $318,088
2001 $334,614
2002 $370,116
2003 $377,561
Thereafter $2,053,032
EMPLOYMENT AGREEMENTS
Effective January 1, 1998, the Company renewed employment agreements with its
two executive officers. One of the agreements provides for annual compensation
of $275,000 and incentive compensation of an amount equivalent to 10% of income
before provision for income taxes and expires on December 31, 2000. The other
agreement provides for annual compensation of $225,000 and incentive
compensation of an amount equal to 2% of income before provision for income
taxes and expires on December 31, 1999.
LITIGATION
Various claims, suits and complaints arise in the ordinary course of the
Company's business. In the opinion of the Company, all such pending matters are
without merit, covered by insurance or of such kind, or involve such amounts, as
would not have a material adverse effect on the financial statements of the
Company if disposed of unfavorably.
In June 1997, a former client of the Company filed a civil claim against the
Company and Gothard. The former client sought, among other remedies, to be
relieved of its obligation to pay outstanding bills due and owing the Company
and to collect damages. The Company and Gothard filed a counterclaim against the
former client seeking payment of amounts due for advertising and public
relations services and expenses. Accordingly, related accounts receivable were
reserved for at October 31, 1997. In February 1998, the Company obtained
judgment against the former client in the total amount of $1,196,000. Efforts to
collect the judgment have, thus far, been unsuccessful.
Greenstone Roberts Advertising Florida, Inc., a wholly-owned subsidiary of the
Company, The Gothard Group d/b/a Gothard/Greenstone Roberts, an entity which is
49% owned by Greenstone Roberts Advertising Florida, Inc. and Ronald Greenstone,
Chairman of the Board, Chief Executive Officer and Director of the Company were
named defendants in litigation filed by Barbara W. Gothard in Circuit Court in
Miami-Dade County, Florida on April 21, 1998. The action arises from a dispute
between the Company and Barbara Gothard concerning the management and operation
of the Gothard Group. The action seeks, among other things, the dissolution of
and the appointment of a receiver over the Gothard Group, an accounting,
injunctive relief and damages. The Company is vigorously defending the claims
against it and this case has been consolidated, under court order, with an
earlier filed action between Greenstone Roberts Florida, Inc. against The
Gothard Group and Barbara W. Gothard in which the Company seeks, among other
things, damages for breaches of contract and breaches of fiduciary duty. Written
discovery has commenced and each side has filed motions to dismiss, which have
not yet been heard by the Court. Pursuant to the agreement of the parties, the
Court has appointed a receiver for The Gothard Group. On December 15, 1998, a
Chapter 7 bankruptcy was filed on behalf of The Gothard Group, Inc. by Barbara
Gothard and a bankruptcy trustee has been appointed. Management believes that
the outcome of such litigation will not have a material adverse effect on its
financial condition of annual results of operations.
<PAGE>
GREENSTONE ROBERTS ADVERTISING, INC. AND SUBSIDIARY
INDEX TO SUPPLEMENTAL SCHEDULE
PAGE
NUMBER
------
Report of Independent Public Accountants on Schedule S-2
Schedule II - Valuation and Qualifying Accounts S-3
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS ON SCHEDULE
To the Board of Directors and Shareholders of Greenstone
Roberts Advertising, Inc.:
We have audited, in accordance with generally accepted auditing standards, the
consolidated statements of operations, shareholders' equity and cash flows of
Greenstone Roberts Advertising, Inc. and subsidiary for the year ended October
31, 1996 included in this filing and have issued our report thereon dated
January 9, 1997. Our audit was made for the purpose of forming an opinion on the
basic consolidated financial statements taken as a whole. The schedule listed in
the accompanying index is presented for purposes of complying with the
Securities and Exchange Commission's rules and is not part of the basic
consolidated financial statements. This schedule, as it relates to the year
ended October 31, 1996 has been subjected to the auditing procedures applied in
the audits of the basic consolidated financial statements and, in our opinion,
fairly states, in all material respects, the financial data required to be set
forth therein in relation to the basic consolidated financial statements taken
as a whole.
/s/ Arthur Andersen LLP
New York, New York
January 9, 1997
<PAGE>
SCHEDULE II
GREENSTONE ROBERTS ADVERTISING, INC. AND SUBSIDIARY
VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED OCTOBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
BALANCE AT CHARGED TO
DESCRIPTION BEGINNING COSTS AND RECOVERY/ BALANCE AT
FISCAL YEAR ENDED OF YEAR EXPENSES DEDUCTIONS END OF YEAR
- ------------------ ---------- ---------- ---------- ------------
ALLOWANCE FOR BAD DEBTS:
- ------------------------
<S> <C> <C> <C> <C>
October 31, 1998 $886,645 $125,912 $(25,834) $986,723
October 31, 1997 $380,994 $857,868 $(352,217) $886,645
October 31, 1996 $377,723 $ 1,419 $ (1,852) $380,994
VALUATION ALLOWANCE FOR DEFERRED TAX ASSETS:
October 31, 1998 $350,000 $274,000 - $624,000
October 31, 1997 - $350,000 - $350,000
October 31, 1996 - - - -
</TABLE>
This schedule should be read in conjunction with the accompanying consolidated
financial statements and notes thereto.
EXHIBIT INDEX
Number Description
3.1 Certificate of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-18 (Registration No. 33-26372 NY).
3.2 By-laws of the Registrant (incorporated by reference to
Exhibit 3.2 of the Registrant's Registration Statement on
Form S-18 (Registration No. 33-26372 NY)).
10.1 * 1988 Stock Option Plan (incorporated by reference to Exhibit
10.6 of the Registrant's Registration Statement on Form S-18
(Registration No. 33-26372 NY)).
10.2 * Amendment No. 1 to the 1988 Stock Option Plan dated February
7, 1990 (incorporated by reference to Exhibit 10.6 of the
Registrant's Form 10-K for the fiscal year ending October 31,
1990)).
10.3 Lease agreements between the Registrant and We're Associates
dated September 28, 1987 (incorporated by reference to Exhibit
10.4 and 10.5 of the Registrant's Registration Statement on
Form S-18 (Registration No. 33-26372 NY)).
10.4 Second and third modifications of lease agreements between the
Registrant and We're Associates dated February 14, 1989 and
July 7, 1989, respectively (incorporated by reference to
Exhibit 10.8 of the Registrant's Form 10-K for the fiscal year
ending October 31, 1990).
10.5 Lease agreements between the Registrant and Wyncreek Partners,
Ltd. dated April 17, 1989 and the first and second amendments
dated June 29, 1989 and April 10, 1990, respectively
(incorporated by reference to Exhibit 10.10 of the
Registrant's Form 10-K for the fiscal year ending October 31,
1990).
10.6 * Employment agreement between the Registrant and Ronald M.
Greenstone dated December 31, 1994. (Incorporated by reference
to Exhibit 10.6 of the Registrant's Form 10-K for the fiscal
year ending October 31, 1994).
10.7 * Employment agreement between the Registrant and Gary C.
Roberts dated December 31, 1995.
10.8 Fifth and sixth amendments of lease agreements between the
Registrant and We're Associates dated June 13, 1990 and June
18, 1991, respectively (incorporated by reference to Exhibit
10.11 of the Registrant's Form 10-K for the fiscal year ending
October 31, 1991).
10.9 Third amendment of lease agreement between the Registrant and
Wyncreek Partners, Ltd. dated January 19, 1991 (incorporated
by reference to Exhibit 10.12 of the Registrant's Form 10-K
for the fiscal year ending October 31, 1991).
10.10
Fourth and fifth amendments of lease agreement between the
Registrant and Wyncreek Partners, Ltd. dated January 22, 1992
and May 12, 1992, respectively (incorporated by reference to
Exhibit 10.10 of the Registrant's Form 10-K for the fiscal
year ending October 31, 1992).
10.11 Lease agreement between the Registrant and Lincoln-Sun Center
Ltd. dated September 4, 1992 (incorporated by reference to
Exhibit 10.11 of the Registrant's Form 10-K for the fiscal
year ending October 31, 1992).
10.12 Sixth amendment of lease agreement between the Registrant and
Wyncreek Partners, Ltd. dated August 26, 1993 (incorporated by
reference to Exhibit 10.12 of the Registrant's Form 10-K for
the fiscal year ending October 31, 1993).
10.13 Employment agreement between the Company and Ronald M.
Greenstone dated January 1, 1998.
10.14 Employment agreement between the Company and Gary C. Roberts
dated January 1, 1998.
10.15** Form of lease agreement between the Registrant and 401
Broadhollow Realty Corp. dated April 15, 1998.
21** Subsidiaries of the Company.
27** Financial data schedule
(b) Reports on Form 8-K:
On November 8, 1998, a Form 8-K was filed for the change in the
Company's independent auditors.
*Indicates a Management Contract or a Compensatory Plan or Arrangement.
** Filed herewith
EXHIBIT 10.15
401 BROAD HOLLOW REALTY CORP.
LANDLORD
GREENSTONE ROBERTS ADVERTISING, INC.
TENANT
Form of Lease
PREMISES: 401 BROAD HOLLOW ROAD
MELVILLE, NEW YORK
<PAGE>
TABLE OF EXHIBITS
EXHIBIT DESCRIPTION
A Diagram of Space
B Tenant's Work Letter
C Cleaning and Janitorial Service
D Holidays
E Rules and Regulations
F Parking
<PAGE>
AGREEMENT OF Lease, made as of this day of 1998, between 401 Broad
Hollow Realty Corp., a New York corporation having its principal office at 401
Broad Hollow Road, Melville, New York 11747 (hereinafter, "Landlord") and
Greenstone Roberts Advertising, Inc., a ____________ corporation having an
office at One Huntington Quadrangle, Suite 1C-14, Melville, New York 11747,
(hereinafter, "Tenant").
W I T N E S S E T H
Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the space(s) substantially as shown on the diagram attached hereto and
made a part hereof as Exhibit A on a portion of the second floor of the building
known as 401 Broad Hollow Road, Melville, New York (hereinafter, the
"Building"), situated upon a plot of land in the Town of Huntington, County of
Suffolk and State of New York, (hereinafter, the "Land"); said Land and Building
sometimes referred to herein as the "Property", together with all fixtures,
equipment, improvements, installations and appurtenances which at the
commencement of or during the term of this Lease are attached thereto (except
items not deemed to be included therein and removable by Tenant as provided in
Article V hereof), which space(s), fixtures, equipment, improvements,
installations and appurtenances are hereinafter sometimes called the "Demised
Premises", for a Preliminary Term (as defined in Section 4.05) and, thereafter,
a term of ten (10) years (or until such term shall sooner cease and expire as
hereinafter provided) to commence (hereinafter, the "Commencement Date"),
subject to Sections "4.03" and "4.04" herein, on the earlier to occur of (i)
Tenant actually taking possession of the Demised Premises for the purpose of
conducting its business operations, (ii) the date on which the Demised Premises
are Substantially Ready for Occupancy (as said term is defined in Section 4.03),
or (iii) June 1, 1998; and to end at midnight on the tenth (10th) anniversary of
the Commencement Date (hereinafter, the "Expiration Date"), said Commencement
Date and Expiration Date being subject to the further provisions of this Lease,
at a base annual rental set forth in Article XVI herein, which Tenant agrees to
pay in equal monthly installments in advance on the first day of each calendar
month during said term, at the office of Landlord or such other place as
Landlord may designate in writing, without any set-off or deduction whatsoever.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and assigns, hereby
covenant as follows:
ARTICLE I
Definitions
The terms defined in this Article shall, for all purposes of this
Lease, and all agreements supplemental hereto, have the meanings specified
herein unless the context required otherwise.
1.01. "Term of this Lease", shall mean the Preliminary Term and that
period between the Commencement Date and the Expiration Date, or such earlier
date(s) on which such term may expire or be cancelled or terminated pursuant to
any of the conditions or covenants of this Lease or pursuant to law.
1.02. "Tenant's Pro Rata Share" shall mean 12.2%.
1.03. "Lease Year" shall mean any twelve (12) month consecutive period
commencing on the Commencement Date.
1.04. "Common Areas" shall mean the lobbies, entrances,
stairs, elevators, off street loading berths, and other public portions and
common areas or building service areas of the Building and the non-exclusive
indoor and outdoor parking areas on the Land.
1.05. The "Rentable Area" shall mean 12,944 square feet.
1.06 The "Useable Area" shall mean 10,433 square feet.
ARTICLE II
Rent
2.01. Tenant shall pay the "Base Rent" and the "Additional
Rent" (as such quoted terms are hereinafter defined) as hereinafter provided.
ARTICLE III
Use of the Demised Premises
3.01. Tenant shall use and occupy the Demised Premises for executive
and general offices for the transaction of Tenant's business which is an
advertising/public relations agency (hereinafter the "Permitted Use"), and for
no other purpose. During the term of this Lease, Landlord agrees not to lease
space in the Building to any other tenant for the purpose of using such space to
conduct advertising and/or public relations operations. Tenant shall be limited
to a maximum occupancy of full time/part time personnel at the Demised Premises
of no more than one (1) person per 200 rentable square feet at any point in
time.
3.02. 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. Tenant shall not permit the Demised
Premises to be used or operated in violation of any governmental requirements or
requirements of the New York Board of Fire Underwriters.
3.03. Tenant or the Tenant's servants, employees, licensees, invitees
or visitors shall not use the halls, corridors, stairways, elevators or any
other public portion of the Building or Property for eating or drinking or in a
manner so as to cause any congestion of the public portions of the Building or
the sidewalks or roadways adjoining the Building whether by trucking or by the
congregating or loitering thereon of the Tenant and/or the servants, employees,
licensees, invitees or visitors of the Tenant.
<PAGE>
ARTICLE IV
Completion and Occupancy
4.01. Tenant has inspected the Demised Premises and the Building and
is thoroughly acquainted with their respective conditions and acknowledges that
the signing of this Lease Agreement for the Demised Premises by Tenant shall be
conclusive evidence that the Demised Premises and the Building are in good and
satisfactory condition at the time of such signing.
4.02. Landlord shall have no obligation to alter, improve, decorate or
otherwise prepare the Demised Premises for Tenant's occupancy. Tenant shall not
be entitled to any abatement of rent due to the failure of Landlord to complete
and open for use, by the Commencement Date, the gym and cafeteria planned for
the Building. If Landlord is required by the terms hereof to do any such work
without expense to Tenant and the cost of such work is increased due to any
delay resulting from any act or omission of Tenant, its agents or employees,
Tenant shall forthwith pay to Landlord an amount equal to such increase in cost.
4.03. The Demised Premises shall be deemed "Substantially Ready for
Occupancy" on date that Tenant's Work to be performed in accordance with Exhibit
B shall have been substantially completed and permanent or temporary
Certificates of Occupancy (or their equivalent) have been issued with respect to
the Demised Premises, notwithstanding the fact that minor or any substantial
details of construction, mechanical adjustment, or decoration remain to be
performed, the non-completion of which do not materially interfere with Tenant's
use of the Demised Premises.
4.04. If Landlord is unable to give possession of the Demised Premises
by June 1, 1998, because a Certificate of Occupancy, whether it be a temporary
Certificate of Occupancy or Permanent Certificate of Occupancy, has not been
issued for the Building permitting Tenant's occupancy, or for any other reason
Landlord shall not be subject to any liability for failure to give possession on
said date and the validity of this Lease shall not be impaired under such
circumstances but the Commencement Date shall be delayed (provided Tenant is not
responsible for Landlord's inability to complete construction or the delay is
due to reasons beyond Landlord's control) until after Landlord shall have
obtained a temporary or permanent Certificate of Occupancy for the Building or
is otherwise able to give possession of the Demised Premises to the Tenant,
provided however, if Landlord is unable to give possession of the Demised
Premises by December 1, 1998 and such inability is not due in any way to
Tenant's Delay, then in that event, Tenant, at Tenant's sole option, may elect
to terminate this Lease by giving notice (the "Termination Notice") to Landlord
within ten (10) days after December 1, 1998, and upon the giving of the
Termination Notice, this Lease shall expire as if such date were the date set
forth herein for expiration, and neither party shall have any further recourse
against the other. Should Tenant fail to give the Termination Notice within such
ten (10) day period Tenant shall be deemed to have waived such termination
right. The provisions of this Section are intended to constitute "express
provision to the contrary" within reading of Section 223-A of the New York Real
Property Law.
4.05. From the period beginning with the date hereof and ending on the
Commencement Date (the "Preliminary Term"), Tenant shall be bound to keep and
perform all of the terms, covenants, conditions, provisions and agreements to be
kept and performed by Tenant under this Lease, except that Tenant shall not be
obligated to pay Base Rent or those items of Additional Rent described in
Articles XI, XII, XIX, XXIV AND XXX of this Lease. During the Preliminary Term,
Landlord shall grant Tenant access to the Demised Premises in accordance with
Exhibit B to perform Tenant's Work.
ARTICLE V
Alterations
5.01. Initially, Tenant shall finish the Demised Premises in
accordance with Tenant's Work Letter attached hereto as Exhibit B ("Tenant's
Work"). After completion of Tenant's Work, Tenant shall make no alterations or
changes in or to the Demised Premises (hereinafter, collectively "Tenant's
Changes"), without Landlord's prior written consent provided however, such
consent shall not be required in the case of (i) non-structural Tenant Changes
not visible from the exterior of the Demised Premises and not affecting the
integrity of the Building structure or Building systems and which can be
accomplished at a total cost not to exceed $10,000; and (ii) any Tenant Change
which is solely in the nature of a decorative change not visible from the
exterior of the Demised Premises (i.e. painting, decorating and wall covering).
Tenant shall be obligated only to notify Landlord of any such non-structural
Tenant Changes costing less than $10,000 or any such decorative change prior to
proceeding with such work. With respect to non-structural Tenant Changes
exceeding a cost of $10,000 and not visible from the exterior of the Demised
Premises, Tenant shall not make or proceed with any such Tenant Change without
the prior written consent of the Landlord, which shall not be unreasonably
withheld or delayed, and if Landlord shall fail to respond to Tenant's request
to consent within ten (10) business days of such request, Landlord shall be
deemed to have consented to such non-structural Tenant Change. Consent to
requests for Tenant Changes involving the integrity of the Building structure or
Building systems or which are visible from the exterior of the Demised Premises
shall be given or withheld by Landlord in Landlord's sole and absolute
discretion. All Tenant's Changes which shall be permitted by Landlord shall be
accomplished at Tenant's expense by contractors approved in writing by Landlord.
All installations, including Tenant's Initial Installations, installed in the
Demised Premises at any time, either by Tenant or by Landlord on behalf of
Tenant, shall, upon installation, become the property of Landlord and shall
remain upon and be surrendered with the Demised Premises unless Landlord, by
written notice to Tenant no later than thirty (30) days prior to the Expiration
Date, elects to have them removed by Tenant, in which event the same shall be
removed by Tenant at Tenant's expense prior to the Expiration Date.
5.02. Nothing in this Article shall be construed to give Landlord
title to or prevent Tenant's removal of trade fixtures, moveable office
furniture and equipment, but upon removal of any such equipment from the Demised
Premises or upon removal of other installations as may be required by Landlord,
Tenant shall immediately and at its expense, repair and restore the Demised
Premises to the condition existing prior to such installation, reasonable wear
and tear excepted and shall repair any damage to the Demised Premises or the
Building due to such removal.
5.03. All property permitted or required to be removed by Tenant at
the end of the term hereof remaining in the Demised Premises after Tenant's
removal therefrom shall be deemed abandoned and may, at the election of
Landlord, be either retained as Landlord's property or removed from the Demised
Premises by Landlord at Tenant's expense.
5.04. Prior to commencing any Tenant's Changes, Tenant shall, at its
expense, obtain all permits, approvals and certificates required by any
governmental or quasi-governmental bodies and upon completion, certificates of
final approval thereof and shall promptly deliver duplicates of all such
permits, approvals and certificates to Landlord. All Tenant's Changes shall be
performed in compliance with all applicable requirements of insurance bodies
having jurisdiction over the Demised Premises, and in such manner as not to
interfere with, delay, or impose any additional expense upon Landlord in the
construction, maintenance or operation of the Building. Tenant, at its expense,
and with due diligence and dispatch, shall procure the cancellation or discharge
of all notices of violation or mechanic's liens arising from or otherwise
connected with Tenant's Changes. Additionally, Tenant agrees to carry and will
cause Tenant's contractors and sub-contractors to carry such workers'
compensation, general liability, personal and property damage insurance as
Landlord may reasonably require.
5.05. Landlord may require submission to it of plans and
specifications in connection with granting or withholding its consent to any
Tenant's Change. Landlord shall have no obligation to consent to any plans and
specifications concerning any Tenant's Change if said plans and specifications
have not been prepared or reviewed, as the case may be, by Landlord's mechanical
engineer at Tenant's cost and expense. Prior to granting its consent to any such
Tenant's Change, Landlord may impose such reasonable conditions as Landlord, in
its sole discretion, may consider desirable.
5.06. In the event Tenant or its agents shall physically accomplish
any Tenant's Change, Tenant shall pay to Landlord as Additional Rent upon being
presented with a bill therefor, a supervision fee equal to the reasonable, third
party out-of-pocket fees incurred by Landlord, or if such supervisory services
are conducted by Landlord's "in-house" personnel, Tenant shall pay Landlord a
fee which shall be commercially reasonable and competitive.
ARTICLE VI
Repairs
6.01. Landlord shall maintain and repair the Common Areas of
the Building, both exterior and interior. Tenant shall take good care of the
Demised Premises and the fixtures and appurtenances therein and, at Tenant's
sole cost and expense, make all non-structural repairs thereto as and when
needed to preserve said Demised Premises and fixtures in good working order and
condition, reasonable wear and tear, obsolescence and damage from the elements,
fire or other casualty, excepted. Notwithstanding the foregoing, all damage or
injury to the Demised Premises or to any other part of the Building, or to its
fixtures, equipment and appurtenances whether requiring structural or
non-structural repairs, caused by or resulting from carelessness, omission,
neglect or improper conduct of Tenant, Tenant's servants, employees, invitees or
licensees, shall be repaired promptly by Tenant at its sole cost and expense, to
the satisfaction of Landlord in its sole and absolute judgment. Tenant shall
also repair all damage to the Building and the Demised Premises caused by the
moving of Tenant's fixtures, furniture or equipment. All the aforesaid repairs
shall be of the quality and class equal to the original work or construction.
6.02. Tenant shall give Landlord prompt notice of any defective
condition in any plumbing, heating/ventilation system or electrical lines
located in, servicing or passing through the Demised Premises and, following
such notice, Landlord shall remedy the condition with due diligence but at the
expense of Tenant if repairs are necessitated by damage or injury attributable
to Tenant, or Tenant's servants, agents, employees, invitees or licensees as
aforesaid. There shall be no allowance to Tenant for a diminution of rental
value and no liability on the part of Landlord by reason of inconvenience,
annoyance or injury to business arising from Landlord or other tenants making or
failing to make any repairs, alterations, additions or improvements in or to any
portion of the Building or the Demised Premises or in and to the fixtures,
appurtenances or equipment thereof unless such inconvenience, annoyance or
injury was caused by Landlord's, or its servants, or employees', negligent acts
or failure to act, and if as a result of such failure to make any such repairs,
alterations, additions or improvements, Tenant is unable to conduct its business
operations at the Demised Premises for a period of ten (10) consecutive Normal
Business Days or more, then, in such event, Tenant shall be entitled to an
abatement of Base Rent and Additional Rent for each day during such period that
Tenant was unable to conduct its business operations. Notwithstanding the
foregoing, in no event shall the Base Rent or Additional Rent be setoff
hereunder, it being understood that Tenant may bring a separate action or legal
proceeding.
ARTICLE VII
Window Cleaning
7.01. Tenant will not clean, nor require, permit, suffer or allow any
window in the Demised Premises to be cleaned from the outside in violation of
Section 202 of the Labor Law or any other applicable law or of the rules of any
board or body having or asserting jurisdiction over the Demised Premises.
ARTICLE VIII
Compliance With Laws
8.01. Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirements of any public authority
with respect to the Demised Premises or the use or occupation thereof. Prior to
the Commencement Date, if Tenant is then in possession of the Demised Premises,
and at all times thereafter, Tenant shall promptly comply with all present and
future laws, orders and regulations (including, without limitation, the
Americans with Disabilities Act) of all state, federal, town, municipal and
local governments, departments, commissions and boards or any direction of any
public officer pursuant to law, and all orders, rules and regulations of the New
York Board of Fire Underwriters or any similar body which shall impose any
violation, order or duty upon Landlord or Tenant with respect to the Demised
Premises if arising out of Tenant's use or manner of use of the Demised Premises
(in which event Tenant shall effect such compliance at its sole cost and
expense), or the Building or the Property if arising out of Tenant's use or
manner of use of the Demised Premises or Tenant's acts in or about the Building
or Property (in which event, notwithstanding anything herein to the contrary,
Landlord shall effect such compliance but Tenant shall promptly pay on demand
the cost thereof). Tenant shall pay all costs, expenses, fines, penalties or
damages, which may be imposed upon Landlord by reason of Tenant's failure to
comply with the provisions of this Article and if by reason of such failure the
fire insurance rate shall, at the beginning of this Lease or at any time
thereafter, be higher than it otherwise would be, then Tenant shall reimburse
Landlord, as Additional Rent hereunder, for that portion of all fire insurance
premiums thereafter paid by Landlord which shall have been charged because of
such failure by Tenant, and shall make such reimbursement upon the first day of
the month following such outlay by Landlord.
8.02. Landlord represents, to the best of its knowledge, there exists
no Hazardous Materials or environmental conditions at the Property, Building or
Demised Premises which violate any applicable federal, state or local law, rule,
regulation or order (collectively, "Environmental Laws"). The Tenant agrees that
the Demised Premises shall be kept free of Hazardous Materials, and shall not be
used to generate, manufacture, refine, transport, treat, store, handle, dispose,
transfer, produce, process or in any manner deal with, Hazardous Materials, in
violation of Environmental Laws, and the Tenant shall not cause or permit, as a
result of any intentional or unintentional act or omission on the part of
Tenant, the installation of Hazardous Materials in the Demised Premises or unto
the Building or Property or suffer the presence of Hazardous Materials on the
Property. Tenant agrees to comply with and insure compliance by all of its
servants, employees, agents, visitors, invitees and subtenants with all
Environmental Laws. In the event that the Tenant receives any notice or advice
from any governmental agency or subtenant with regard to Hazardous Materials on,
from or affecting the Demised Premises, Building or Property, the Tenant agrees
to immediately notify the Landlord. Failure to comply with this Section 8.02
shall constitute a material default under this Lease. In the event of such
default, Landlord shall have all rights available under this Lease and at law or
equity, including, without limitation, the right to either (i) terminate the
Lease and collect damages Landlord incurs as a result of such default,
including, without limitation, cleanup costs incurred by Landlord as a resulting
from the cleanup of any Hazardous Materials released into the Demised Premises,
Building or Property by Tenant; or (ii) if such Hazardous Materials were, in
fact, released by Tenant, require the cleanup of such Hazardous Materials at the
Tenant's sole cost and expense while still enforcing the remaining terms and
obligations of the Lease. For these purposes, "Hazardous Materials" shall
include, without limitation, any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, hazardous or toxic substances, or related
or similar materials, asbestos or any material containing asbestos, or any other
substance or material as defined by any Environmental Law, including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Sections 9601, ET SEQ.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Section 1801, ET SEQ.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901, ET
SEQ.), and in the regulations adopted and publications promulgated pursuant
thereto. 8.03. Tenant shall not place a load upon any floor of the Demised
Premises exceeding the floor load per square foot area which said floor was
designed to carry and which is allowed by law.
<PAGE>
ARTICLE IX
Subordination, Attornment, Notice to Lessors
and Mortgagees
9.01. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all present and future ground leases,
overriding leases and underlying leases and/or grants of term of the Land and/or
the Building or the portion thereof in which the Demised Premises are located in
whole or in part now or hereafter existing and to all mortgages and building
loan agreements, which may now or hereafter affect 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, consolidations and
corrections of such mortgages. The provisions of this Article shall be
self-operative and no further instrument of subordination shall be required.
9.02. In confirmation of such subordination, Tenant shall promptly
execute and deliver, at its own cost and expense, any instrument, in recordable
form if requested by Landlord, that Landlord, the lessor of any such lease or
the holder of any such mortgage or any of their respective successors in
interest may reasonably request to evidence such subordination. The leases to
which this Lease is, at the time referred to, subject and subordinate pursuant
to this Article, are sometimes hereinafter called "superior leases", and the
mortgages to which this Lease is, at the time referred to, subject and
subordinate are sometimes hereinafter called "superior mortgages", and the
lessor of a superior lease or its successor in interest at the time referred to
is sometimes hereinafter called a "lessor", and the mortgagee of a superior
mortgage is sometime referred to as "mortgagee".
9.03. Landlord hereby notifies Tenant that this Lease may not be
modified or amended so as to reduce the rent, shorten the term, or adversely
affect in any other respect to any material extent the rights of Landlord
hereunder, or be cancelled or surrendered without the prior written consent of
each lessor or mortgagee as defined in Section 9.02 in each instance, except
that said consent shall not be required for the institution or prosecution of
any action or proceeding against Tenant by reason of a default on the part of
Tenant under the terms of this Lease.
9.04. This Lease shall not terminate or be terminable by Tenant by
reason of any termination of any superior lease, by summary proceedings, or
otherwise, unless the lessor under the terminated superior lease shall elect in
connection therewith to terminate this Lease and the right of Tenant to
possession of the Demised Premises. Tenant agrees without further instruments of
attornment in such case, to attorn to such lessor, to waive the provisions of
any statute or rule of law now or hereafter in effect which may give or purport
to give Tenant any right of election to terminate this Lease or to surrender
possession of the Demised Premises in the event such superior lease is
terminated, and that unless and until said lessor shall elect to terminate this
Lease and extinguish the leasehold estate demised hereunder, this Lease shall
not be affected in any way whatsoever by any such proceeding or termination.
Tenant shall take no steps to terminate this Lease, whether or not such superior
lease be terminated, without giving written notice to such lessor, and a
reasonable opportunity to cure (without such lessor being obligated to cure),
any default on the part of Landlord under this Lease.
9.05. If, in connection with the procurement, continuation or renewal
of any financing for which the Land, and/or the Building or the interest of the
lessee therein under a superior lease represents collateral in whole or in part,
an institutional lender shall request reasonable modifications of this Lease as
a condition of such financing, Tenant will not withhold its consent thereto
provided that such modifications do not increase the obligations of Tenant under
this Lease or adversely affect any rights of Tenant under this Lease.
ARTICLE X
Condemnation
10.01. If the whole of the Demised Premises shall be taken for any
public or quasi-public use by any lawful power or authority by exercise of the
right of condemnation or of eminent domain, or by agreement between Landlord and
those having the authority to exercise such right (hereinafter called "Taking"),
the term of this Lease and all rights of Tenant hereunder except as hereinafter
provided, shall cease and expire as of the date of vesting of title as a result
of the Taking, and the Base Rent and Additional Rent payable under this Lease
shall abate from the date on which the Taking occurs.
10.02. In the event of a Taking of less than the whole of the Demised
Premises, or a portion of the parking area, this Lease shall cease and expire in
respect of the portion of the Demised Premises and/or parking area taken upon
vesting of title as a result of the Taking and, if the Taking results in the
portion of the Demised Premises remaining after the Taking being inadequate, in
the reasonable judgment of Landlord and Tenant (subject to Article XLVIII if the
parties are unable to agree) for the efficient, economical operation of the
Tenant's business conducted at such time, this Lease shall terminate, cease and
expire in its entirety upon vesting of title as a result of the Taking. If this
Lease shall not terminate as aforesaid: (i) the new Base Rent payable under this
Lease shall be the product of the total Base Rent payable under this Lease
multiplied by a fraction, the numerator of which is the rentable square foot
area of the Demised Premises remaining after the Taking, and the denominator of
which is the rentable square foot area of the Demised Premises immediately
preceding the Taking, and in the event any area of the Demised Premises is
rendered unusable for a period of time due to Landlord making repairs as a
result of such Taking, and Tenant vacates such unusable portion of the Demised
Premises during such time period, the Base Rent shall be further apportioned
during such time period according to the part of the Demised Premises which was
unusable and, (ii) the net award for the Taking shall be paid to and first used
by Landlord (subject to the rights of any mortgagee) to restore the portion of
the Demised Premises and the Building remaining after the Taking to
substantially the same condition and tenantability as existed immediately
preceding the date of the Taking, and the remainder shall be kept by Landlord as
its award.
10.03. In the event of a Taking of less than the whole of the Demised
Premises which occurs during the period of two (2) years next preceding the
termination date of this Lease, Landlord may elect to terminate this Lease by
giving notice to the Tenant of such election, not more than thirty (30) days
after the actual Taking by the condemning authority, stating the date of
termination, which date of termination shall be no more than thirty (30) days
after the date on which such notice of termination is given and upon the date
specified in such notice, this Lease and the term hereof shall cease. On or
before such termination date, Tenant shall vacate the Demised Premises, and any
of Tenant's property remaining in the Demised Premises subsequent to such
termination date shall be deemed abandoned by Tenant and shall become the
property of Landlord unless, Landlord, in its notice of termination elects to
relinquish Landlord's right thereto and to have such property removed by Tenant
prior to the expiration of this Lease, at Tenant's expense.
10.04. In the event of a Taking of the Demised Premises or any part
thereof, and whether or not this Lease is terminated, Tenant shall have no claim
against Landlord or the condemning authority for the value of the unexpired term
of this Lease. Tenant agrees that in any condemnation proceeding, Tenant may
make a claim only for the value of Tenant's fixtures, equipment and moving
expenses, and only provided that such claim does not reduce the Landlord's
award.
ARTICLE XI
Assignment and Subletting
11.01. Tenant shall not assign, mortgage or encumber this Lease, its
interest hereunder or the estate granted hereby, nor sublet or suffer or permit
the Demised Premises or any part thereof to be used by others, without the prior
written consent of Landlord in each instance.
11.02. If Tenant should assign its interest in this Lease, or if all
or any part of the Demised Premises be underlet or occupied by anybody other
than Tenant, Landlord may, after default by Tenant, collect rent from the
assignee, under-tenant or occupant, as the case may be, and apply the net amount
collected to the rent herein reserved, but no such assignment, underletting,
occupancy or collection shall be deemed a waiver of this covenant, or the
acceptance of the assignee, under-tenant or occupant as Tenant, or a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant
contained herein. The consent by Landlord to any assignment or underletting
shall not in any way be construed to relieve Tenant, or any assignee or
subtenant, as the case may be, from obtaining the express consent in writing of
Landlord to any further assignment or underletting in accordance with and
subject to the further provisions of this Article XI. 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.
11.03. If Tenant shall desire to assign this Lease, or to sublet the
Demised Premises, it shall no later than sixty (60) days prior to the proposed
effective date of the assignment or sublet, submit to Landlord a written request
for Landlord's consent to such assignment or subletting, which request shall
contain the following information: (i) the name and address of the proposed
assignee or subtenant; (ii) the terms and conditions of the proposed assignment
or subletting; (iii) the nature and character of the business of the proposed
assignee or subtenant and its proposed use of the Demised Premises; and (iv)
current financial information and any other information Landlord may request.
Landlord may then, by notice to such effect given to Tenant within thirty (30)
days after either the receipt of Tenant's request for consent or the receipt of
such further information as Landlord may request pursuant to this Section 11.03
above, whichever is later,terminate this Lease on a date to be specified in said
notice (hereinafter, the "Termination Date") which date shall be not earlier
than one (1) day before the effective date of the proposed assignment or
subletting nor later than sixty-one (61) days after said effective date. Tenant
shall then vacate and surrender the Demised Premises on or before the
Termination Date and the Term of this Lease shall end on the Termination Date as
if that were the Expiration Date. Landlord shall be free to, and shall have no
liability to Tenant if Landlord should, Lease all or any part of the Demised
Premises to Tenant's prospective assignee or subtenant.
11.04. If Landlord shall not exercise its option to terminate this
Lease pursuant to Section 11.03 above, Landlord shall not unreasonably withhold
its consent to the proposed assignment or subletting referred to in Tenant's
notice given pursuant to said Section, provided that the following further
conditions shall be fulfilled:
(1) The Demised Premises shall not, without Landlord's prior consent,
have been listed or otherwise publicly advertised for assignment or subletting
at a rental less than the prevailing rental for space in the Building;
(2) Tenant shall not then be in default hereunder beyond the time
herein provided, if any, to cure such default;
(3) The proposed assignee or subtenant shall have a financial
standing, be of a character, be engaged in a business, and propose to use the
Demised Premises in a manner in keeping with the standards in such respect of
the other tenancies in the Building;
(4) Landlord does not or in Landlord's reasonable judgment will not
have, within six (6) months after the date of said Tenant's notice, comparable
space available for the proposed subtenant or assignee in the Building, the
proposed assignee or subtenant shall not then be a tenant, subtenant or assignee
of any space in the Building other than of space included in the Demised
Premises nor shall the proposed assignee or sublessee be a person or entity with
whom Landlord is then negotiating to lease space in the Building;
(5) The proposed use of the Demised Premises by the proposed assignee
or subtenant shall not (a) be likely to increase Landlord's operating expenses
beyond that which would be incurred for use of other tenancies in the Building,
or (b) increase the burden on existing cleaning services or elevators over the
burden prior to such proposed subletting or assignment, or (c) be inconsistent
with the Permitted Use.
(6) No subletting shall end later than one (1) day before the
Expiration Date of this Lease or shall be for a term of less than two (2) years
unless it commences less that two (2) years before the Expiration Date;
(7) No subletting shall be for less than one-half of the floor space
of the entire Demised Premises;
(8) Tenant shall reimburse Landlord on demand for any costs that may
be incurred by Landlord in connection with said assignment or sublease,
including, without limitation, the costs of making investigations as to the
acceptability of the proposed assignee or subtenant, and reasonable legal costs
incurred in connection with the granting of any requested consent;
(9) The form of the proposed sublease shall be in form reasonably
satisfactory to Landlord and shall comply with the applicable provisions of this
Article;
(10) 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 a use which is for executive and
general offices, and (iii) will not violate any negative covenant as to use
contained in any other lease of space in the Building; (iv) will not materially
increase the density of use by way of an increase in employees, customers and/or
invitees such that the density of use is increased to a level which is not in
keeping with the then average density of the remaining tenants in the Building
at that time;
(11) The proposed assignee or subtenant shall not be: a government or
any subdivision or agency thereof; medical offices; a school, college,
university or educational institution of any type, whether for profit or
non-profit; an employment or recruitment agency; a travel agency; or a messenger
service.
(12) Tenant shall have complied with the provisions of Section 11.03
and Landlord shall not have exercised its option to terminate under said Section
11.03 within the time permitted therefor.
11.05. Every subletting hereunder is subject to the express condition,
and by accepting a sublease hereunder each subtenant shall be conclusively
deemed to have agreed, that if this Lease should be terminated prior to the
Expiration Date or if Landlord should succeed to Tenant's estate in the Demised
Premises, then at Landlord's election the subtenant shall either surrender the
Demised Premises to Landlord within sixty (60) days of Landlord's request
therefor, or attorn to and recognize Landlord as the subtenant's landlord under
the sublease and the subtenant shall promptly execute and deliver any instrument
Landlord may request to evidence such attornment.
11.06. Tenant shall furnish Landlord with a counterpart (which may be
a reproduced copy) of each sublease or assignment made hereunder within ten (10)
days after the date of its execution.
11.07. Notwithstanding any assignment and assumption by the assignee
of all or any part of the obligations of Tenant hereunder, Tenant herein named,
and each immediate or remote successor in interest of Tenant named herein, shall
remain liable jointly and severally (as a primary obligor) with its assignee and
all subsequent assignees for the performance of Tenant's obligations hereunder,
and, without limiting the generality of the foregoing, shall remain liable to
Landlord for all acts and omissions on the part of any assignee subsequent to it
in violation of any of the obligations of this Lease.
11.08. Notwithstanding anything to the contrary contained in this
Lease, no assignment of Tenant's interest in this Lease shall be binding upon
Landlord unless the assignee, and if the assignee is a partnership, the
individual partners, shall execute and deliver to Landlord an agreement, in
recordable form, whereby such assignee agrees unconditionally to be personally
bound by and to perform all of the obligations of Tenant hereunder and further
expressly agrees that notwithstanding such assignment the provisions of this
Article shall continue to be binding upon such assignee with respect to all
future assignments and transfers. A failure or refusal of such assignee to
execute or deliver such an agreement in recordable form shall not release the
assignee from its liability for the obligations of Tenant hereunder assumed by
acceptance of the assignment of this Lease.
11.09. If Tenant shall assign or sublet the Demised Premises to anyone
for rents which for any period shall exceed the Base Rent and Additional Rent
payable under this Lease for the same period, Tenant shall pay Landlord, as
Additional Rent hereunder, (i) in the case of an assignment, the amount of all
monies, if any, which assignee has agreed to and does pay to Tenant in
consideration of making the assignment less, however all reasonable
out-of-pocket costs actually incurred by Tenant in connection with the making of
such assignment, including but not limited to any brokerage fees, legal fees and
alteration costs, and (ii) in the case of a sublet, the amount of any rents,
additional charges or other consideration payable under the sublease to Tenant
by the sublessee which is in excess of the Base Rent and Additional Rent
accruing during the term of the sublease allocable to that portion of the
Demised Premises affected by the sublease pursuant to the terms hereof, plus the
amounts, if any, payable by such sublessee to Tenant pursuant to any side
agreement as consideration (partial or otherwise) for Tenant making such
subletting, less, however, all reasonable out-of-pocket costs actually incurred
by Tenant in connection with the making of the sublease such as brokerage fees,
legal fees and alteration costs. The sums payable under this Section 11.09 shall
be paid to Landlord as Additional Rent as and when payable by the subtenant to
Tenant.
11.10. Any transfer, by operation of law or otherwise, of Tenant's
interest in this Lease (in whole or in part) or of a fifty (50%) percent or
greater interest in Tenant (whether stock, partnership interest or otherwise)
shall be deemed an assignment of this Lease within the meaning of this Article.
If there has been a previous transfer of less than a fifty (50%) percent
interest in Tenant, then any simultaneous or subsequent transfer of an interest
in Tenant which, when added to the total percentage interest previously
transferred, total a transfer of greater than a fifty (50%) percent interest in
Tenant, shall be deemed an assignment of Tenant's interest in this Lease within
the meaning of this Article.
11.11. Notwithstanding the provisions of Section 11.04 hereof, if
Tenant is a corporation, Tenant shall have the right, without the consent of
Landlord, to assign its interest in this Lease to a parent, subsidiary or
affiliate of Tenant or any corporation which is a successor to Tenant either by
merger or consolidation, or in connection with the transfer of all of the
business and assets of the Tenant or a public offering of Tenant's stock
provided that the successor shall have a tangible net worth, determined in
accordance with generally accepted accounting standards, at least equal to the
tangible net worth of Tenant at the time of the transaction. No such assignment
shall be valid unless, within ten (10) days prior to the effective date thereof,
Tenant shall deliver to Landlord (i) a duplicate original instrument of
assignment in form and substance satisfactory to Landlord, duly executed by
Tenant, (ii) an instrument in form and substance satisfactory to Landlord, duly
executed by the assignee, in which such assignee shall assume observance and
performance of and to be personally bound by, all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed.
11.12. In the event that (i) Landlord fails to exercise any of its
options under this Article and (ii) Tenant fails to execute and deliver the
assignment or sublease to which Landlord consented within forty-five (45) days
after the giving of such consent, then, Tenant shall again comply with all of
the provisions and conditions of this Article before assigning its interest in
this Lease or subletting the Demised Premises.
ARTICLE XII
Electricity
12.01. Tenant shall make no alterations or additions to the electrical
distribution system, electrical equipment or appliances without the prior
written consent of Landlord in each instance. Tenant covenants and agrees that
at all times its use of electric current shall not exceed the capacity of
existing feeders to the Building or the risers or wiring installation therein
and Tenant may not use any electrical equipment which, in Landlord's sole
judgment, will overload such installations or interfere with the use thereof by
other tenants of the Building.
12.02. Landlord shall furnish at Tenant's expense electric current to
Tenant in the Demised Premises in accordance with the Building electric design
of two (2) watts per square foot of Useable Area for lighting and one (1) watt
per square foot of Useable Area for power. Tenant shall be responsible for the
installation, cost, operation and maintenance of such additional fixtures or
systems and business machines as Tenant shall deem necessary and which Landlord
shall permit in writing in accordance with the provisions of this Lease to
accommodate any total lighting and power electrical load in the Demised Premises
occasioned by Tenant's use thereof in excess of three (3) watts per square foot
of Useable Area.
12.03. Except as otherwise provided in Section 12.08 hereof, effective
as of the Commencement Date, Tenant shall pay to Landlord as Additional Rent an
amount determined by multiplying the Tenant's Rentable Area by $2.25 per square
foot (subject to adjustment as hereinafter specified), said sum to be composed
of the following: (i) for Tenant's consumption of electrical power in the
Demised Premises, an amount determined by multiplying the Rentable Area by a
factor (hereinafter called the "Demised Premises Electricity Factor") of $1.25
per square foot, and (ii) for Tenant's Pro-Rata Share (as defined in Section
1.02) of the Building Electricity Costs (as hereinafter defined), an amount
determined by multiplying the Rentable Area by a factor (hereinafter called the
"Building Electricity Factor") of $1.00 per square foot. As used in this Article
XII, "Building Electricity Costs" shall mean all costs and expenses incurred by
the Landlord for the purchase and/or use of electricity (a) throughout the
Building during Normal Business Hours (as defined by Section 24.08 hereof),
which shall include but not be limited to that electricity used for all heating,
ventilating, air-conditioning, machinery, mechanical and service facilities,
elevators, lobbies, entrances, corridors, stairwells, bathrooms, elevators, and
loading docks, and (b) for Building site lighting and after Normal Business
Hours. Building Electricity Costs shall not include: (x) electricity for which
any tenant in the Building is obligated to pay Landlord pursuant to the
provisions of Section 12.03(i), and (y) electricity provided to other tenants in
the Building for heating, ventilating or air-conditioning after Normal Business
Hours. The Demised Premises Electricity Factor and the Building Electricity
Factor shall both be subject to adjustment pursuant to the provisions of
Sections 12.04, 12.05 and 12.06. The Additional Rent provided for in this
Article shall be payable in equal monthly installments in advance on the first
day of each and every calendar month. If Landlord shall commence supplying such
electric current on any day other than the first day of a calendar month, such
Additional Rent payable for such calendar month shall be prorated.
12.04. The Demised Premises Electricity Factor and Building
Electricity Factor shall be subject to increase by a percentage equal to the
percentage increase in cost to the Landlord of supplying such electricity, as a
result of the occurrence of any of the following events:
(a) An increase in the public utility rate for the supply of
electrical energy to the Building. As used in this Article XII, the term "public
utility rate" shall include any fees, tariffs, rates or surcharges foreseen or
unforeseen, now or at any time in the future imposed which Landlord is required
to pay in connection with obtaining electrical energy for the Building,
including without limitation, fuel adjustment increases;
(b) An increase in any sales, excise or similar taxes, or the addition
of or increase in any other similar charges levied for the purchase of electric
energy;
(c) An increase in Tenant's consumption of electric energy in the
Demised Premises, or an increase in the Building Electricity Costs;
Upon any adjustment of the Demised Premises Electricity Factor and/or
the Building Electricity Factor pursuant to the provisions of Section 12.04,
Landlord shall furnish to Tenant a statement setting forth the Additional Rent
payable hereunder. In no event, however, shall either the Demised Premises
Electricity Factor or the Building Electricity Factor be less, respectively,
than $1.25 and $1.00 per square foot.
12.05. Each adjustment in Additional Rent payable pursuant to this
Article shall be effective retroactively as of:
(a) The effective date of any of the increases set forth in
subsections (a) and (b) of Section 12.04 hereof; and
(b) With respect to any adjustment accomplished pursuant to the
provisions of subsection (c) of Section 12.04 hereof, the date of the completion
of the survey referred to in Section 12.06.
Tenant shall pay to Landlord the first installment of Additional Rent
due as a result of any adjustments pursuant to Section 12.04 within twenty (20)
days after Landlord shall have submitted to Tenant the statement set forth
therein. Thereafter, Tenant's payments of Additional Rent due pursuant to this
Article shall be in accordance with Section 12.03.
12.06. The parties agree that Landlord shall have the right to engage
a reputable, independent electrical consultant selected by Landlord ("Landlord's
Electrical Consultant") to survey the Building to determine whether the Demised
Premises Electricity Factor and/or the Building Electricity Factor set forth in
Section 12.03 are accurate. Landlord's Electrical Consultant shall have the
right, upon reasonable notice to Tenant, to enter the Demised Premises to
conduct the electric survey. Any survey of Building Electricity Costs shall be
predicated on the assumption that, as of the date of the survey, the Building
was 95% occupied. If Landlord's Electrical Consultant determines that an
increase in the Demised Premises Electricity Factor and/or the Building
Electricity Factor is appropriate then Landlord shall furnish Tenant with a
statement setting forth the Additional Rent payable hereunder. Such Additional
Rent shall be payable in accordance with Sections 12.03, 12.04 and 12.05. The
cost of hiring Landlord's Electrical Consultant shall be borne by Landlord;
provided however, if an adjustment of the Demised Premises Electricity Factor is
the result of Tenant's alterations or changes in electrical consumption, Tenant
shall bear the cost thereof to the extent such adjustment is the result of
Tenant's alterations or changes in electrical consumption.
<PAGE>
12.07. The determination of the Landlord's Electrical Consultant
pursuant to Section 12.06 hereof shall be conclusive and binding upon Tenant.
However, with respect to the Demised Premises Electricity Factor, Tenant, not
later than thirty (30) days following the date upon which the statement setting
forth any increase in Additional Rent is delivered to Tenant, shall advise
Landlord in writing if Tenant is of the reasonable opinion that such
determination is erroneous. In such event, Tenant shall, at its own expense,
obtain from a reputable, independent electrical consultant ("Tenant's Electrical
Consultant") its own survey of the Demised Premises Electricity Factor. Tenant's
Electrical Consultant and Landlord's Electrical Consultant shall then seek to
agree on a final determination of such change in the Demised Premises
Electricity Factor. If they cannot agree, they shall choose a third reputable
electrical consultant (the "Independent Electrical Consultant") the cost of
which shall be shared equally by Landlord and Tenant, to make a similar survey.
The determination of the Demised Premises Electricity Factor by the Independent
Electrical Consultant shall be binding on both parties. If the consultants
cannot agree on the Independent Electrical Consultant, the choice of the
Independent Electrical Consultant shall be referred to arbitration pursuant to
the provisions of Article XLVIII of this Lease. Pending resolution of any
dispute with respect to the amount of the Demised Premises Electricity Factor,
Tenant shall pay to the Landlord the amount of Additional Rent based on the
Demised Premises Electricity Factor determined by Landlord's Electrical
Consultant. Thereafter, Landlord and Tenant shall make adjustment for any
deficiency owed by the Tenant or any overage paid by Tenant pursuant to the
original determination of Landlord's Electrical Consultant. In no event shall
the Demised Premises Electricity Factor ever be less than $1.25 per square foot.
12.08. Landlord, upon not less than sixty (60) days, prior written
notice to Tenant, may discontinue the furnishing of electric current to the
Demised Premises if Landlord's discontinuance is required by any laws or
requirements of public authorities or by the utility company supplying electric
current or if Landlord, by reason of any law or requirement of public authority,
is not permitted to recover the costs to it of supplying electric current to
Tenant. In such case, Tenant shall pay for the supplying of such electric
current from said public utility and Landlord shall permit its wires, risers,
conduits, feeders and switchboards, to the extent available, suitable and safely
capable, to be used for the purpose of supplying such electric current. Tenant
at its sole cost and expense shall provide all additional equipment and
installations (including metering equipment) necessary to permit purchase by
Tenant of electric current directly from the public utility supplying the
Building. Notwithstanding the foregoing, Landlord shall not discontinue the
furnishing of electric current to the Demised Premises unless and until the
additional equipment and installations (including metering equipment) necessary
to permit purchase by Tenant of electric current directly from the public
utility supplying the Building have been installed and electric current in a
quantity and of the character then being supplied by Landlord is available to
Tenant from such public utility.
12.09. In the event that Landlord shall discontinue the furnishing of
electric current pursuant to Section 12.08 hereof, Tenant's obligation to pay
Landlord Additional Rent pursuant to this Article shall terminate with respect
to the period from and after the date Landlord discontinued the furnishing of
electric current.
12.10. At Landlord's option, Tenant shall purchase from Landlord at a
reasonable, competitive price and Landlord shall install, at Tenant's expense,
all lamps and ballasts used in the Demised Premises.
12.11. Tenant shall advise Landlord with respect to any material
change in the periods of use of lighting fixtures, business machines and other
electrical equipment within the Demised Premises.
12.12. Landlord shall not be liable to Tenant for any loss or damage
or expense which Tenant may sustain or incur by reason of any failure,
inadequacy or defect in the character, quantity or supply of electric current
furnished to the Demised Premises except for actual damage suffered by Tenant by
reason of any such failure, inadequacy or defect caused by the wrongful act,
wrongful failure to act or the negligence of Landlord, Landlord's agent's,
employees or representatives.
<PAGE>
ARTICLE XIII
Access to Demised Premises
13.01. Landlord or Landlord's agents shall have the right to enter the
Demised Premises in any emergency at any time, and, at other reasonable times on
at least forty eight (48) hours prior written notice to Tenant, to examine the
same and to make such repairs, replacements and improvements as Landlord may
deem necessary and desirable to the Demised Premises or to any other portion of
the Building or which Landlord may elect to perform following Tenant's failure
to make repairs or perform any work which Tenant is obligated to perform under
this Lease, or for the purpose of complying with laws, regulations and other
directions of governmental authorities. Tenant shall not be entitled to any
abatement of rent while such work is in progress nor to any damages by reason of
loss or interruption of business or otherwise. Throughout the term hereof
Landlord shall have the right to enter the Demised Premises at reasonable hours
on at least forty eight (48) hours prior written notice to Tenant for the
purpose of showing the same to prospective purchasers or mortgagees of the
Building or the Property and during the last six (6) months of the term for the
purpose of showing the same to prospective tenants. If Tenant is not present to
open and permit an entry into the Demised Premises, Landlord or Landlord's
agents may enter the same whenever such entry may be necessary by reason of
emergency by master key or forcibly and provided reasonable care is exercised to
safeguard Tenant's property and such entry shall not render Landlord or its
agents liable therefor, nor in any event shall the obligations of Tenant
hereunder be affected.
<PAGE>
ARTICLE XIV
Intentionally Omitted
ARTICLE XV
Intentionally Omitted
ARTICLE XVI
Base Rent and Additional Rent
16.01. As set forth on the first page of this Lease, during the term
hereof the rent reserved under this Lease shall be and consist of:
(i) an annual fixed rent (the "Base Rent") in the following
amounts for the following Lease Years:
Lease Year $ Amount Base Rent $ Monthly Base Rent
1 271,824.00 22,652.00
2 282,696.96 23,558.08
3 288,463.98 24,038.67
4 333,267.18 27,772.27
5 340,865.67 28,405.47
6 347,853.42 28,987.79
7 393,816.42 32,818.04
8 402,559.14 33,546.60
9 410,690.83 34,224.24
10 419,068.93 34,922.41
(ii) such other sums of money as shall become due and payable by
Tenant hereunder (hereinafter, "Additional Rent") including, without limitation,
those items specified in Articles XI, XII, XVII, XIX and XXIV of this Lease, all
of which sums shall be payable as hereinafter provided, all to be paid to
Landlord, as specified on the first page of this Lease, subject, however, to
increase, decrease or abatement as expressly provided in this Lease. In the
event any installment of Base Rent or Additional Rent required pursuant to the
provisions of this Lease to be paid by Tenant is not paid when due, such
installment shall bear interest at the rate of sixteen (16%) percent per annum
from the date said installment was due and payable, said interest to be deemed
Additional Rent. In addition, Tenant shall pay upon demand by Landlord
reasonable attorney's fees incurred by Landlord in connection with the
collection or payment of said interest, said attorney's fees to be deemed
Additional Rent.
(iii) so long as Tenant shall have duly kept and performed all of the
terms, covenants, conditions, provisions and agreements to be kept and performed
by Tenant under this Lease, Landlord shall grant to Tenant a credit of
$33,978.00 to be applied to the Base Rent which would otherwise accrue for the
first one and one-half (1 1/2) months occurring after the Commencement Date of
the term hereof. If the Commencement Date shall not be the first day of any
month, the rent credit shall be prorated in the manner set forth.
ARTICLE XVII
Intentionally Omitted
<PAGE>
ARTICLE XVIII
Intentionally Omitted
ARTICLE XIX
Real Estate Tax Escalation
19.01. Tenant shall pay to Landlord as Additional Rent real estate tax
escalations pursuant to the further provisions of this Article XIX.
19.02. For the purposes of this Article, the term "Taxes" shall
include the sum of all real estate taxes and assessments, special assessments,
water and sewer rents, excises, levies, and any other charges by any public
authority, which are general or special, ordinary or extraordinary, foreseen or
unforeseen, or of any kind and nature whatsoever, and which shall or may, during
or in respect to the Term of this Lease, be assessed, levied, charged,
confirmed, or imposed upon, or become due and payable out of, or become a lien
on the Demised Premises, Land, Building, Property or appurtenances or facilities
used in connection therewith. If at any time during the Term of this Lease the
methods of taxation prevailing at the execution of this Lease shall be altered
so that in lieu of or as a substitute for the whole or any part of the taxes,
assessments, levies, impositions or charges now levied, assessed or imposed on
real estate or the improvements thereon there shall be levied, assessed or
imposed (i) a tax, assessment, levy, imposition or charge wholly or partially
payable as a capital levy or otherwise on the rents received therefrom, or (ii)
a tax, assessment, levy, imposition or charge measured by or based in whole or
in part upon the Demised Premises and imposed upon Landlord, or (iii) a license
fee or charge measured by the rents payable by Tenant to Landlord, or (iv) a
license fee or charge measured by the rent receivable by Landlord for the
Building or the Property or any portion thereof and/or the Land or any other
building or other improvements constructed on the Land, or (v) a tax, license
fee or charge imposed on Landlord which is otherwise measured by or based in
whole or in part, upon the Property, the Building or any portion thereof and/or
the Land or any other building or other improvements constructed on the Land, or
(vi) any other tax or levy imposed in lieu of or as a substitute for Taxes which
are levied, assessed or imposed as of the date of this Lease, then in any such
event, the same shall be included in the computation of Taxes hereunder. A tax
bill or copy thereof shall be conclusive evidence of the amount of Taxes or
installments thereof.
19.03. In the event that subsequent to the Commencement Date the Taxes
levied upon the Land and the Building increase above the Base Tax Amount, Tenant
agrees to pay as Additional Rent Tenant's Pro Rata Share of any and all such
increases in Taxes. The term "Base Tax Amount" shall mean the amount equal to
the assessed value of the Building during the first Tax Year in which the
rentable area of the Building is at least eighty (80%) percent leased pursuant
to leases in which the tenant's space is substantially ready for the tenant's
occupancy (including rentable area previously leased pursuant to leases executed
after the date hereof which may hereafter expire or otherwise be terminated)
(the "Full Assessment Tax Year") multiplied by the tax rate in effect for the
1997/1998 Tax Year. The term "Tax Year" shall mean the fiscal year for Suffolk
County Town and School Taxes covering the period beginning December 1 and ending
on November 30. In addition, if subsequent to the 1998/1999 Tax Year but prior
to the Full Assessment Tax Year there are increases in Taxes due to increases in
the tax rate, then Tenant agrees to pay as Additional Rent, Tenant's Pro Rata
share of any increase in Taxes to the extent such increase was due to an
increase in the applicable tax rate.
19.04. For each Lease Year during the Term of this Lease the method of
computing any Additional Rent resulting from changes in Taxes shall be as set
forth in Section 19.03 hereof.
19.05. If, during any lease year subsequent to the Base Tax Year, the
Taxes, whether by virtue of an increase in the assessment of the Land and/or
Building is increased over and above the Base Tax Amount, Tenant shall pay to
Landlord within twenty (20) days after written demand by Landlord therefor,
together with a copy of the appropriate tax bills, as Additional Rent, an amount
equal to one-twelfth (1/12) of Tenant's Pro Rata Share of the amount of such
increase for each month as shall have elapsed between the effective date of such
increase and the date of payment thereof by Tenant. Thereafter, and for the
balance of the term of this Lease, Tenant shall pay to Landlord as Additional
Rent with each monthly installment of Base Rent an amount equal to one-twelfth
(1/12) of Tenant's Pro Rata Share of such increase until further readjusted
pursuant to the terms of this Lease. Tax bills submitted by Landlord to Tenant
shall be conclusive evidence of the amount Taxes so assessed.
19.06. Only Landlord shall be eligible to institute proceedings to
reduce the assessed valuation of the Land, the Building or the Property. In the
event the Landlord shall obtain a tax refund as a result of any such reduction
proceedings, then, provided Tenant is not then in default under the terms of
this Lease and after all applicable grace periods have expired and after the
final conclusion of all appeals or other remedies, Tenant shall be entitled to
Tenant' s Pro Rata Share of the net refund obtained. As used herein, the term
"net refund" means the refund plus interest, if any, thereon, paid by the
governmental authority less appraisal, engineering, expert testimony, attorney,
printing and filing fees and all other Landlord costs and expenses of the
proceeding. Tenant shall pay to Landlord Tenant's Pro Rata Share of all
appraisal, engineering, expert testimony, attorney, printing and filing fees and
all other reasonable costs and expenses of the proceeding incurred by Landlord
in the event said proceeding does not result in any net refund. Further, in the
event the Landlord is successful in any such reduction proceeding, and the Base
Tax Amount is reduced, for the purposes of this Lease such reduced Base Tax
Amount shall be used in computing Tenant's Pro Rata Share of increases in Taxes
and may be applied retroactively by Landlord, and any portion of the Taxes
payable by Tenant as a result of such retroactive calculation shall be paid by
Tenant to Landlord within twenty (20) days of a bill being presented by Landlord
to Tenant therefor.
19.07. Landlord's failure during the Term of this Lease to submit tax
bills or copies thereof to Tenant, or Landlord's failure to make demand under
this Article or under any other provision of this Lease shall not in any way be
deemed a waiver of, or cause Landlord to forfeit or surrender its rights to
collect any items of Additional Rent which may have become due pursuant to this
Article during the term of this Lease. Tenant's liability for the Additional
Rent due under this Article shall survive the expiration or sooner termination
of this Lease.
19.08. In no event shall any adjustment of Tenant's Pro Rata Share of
the Taxes payable hereunder result in a decrease in Base Rent or Additional Rent
payable pursuant to any other provision of this Lease, it being agreed that the
payment of Additional Rent under this Article is an obligation supplemental and
in addition to Tenant's obligation to pay Base Rent.
<PAGE>
ARTICLE XX
(Intentionally Omitted)
ARTICLE XXI
Bankruptcy
21.01. If at any time prior to the Commencement Date there shall be
filed by or against Tenant in any court pursuant to any statute either of the
United States or of any State a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of Tenant's property, which petition is not dismissed or withdrawn
within sixty (60) days of the filing thereof, or if Tenant makes an assignment
for the benefit of creditors, or petitions for or enters into an arrangement
with creditors, this Lease shall ipso facto be cancelled and terminated and in
which event neither Tenant nor any person claiming through or under Tenant or by
virtue of any other provisions herein or elsewhere in this Lease contained or by
virtue of any statute or rule or law, may retain as liquidated damages any rent
or any deposit or monies received by it from Tenant or others on behalf of
Tenant.
21.02. If at the Commencement Date or if at any time during the Term
of this Lease there shall be filed by or against Tenant in any court pursuant to
any statute either of the United States or of any State a petition in bankruptcy
or insolvency or for reorganization or for the appointment of a receiver or
trustee of all or a portion of Tenant's property, which petition is not
dismissed or withdrawn within sixty (60) days of the filing thereof, or if
Tenant makes an assignment for the benefit of creditors or petitions for or
enters into an arrangement with creditors, this Lease, at the option of Landlord
exercised within a reasonable time after notice of the happening of any one or
more of such events, may be cancelled and terminated by written notice by
Landlord to Tenant and in which event neither Tenant nor any person claiming
through or under Tenant by virtue of any statute or of any order of any court
shall be entitled to possession or to remain in possession of the Demised
Premises but shall forthwith quit and surrender the Demised Premises and
Landlord, in addition to the other rights and remedies it has by virtue of any
other provisions herein or elsewhere in this Lease contained or by virtue of any
statute or rule of law, may retain as liquidated damages any rent, security,
deposit or monies received by Landlord from Tenant or others on behalf of
Tenant.
21.03. At any of the times mentioned in either Sections 21.01 or 21.02
hereof, if an involuntary insolvency, bankruptcy or reorganization proceeding
shall be instituted against Tenant as provided in said Sections, Tenant shall
have sixty (60) days in which to vacate, dismiss or withdraw the same before
Landlord shall have any right to terminate this Lease.
21.04. It is stipulated and agreed that in the event of the
termination of this Lease pursuant to Sections 21.01 or 21.02 thereof, Landlord
shall forthwith, notwithstanding any other provisions of this Lease to the
contrary, be entitled to recover from Tenant as and for liquidated damages an
amount equal to the difference between the rent reserved hereunder for the
unexpired portion of the Term of this Lease and the fair market rental value of
the Demised Premises, if lower than the rent reserved, at the time of
termination, for the unexpired portion of the Term of this Lease, both
discounted at the rate of four (4%) percent per annum to present worth thereof.
Nothing contained herein shall limit or prejudice the right of Landlord to prove
for and obtain as liquidated damages by reason of such termination an amount
equal to the maximum allowed by any statute or rule of law in effect at the time
when, and governing the proceedings in which, such damages are to be proved,
whether or not such amount be greater, equal to, or less than the amount of the
difference referred to above. In determining the fair market rental value of the
Demised Premises, the rent realized by any arms-length re-letting, if such
re-letting be accomplished by Landlord within a reasonable time after
termination of this Lease, shall be deemed prima facie to be the fair market
rental value. Any disputes with respect to the fair market rental value shall be
resolved pursuant to the arbitration provisions of this Lease.
<PAGE>
ARTICL E XXII
Damage by Fire or Other Cause
22.01. Tenant shall give prompt notice to Landlord in case of
fire or other damage to the Demised Premises or the Building.
22.02. Subject to the further provisions of this Article XXII, if the
Demised Premises or the Building shall be damaged by fire or other casualty,
Landlord, at Landlord's expense, shall repair such damage. However, Landlord
shall have no obligation to repair any damage to, or to replace, Tenant's
personal property or any other property or effects of Tenant. If the Demised
Premises shall be rendered untenantable by reason of any such damage, the Base
Rent and Additional Rent only shall abate for the period from the date of such
damage to the date when such damage shall have been repaired, and if only a part
of the Demised Premises shall be so rendered untenantable, the Base Rent and
Additional Rent shall abate for such period in the proportion which the Rentable
Area of the Demised Premises so rendered untenantable bears to the total
Rentable Area of the Demised Premises. However, if, prior to the date when all
of such damage shall have been repaired, any part of the Demised Premises so
damaged shall be rendered tenantable and shall be used or occupied by Tenant or
other persons claiming through or under Tenant, then the amount by which the
Base Rent and Additional Rent shall abate shall be equitably apportioned for the
period from the date of any such use or occupancy to the date when all such
damage shall have been repaired. Tenant hereby expressly waives the provisions
of Section 227 of the New York Real Property Law, and of any successor law of
like import then in force, and Tenant agrees that the provisions of this Article
shall govern and control in lieu thereof.
22.03. Notwithstanding the foregoing provisions of this Article, if
prior to or during the term of this Lease, (i) the Demised Premises shall be
totally damaged or rendered wholly untenantable by fire or other casualty, and
if Landlord shall decide not to restore the Premises, or (ii) the Building shall
be so damaged by fire or other casualty that, in the Landlord's opinion,
substantial alteration, demolition, or reconstruction of the Building shall be
required (whether or not the Demised Premises shall have been damaged or
rendered untenantable), or (iii) damage amounting to at least thirty (30%)
percent of the Rentable Area of the Demised Premises occurs during the last two
(2) years of the Lease (as the same may be extended pursuant to Article XV
herein) term, then, in any of such events, Landlord at Landlord's option, may
give to Tenant, within sixty (60) days after such fire or other casualty, a
thirty (30) days' notice of termination of this Lease and, in the event such
notice is given, this Lease and the Term shall come to an end and expire
(whether or not said Term shall have commenced) upon the expiration of said
thirty (30) days with the same effect as if the date of expiration of said
thirty (30) days were the Expiration Date, and the Base Rent and Additional Rent
shall be apportioned as of such date and any prepaid portion for any period
after such date shall be refunded by Landlord to Tenant.
22.04. If this Lease shall not be terminated as provided in Paragraph
22.03 hereof, Landlord shall, at its expense, (provided of the net insurance
recovery fully covers the completion of any such restoration or repair and such
proceeds are released to Landlord for such restoration and repair purposes),
repair or restore the Demised Premises with reasonable diligence and dispatch
and as otherwise provided in Section 22.02 hereof, to the condition existing
immediately prior to the casualty except that Landlord shall not be required to
repair or restore any of Tenant's leasehold improvements or betterments,
furniture, furnishings, decorations or any other installations made at Tenant's
expense. All insurance proceeds payable to Tenant for such items shall be held
in trust by Tenant and upon the completion by Landlord of the repair or
restoration, Tenant shall prepare the Demised Premises for occupancy by Tenant
in the manner existing immediately prior to the damage or destruction in
accordance with plans and specifications approved by Landlord.
22.05 Notwithstanding anything to the contrary contained herein, if
the Demised Premises are so damaged that by any reasonable estimate the
completion of the restoration of the Demised Premises will exceed one year or,
in fact, does exceed one (1) year to complete, both Landlord and Tenant shall
have the right to terminate this Lease by giving the other party notice of such
termination within sixty (60) days after the fire or casualty or one (1) year
period, as the case may be, and upon the expiration of thirty (30) days after
the giving of such notice, this Lease shall expire as if the date of expiration
was the Expiration Date.
<PAGE>
ARTICLE XXIII
Insurance
23.01. Tenant shall maintain with responsible companies which are A
rated or better in Best's Insurance Guide and approved by Landlord (i)
Comprehensive General Liability Insurance, against all claims, demands or
actions for personal injury to or death of any one person in an amount of not
less than $3,000,000 and for injury to or death of more than one person in any
one accident or occurrence to the limit of not less than $5,000,000 and for
damage to property in an amount of not less than $500,000 made by or on behalf
of any person, arising from, related to, or in any way connected with the
conduct and operation of Tenant's use of or occupancy of the Demised Premises,
or caused by actions or omissions to act, where there is a duty to act, of
Tenant, its agents, servants and contractors, which insurance shall name
Landlord as an additional insured; (ii) property insurance against hazards
covered by an all risk coverage insurance policy (including fire, extended
coverage, vandalism, malicious mischief and sprinkler leakage) as Landlord may
reasonably, from time to time, require, covering all fixtures and equipment,
stock in trade, furniture, furnishings, improvements or betterments installed or
made by Tenant in, on or about the Demised Premises to the extent of at least
100% of their replacement value, without deduction for depreciation, but in any
event in an amount sufficient to prevent Tenant from becoming a co-insurer under
provisions of applicable policies; and (iii) workers' compensation insurance
covering all persons employed by Tenant or in connection with any work performed
by Tenant. Said Comprehensive General Liability Insurance shall also contain
provisions for contractual liability insurance under the comprehensive general
liability section of the insurance certificate in an amount not less than
$3,000,000. All of Tenant's insurance shall be in form satisfactory to Landlord
and shall provide that it shall not be subject to cancellation, termination or
change except after at least thirty (30) days' prior written notice to Landlord.
All policies required pursuant to this Paragraph 23.01 or duly executed
certificates for the same shall be deposited with Landlord not less than 10 days
prior to the day Tenant is expected to take occupancy and upon renewals of said
policies not less than 15 days prior to the expiration of the term of such
coverage. All such policies or certificates shall be delivered with satisfactory
evidence of the payment of the premium therefor. Landlord and Tenant mutually
agree that with respect to any loss which is covered by insurance then being
carried by them respectively, or required to be carried, or as to any coverage
which Landlord agrees need not be carried, the party suffering a loss, releases
the other of and from any and all claim with respect to such loss; and they
further mutually agree that their respective insurance companies shall have no
right of subrogation against the other on account thereof. In the event that an
extra premium is payable by either party as a result of this provision, the
other party shall reimburse the party paying such premium the amount of such
extra premium. If, at the written request of one party, this release and
nonsubrogation provision is waived, then the obligation of reimbursement shall
cease for such period of time as such waiver shall be effective, but nothing
contained in this paragraph shall be deemed to modify or otherwise affect
releases elsewhere herein contained, of either party from liability from claims.
23.02. Tenant shall pay on demand any increase in premiums that may be
charged on insurance carried by Landlord resulting from Tenant's use or
occupancy of the Demised Premises, whether or not Landlord has consented to the
same. In determining whether increased premiums are the result of Tenant's use
or occupancy or vacancy of the Demised Premises, a schedule or "makeup" rate of
the organization issuing the fire insurance, extended coverage, vandalism, and
malicious mischief, special extended coverage or any or all risk insurance rates
for the Demised Premises or any rule books issued by the rating organization or
similar bodies or by rating procedures or rules of Landlord's insurance
companies shall be conclusive evidence of the several items and charges which
make up the insurance rates and premiums on the Demised Premises and the
Building. If, due to the (i) occupancy, or (ii) abandonment, or (iii) Tenant's
failure to occupy the Demised Premises as herein provided, any such insurance
shall be cancelled by the insurance carrier, then, in any of such events Tenant
shall indemnify and hold Landlord harmless against any loss which would have
been covered by such insurance.
Tenant also shall pay any increase in premiums on such rent insurance
as may be carried by Landlord for its protection against rent loss through fire
or other casualty, if such increase shall result from any of the foregoing
events.
ARTICLE XXIV
Services and Equipment
24.01. Landlord, at its cost and expense, shall provide to Tenant
twenty four (24) hours a day, such passenger elevator service as shall be
reasonably necessary for the accomplishment of the Permitted Use. Tenant shall
also be permitted to use the elevators for freight purposes, but only during
those hours which are not Normal Business Hours; provided however, deliveries or
removal of normal business supplies which will not disrupt the use of the
elevators by other tenants in the Building may be made during Normal Business
Hours. Tenant shall pay, as Additional Rent hereunder, the costs and expenses
incurred by Landlord in providing additional elevator service to Tenant for
freight.
24.02. Landlord, at its cost and expense, shall maintain, operate and
keep in good working order and repair the air-conditioning, heating and
ventilating systems installed by Landlord. Subject to any applicable policies or
regulations adopted by any utility or governmental authority, the aforesaid
systems shall be operated by Landlord during Normal Business Hours on Normal
Business Days (as said terms are hereinafter defined) when seasonably required
as determined by Landlord. In the event Tenant shall require air-conditioning,
heating and ventilation services for any part of the Demised Premises beyond
Normal Business Hours or beyond Normal Business Days, Landlord shall furnish
such services upon not less than twelve (12) hours prior written notice from
Tenant received by Landlord during normal business hours. Tenant shall pay upon
demand by Landlord the actual costs incurred by Landlord in furnishing such
services, which as of the date hereof is $25/hour subject to increases to be
charged by Landlord which are proportionate to increases charged to Landlord by
the utility company furnishing electricity to the Building.
24.03. Tenant covenants that it will at all times comply with all
regulations and requirements which Landlord may reasonably prescribe for the
proper functioning and protection of said air-conditioning system. Any use or
occupancy of the Demised Premises during the hours or days Landlord is not so
required pursuant to this Article to furnish heat, ventilation or
air-conditioning to the Demised Premises shall be at the sole risk,
responsibility and hazard of Tenant. If Tenant's use of the Demised Premises, or
any part thereof, exceeds the design condition limitations of the heating,
ventilating and air-conditioning systems (including occupancy of one person per
200 rentable square feet and total electrical load from Tenant's light and power
of 3 watts per useable square foot), or if Tenant rearranges partitions in such
a manner as to interfere with the normal operations of these systems, Landlord
at its option and at Tenant's expense, may make the changes to said systems made
necessary by said use or said rearrangement.
24.04. Landlord, at its cost and expense but subject to reimbursement
as provided in this Section 24.04 and in Section 24.12 hereof, shall furnish
janitorial and cleaning services in the Demised Premises in accordance with the
"Cleaning and Janitorial Service" requirements attached as Exhibit C hereto.
Notwithstanding the foregoing, however, any portion of the Demised Premises used
for (if specifically permitted herein) (i) preparation, dispensing or consuming
food or beverages; (ii) data processing or computer operations; (iii) medical
areas, or (iv) storage areas will be serviced pursuant to Exhibit C, but at such
additional charge to Tenant as shall be agreed upon by Landlord and Tenant. In
those areas as noted above in subsections (i) through (iv), Landlord shall
remove waste paper accumulated daily (during Normal Business Hours) in the
routine of business office occupancy. Tenant shall pay Landlord a reasonable
charge for any extra cleaning work in the Demised Premises required because of
(i) misuse or neglect on the part of Tenant or its employees or visitors; (ii)
private lavatories or toilets or other special facilities requiring greater or
more difficult cleaning work than normal office areas; (iii) the cleaning of
unusual quantities of interior glass surfaces or other non-building standard
materials or finishes installed by Tenant; or (iv) the removal of so much of any
refuse and rubbish of Tenant as shall exceed that ordinarily accumulated daily
in the routine of business office occupancy. Landlord, its cleaning contractor
and their employees shall have access to the Demised Premises subject to
Tenant's reasonable security requirements after normal business hours and such
use of light, power and water in the Demised Premises as is reasonably required
for cleaning the Demised Premises in accordance with said Exhibit C.
24.05. Landlord shall furnish, at its cost and expense, cold water for
ordinary drinking and office cleaning purposes only, and hot water to the
lavatory only. If Tenant requires, uses or consumes water for any other purpose
or in unusual quantities Landlord may install a water meter at Landlord's
expense which Tenant shall thereafter maintain at Tenant's expense in good
working order and repair to measure Tenant's water consumption and Tenant shall
pay for all water consumed as shown on said meter as Additional Rent within
fifteen (15) days after the bills are rendered and in default in making such
payment, Landlord may pay such charges and collect same from Tenant. Such a
meter shall also be installed and maintained at Landlord's sole expense if
required by applicable law or governmental regulation or order.
24.06. Landlord, at its sole cost and expense shall provide security
for the Building and Property at levels and in a manner consistent with other
first class office buildings located in Suffolk County, New York.
24.07. No sign or signs, except in uniform style and uniform location
as fixed by Landlord in its signage specification will be permitted in the
public corridors or on corridor doors or entrances to the Demised Premises
except as may be permitted pursuant to Article XLVI herein. No sign shall be
affixed or installed by Tenant without the prior written consent of Landlord.
24.08. For the purpose of this Article, "Normal Business Hours" for
the Demised Premises shall be from 8:00 A.M. to 6:00 P.M. on weekdays and from
9:00 A.M. to 1:00 P.M. on Saturdays. Normal Business Hours shall be observed
on "Normal Business Days", which shall be all days except Sundays and those
holidays listed on Exhibit D annexed hereto. The Building shall be open to
the general public during the hours of 7:00 A.M. to 7:00 P.M. on those Normal
Business Days which are weekdays. During the hours of 7:00 P.M. to 11 P.M. on
those Normal Business Days which are weekdays, and during the hours of 7:00 A.M.
to 11:00 P.M. on all other days, Landlord reserves the right to exclude from the
Building all persons who do not present a pass to the Building signed by the
Landlord or who do not have an "access card" which allows access into the
Building electronically. Access cards will be distributed to the Tenant for its
distribution to its employees ONLY. In the event an access card is lost or
misplaced, Tenant will be responsible to immediately notify Landlord of such
misplaced or lost access card. Tenant shall be required to pay $25.00 for any
new or replacement access card to be issued by Landlord. As to any employee of
Tenant which has been issued an access card and leaves the employ of Tenant,
Tenant shall be responsible to immediately notify Landlord of such unemployment.
During the hours of 11:00 P.M. to 7:00 A.M. on all days, Tenant and its
employees will not be permitted access to the Building by use of access cards
but instead may gain access to the Building by giving the Landlord at least
twelve (12) hours prior notice and making arrangements with Landlord for access
into the Building. Tenant shall be responsible for all persons for whom it
requests access to the Building and/or access cards and shall be liable to the
Landlord for all acts of such persons. Landlord shall in no case be liable for
damages for any error with regard to the admission to or exclusion from the
Building of any person. In case of a riot, public excitement or other
circumstances rendering such action advisable in Landlord's opinion, Landlord
reserves the right to prevent access to the Building during the continuance of
the same by closing the doors or otherwise, all for the safety of the tenants
and the protection of the Building.
24.09. Landlord reserves the right to interrupt, curtail or suspend
services of the water, heating, air-conditioning, ventilating, elevator,
plumbing and electric systems, when necessary for repairs or alterations which,
in the sole judgment of Landlord are desirable or necessary to be made, or when
required by any governmental law, order or regulation, or for any other cause
beyond the reasonable control of Landlord. Until such time as said repairs or
alterations shall have been completed, Landlord shall have no responsibility or
liability for failure to supply heat, water, air-conditioning, elevator,
plumbing, electric, cleaning and janitor services during said period, or when
prevented from so doing by strikes, accidents, or by any cause beyond Landlord's
control or by governmental laws, orders, or regulations or failure of a suitable
fuel supply, or inability by exercise or reasonable diligence to obtain suitable
fuel. Landlord will use reasonable efforts to remove or eliminate the cause of
any such failure as promptly as possible, and will perform said work in such
manner as to cause reasonably minimal interference with Tenant's use and
enjoyment of the Demised Premises. No diminution or abatement of Base Rent,
Additional Rent or other compensation shall or will be claimed by Tenant as a
result therefrom, nor shall this cause any of Tenant's obligations hereunder to
be affected or reduced by reason of such interruption, curtailment or
suspension; provided however, Tenant shall be permitted to bring a separate
action or legal proceeding claiming damages for diminution of rental value, but
in no event shall the Base Rent or Additional Rent abate or be offset against
hereunder; and further provided, if as a result of such interruption,
curtailment or suspension of services, Tenant is unable to conduct its business
operations at the Demised Premises for a period of ten (10) consecutive Normal
Business Days or more, Tenant shall be entitled to an abatement of Base Rent and
Additional Rent for each day during such period that Tenant was unable to
conduct its business operations.
24.10. It is expressly agreed that only Landlord or any one or more
persons, firms or corporations authorized in writing by Landlord will be
permitted to furnish laundry, linen, towels, drinking water, ice and other
similar supplies and services to tenants and licensees in the Building. Landlord
may fix, in its own absolute discretion, at any time and from time to time, the
hours during which and the regulations under which such supplies and services
are to be furnished. Landlord expressly reserves the right to act as or to
designate, at any time and from time to time, an exclusive supplier of all or
any one or more of the said supplies and services, provided that the quality
thereof and the charges therefor are reasonably comparable to that of other
suppliers; and Landlord furthermore expressly reserves the right to exclude from
the Building any person, firm or corporation attempting to furnish any of said
supplies or services but not so designated by Landlord.
24.11. Tenant, at its sole cost and expense, shall cause the Demised
Premises to be exterminated as necessary to the satisfaction of Landlord using
exterminators approved by Landlord.
24.12. Landlord shall render bills concerning all services provided to
Tenant by Landlord which costs are the responsibility of Tenant to pay pursuant
to the terms of this Article, with all such sums so billed due and payable by
Tenant as Additional Rent within thirty (30) days after the date said bill shall
have been rendered to Tenant. Any dispute concerning said payment shall be
referred to arbitration pursuant to the provisions of Article XLVIII of this
Lease. The costs of such services shall include Landlord's actual costs for
fuel, electricity and reasonable associated personnel salaries and benefits.
24.13. Tenant shall have no right to maintain any facilities in the
Demised Premises for cooking or the preparation of food in any form without the
prior written consent of Landlord; provided however, Tenant shall have the right
to maintain a microwave oven and a machine for the making of hot beverages
provided the electric consumption thereof does not exceed the capacity of the
electric service to the Demised Premises.
ARTICLE XXV
Rules and Regulations
25.01. Tenant shall observe strictly with the rules and regulations
set forth in Exhibit E annexed hereto and such other and further reasonable
rules and regulations as Landlord or Landlord's agents may from time to time
adopt (such rules and regulations as have been or may hereafter be adopted or
amended are hereinafter the "Rules and Regulations").
ARTICLE XXVI
Liability of Landlord
26.01. Landlord or its employees and agents shall not be liable for
any damages or injury to property of Tenant or of any other person, including
property entrusted to employees of Landlord, nor loss of or damage to any
property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause whatsoever, arising from the acts
or neglect of any Tenant, occupant, invitee or licensee of the Building, or from
any other cause whatsoever, unless caused by the negligence or unlawful act or
omission of Landlord, its agents, employees or representatives, nor shall
Landlord or its agents or employees be liable for any such damage caused by
other tenants or persons (other than Landlord's agents, employees or
representatives) in, upon or about the Building, or caused by operations in
construction of any private, public or quasi-public work.
ARTICLE XXVII
Indemnification of Landlord
27.01. Tenant shall indemnify and save harmless Landlord and its
employees and agents against and from (i) any and all claims against Landlord of
whatever nature arising from any act, omission or negligence of Tenant, its
contractors, licensees, subtenants, agents, servants, employees, invitees or
visitors, (ii) all claims against Landlord arising from any accident, injury or
damage whatsoever caused to any person or to the property of any person and
occurring during the term of this Lease in or about the Demised Premises unless
such claim is attributable to the negligence or unlawful act or omission of
Landlord, (iii) all claims against Landlord arising from any accident, injury or
damage occurring outside of the Demised Premises but anywhere within or about
the Building or the Property, where such accident, injury or damage results or
is claimed to have resulted from an act or omission of Tenant or Tenant's
agents,, employees, subtenants, invitees or visitors, and (iv) any breach,
violation or non-performance of any covenant, condition or agreement in this
Lease set forth and contained on the part of Tenant to be fulfilled, kept,
observed and performed. This indemnity and hold harmless agreement shall include
indemnity from and against any and all liability, fines, suits, demands, costs
and expenses of any kind or nature incurred in or in connection with any such
claim or proceeding brought thereon, and the defense thereof.
ARTICLE XXVIII
Parking and Common Area Use
28.01. Subject to the Parking Area Rules and Regulations annexed
hereto as part of Exhibit E, Tenant and its employees shall be permitted to park
in the parking lot serving the Building and Tenant understands that parking
spaces shall not be reserved but on a first in basis. The Landlord shall reserve
four (4) parking spaces as shown on Exhibit F attached hereto for use by Tenant
or its employees at no charge to Tenant or its employees. Tenant and Tenant's
servants, employees, agents, visitors, and licensees shall park their passenger
vehicles, trucks or delivery vehicles only in areas designated by the Landlord
as areas for such parking.
28.02. Tenant shall, upon twenty (20) days' written notice from
Landlord, furnish Landlord or its authorized agent the state automobile license
numbers assigned to its automobiles and the automobiles of all of its employees.
28.03. Landlord shall have the right to create validation systems,
barriers or gates, permits, stickers and other systems in connection with the
operation of the parking areas.
<PAGE>
ARTICLE XXIX
[Intentionally Omitted]
ARTICLE XXX
Right to Perform
30.01. If Tenant shall default in the observance or performance of any
obligation of Tenant under this Lease, then, unless otherwise provided elsewhere
hereunder, Landlord may immediately or at any time thereafter without notice
perform such obligation of Tenant without thereby waiving such default. If
Landlord, in connection therewith incurs any costs including, but not limited
to, attorneys' fees in instituting, prosecuting or defending any action or
proceeding, such costs with interest at the rate of sixteen (16%) percent per
annum, shall be deemed to be Additional Rent hereunder and shall be paid by
Tenant to Landlord within five (5) days of rendition of any bill or statement to
Tenant therefor. If, however, payment of interest at any such rate by Tenant (or
by the tenant then in possession having succeeded to Tenant's interest in
accordance with the terms of this Lease) should be unlawful, then such interest,
as against such party, shall be computed at the lawful rate payable by such
party.
ARTICLE XXXI
Defaults
31.01. Tenant shall be deemed in default of the obligations to be
performed by it pursuant to the provisions of this Lease if Tenant shall fail to
make payment of the Base Rent, or of any item of Additional Rent, or of any
other payment reserved herein within the time provided in this Lease for payment
of same to be made, or if Tenant shall fail to fulfill any of the covenants of
this Lease other than the covenants for the payments reserved herein, and said
failure shall continue for a period of ten (10) days after giving written notice
thereof from Landlord specifying such failure (or, in the case of a default or
omission the nature of which cannot be completely cured or remedied within ten
(10) days, Tenant shall not have diligently commenced curing such default within
said ten (10) day period and not thereafter with reasonable dispatch and
diligence and in good faith proceeded to remedy or cure such default, all in
Landlord's sole judgment) or if Tenant shall fail to take possession within
fifteen (15) days after the Commencement Date or if the Demised Premises shall
become vacant or deserted or if the Demised Premises are damaged by reason of
negligence or carelessness of Tenant which damage is not repaired by Tenant
within thirty (30) days of occurrence. In the event of such a default by Tenant,
Landlord may give five (5) days' notice of its intention to end the Term of this
Lease and thereupon at the expiration of said five (5) days, the Term of this
Lease shall expire. Tenant shall then quit and surrender the Demised Premises,
but shall remain liable as hereinafter provided.
31.02. If the notice last provided for in Section 31.01 hereof shall
have been given and the Term of this Lease shall expire as aforesaid, then and
in such event Landlord may without additional notice re-enter the Demised
Premises, either by force or otherwise, and dispossess Tenant and the legal
representative of Tenant or other occupant of the Demised Premises by summary
proceedings or otherwise remove their effects and hold the Demised Premises as
if this Lease had not been made, and Tenant and its legal representative or
other occupant of the Demised Premises hereby waive the service of notice of
intention to re-enter or to institute legal proceedings to that end. If Tenant
shall default hereunder prior to the date fixed as the commencement of any
renewal or extension of this Lease, then Landlord may cancel and terminate such
renewal or extension.
31.03. In case of any such default, re-entry, expiration and/or
dispossess by summary proceedings or otherwise, as aforesaid, (i) the Base Rent
and Additional Rent due at the time of said default shall become due thereupon
and be paid up to the time of such re-entry, dispossess and/or expiration,
together with such reasonable expenses as Landlord may incur for legal expenses,
attorneys' fees, brokerage fees and/or putting the Demised Premises in good
order or for preparing the same for re-rental; (ii) Landlord may re-let the
Demised Premises or any part or parts thereof, either in its own name or
otherwise, for a term or terms which may, at its option, be shorter or longer
than the period which would otherwise have constituted the remainder of the Term
of this Lease and may grant concessions or free rent to such extent as Landlord
in Landlord's sole judgment considers advisable and necessary to re-let the
same; (iii) Tenant or its successors shall also pay the Landlord as liquidated
damages for the failure of Tenant to observe and perform its covenants contained
herein any deficiency between the Base Rent and Additional Rent hereby reserved
and the net amount, if any, of the rents collected on account of the lease or
leases of the Demised Premises or parts thereof for each month of the period
which would otherwise have constituted the remainder of the Term of this Lease;
and (iv) that Tenant or its successors shall also pay to Landlord Base Rent and
Additional Rent payable by Tenant to Landlord for any period during which
Landlord shall have given to Tenant any abatement of Base Rent and/or Additional
Rent pursuant to the provisions of this Lease. The failure of Landlord to re-let
the Demised Premises or any part or parts thereof shall not release or affect
Tenant's liability for damages. In computing such liquidated damages, there
shall be added to said deficiency such reasonable expenses as Landlord shall
incur in connection with such re-letting, such as legal expenses, attorneys,
fees, brokerage, advertising and for restoring the Demised Premises to or
keeping same in good working order. Any such liquidated damages shall be paid in
monthly installments on the rent day specified in this Lease and any suit
brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Landlord to collect the deficiency for any
subsequent month by a similar proceeding. Upon Landlord's permitted entry
hereunder, Landlord, at its option, may make such alterations, repairs,
replacements and decorations in the Demised Premises as Landlord in its sole
judgment considers advisable or necessary for the purpose of re-letting the
Demised Premises, and the making of such alterations and decorations shall not
operate or be construed to release Tenant from liability hereunder. Landlord
shall in no event be liable in any way whatsoever for failure to re-let the
Demised Premises, or, in the event that the Demised Premises are re-let, for
reasonable failure to collect the rent thereof under such re-letting, and, in no
event shall Tenant be entitled to receive any excess of such net rent collected
above the sums payable by Tenant to Landlord hereunder. Mention in this Lease of
any particular remedy shall not preclude Landlord from any other remedy in law
or equity. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed, for any cause, or in the event of Landlord obtaining
possession of the Demised Premises by reason of the violation of Tenant of any
of the covenants and conditions of this Lease, or otherwise.
31.04. It is stipulated and agreed that in the event of the
termination of this Lease pursuant to the provisions of this Article, Landlord
shall forthwith, notwithstanding any other provisions of this Article or of this
Lease to the contrary, be entitled to recover from Tenant as and for liquidated
damages an amount equal to the difference between the sum of (i) Base Rent for
the unexpired portion of the Term of this Lease and (ii) that Base Rent and
Additional Rent payable by Tenant to Landlord for any period during which
Landlord shall have given to Tenant any abatement of Base Rent and/or Additional
Rent pursuant to the provisions of this Lease minus the fair market rental value
of the Demised Premises, if lower than the rent reserved, at the time of
termination for the unexpired portion of the Term of this Lease, discounted at
the rate of four (4%) percent per annum to present worth. Nothing contained
herein shall limit or prejudice the right of Landlord to prove for and obtain as
liquidated damages by reason of such termination an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when, and governing
the proceedings in which, such damages are to be proved, whether or not such
amount be greater, equal to, or less than the amount of the difference referred
to above. In determining the fair market rental value of the Demised Premises,
the rent realized by any arms-length re-letting, if re-letting be accomplished
by Landlord within such a reasonable time after the termination of this Lease,
shall be deemed prima facie to be the fair market rental value.
31.05. For the purposes of this Article, any notice required to be
given by Landlord under the provisions of this Article may be given by either
Landlord or by Landlord's managing agent.
ARTICLE XXXII
Covenant of Quiet Enjoyment
32.01. Landlord covenants that upon Tenant's paying the Base Rent and
Additional Rent and other sums due under this Lease and observing and performing
all of the terms, conditions, rules and covenants herein on its part to be
observed and performed, Tenant may peaceably and quietly enjoy the Demised
Premises, subject, nevertheless, to the terms and conditions of this Lease, and
any other leases, mortgages and instruments to which this Lease is subordinate
pursuant to the provisions hereof, including any and all extensions and
modifications of all of the foregoing.
ARTICLE XXXIII
Brokerage
33.01. Each party represents that it has dealt with no broker other
than Cushman & Wakefield of Long Island, Inc. (hereinafter, the "Broker") in
connection with this Lease and each party hereby agrees to indemnify and hold
the other harmless of and from any and all losses, costs, damages or expense
(including, without limitation, attorneys' fees and disbursements) incurred by
such party by reason of any claim of or liability to any other broker who claims
to have dealt with the other party in connection with this Lease including
claims for a fee or a commission and claims of, or right to, lien the Property
or Demised Premises. Landlord shall pay the Broker such brokerage fee as may be
due it pursuant to and in accordance with Landlord's separate agreement with the
Broker.
<PAGE>
ARTICLE XXXIV
Estoppel Certificate
34.01. Tenant shall, at any time and from time to time, without cost
or charge, at the request of the Landlord, upon not less than five (5) days'
notice, if given in person, or ten (10) days, notice, if given by mail, execute
and deliver to the Landlord a certificate evidencing whether or not:
(a) this Lease is in full force and effect (or if there have been any
modifications or amendments hereof, that the same is in full force and effect as
modified or amended, as the case may be, and submitting copies of such
modifications or amendments, if any);
(b) there are any existing defaults hereunder to the knowledge of the
Tenant executing the certificate, and specifying the nature of such defaults, if
any;
(c) the dates to which the Base Rent and any Additional Rent and all
other charges payable hereunder have been paid; and
(d) whether or not, to the best knowledge of the Tenant, the Landlord
is in default in the performance of any of its obligations under the Lease, and,
if so, specifying each such default of which the Tenant may have knowledge.
34.02. It is agreed by the parties hereto that the certificate
referenced in Section 34.01 hereof may be relied upon by anyone with whom the
Landlord may be dealing.
ARTICLE XXXV (Intentionally Omitted)
ARTICLE XXXVI
Surrender of Premises
36.01. Upon expiration or other termination of the Term of this Lease,
Tenant shall quit and surrender to Landlord the Demised Premises vacant, broom
clean, in good order and condition, normal wear and tear excepted, and Tenant
shall remove all its property therefrom, except as otherwise provided in this
Lease. Tenant's obligation to observe or perform this covenant shall survive the
expiration or other termination of the Term of this Lease. If the last day of
the Term of this Lease falls on a Sunday, this Lease shall expire at noon on the
preceding Saturday, unless it be a legal holiday, in which case it shall expire
at noon on the previous business day.
36.02. Tenant acknowledges that possession of the Demised Premises
must be surrendered to Landlord at the expiration or sooner termination of the
Term of this Lease. Tenant agrees to indemnify and save Landlord harmless
against all costs, claims, loss or liability resulting from delay by Tenant in
so surrendering the Demised Premises, including, without limitation, any claims
made by any succeeding tenant founded on such delay. The parties recognize and
agree that the damage to Landlord resulting from any failure by Tenant to timely
surrender possession of the Demised Premises as aforesaid will be extremely
substantial, will exceed the amount of the Base Rent and Additional Rent
theretofore payable hereunder, and will be impossible to accurately measure.
Tenant therefore agrees that if possession of the Demised Premises is not
surrendered to Landlord within 24 hours after the date of the expiration or
sooner termination of the Term of this Lease, then Tenant shall pay to Landlord
for each month and for each portion of any month during which Tenant holds over
in the Demised Premises after the expiration or sooner termination of the Term
of this Lease, a sum equal to two (2) times the aggregate of that portion of the
Base Rent and Additional Rent which was payable under this Lease during the last
month of the term hereof. Nothing contained herein shall be deemed to permit
Tenant to retain possession of the Demised Premises after expiration of the Term
of this Lease and the provisions of this Article shall survive the expiration or
sooner termination of the Term of this Lease.
ARTICLE XXXVII
Partial Invalidity
37.01. If any term or provision of this Lease or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
ARTICLE XXXVIII
No Waivers by Landlord
38.01. Except as otherwise provided in this Lease, no act or thing
done by Landlord or its agents during the term hereof shall constitute an
eviction by Landlord, nor shall be deemed an acceptance of a surrender of the
Demised Premises, and no agreement to accept such surrender shall be valid
unless in writing signed by Landlord. The delivery of keys to an employee of
Landlord or of its agents shall not operate as a termination of this Lease or a
surrender of the Demised Premises.
38.02. The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease,
or to insist upon the strict performance by Tenant or any other Tenant, of the
Rules and Regulations annexed hereto or hereafter adopted by Landlord shall not
prevent a subsequent act or omission which would have originally constituted a
violation, from having all the force and effect of an original violation.
38.03. The receipt by Landlord of rent with knowledge of breach of any
covenant of this Lease shall not be deemed a waiver of such breach.
38.04. No payment by Tenant or receipt by Landlord of a lesser amount
than the Base Rent and Additional Rent shall be deemed to be other than a
payment on account, nor shall any endorsement or statement on any check or
payment be deemed an accord and satisfaction, and Landlord may accept such check
or payment without any prejudice to Landlord's right to recover the balance or
pursue any other remedy provided in this Lease.
<PAGE>
ARTICLE XXXIX
Waivers by Tenant
39.01. Tenant, for itself, and on behalf of any and all persons
claiming through or under it, including creditors of all kinds, does hereby
waive and surrender all right and privilege which they or any of them might have
under or by reason of any present or future law, to redeem the Demised Premises
or to have a continuance of this Lease for the term hereby demised after having
been dispossessed or ejected therefrom by process of law or after the
termination of this Lease as provided herein.
39.02. Tenant hereby waives the right to trial by jury in any action,
summary proceeding, legal proceeding or counterclaim between or among the
parties hereto or their successors or assigns on any matters whatsoever arising
out of or in any way connected with this Lease, the relationship of Landlord and
Tenant, Tenant's use of or occupancy of the Demised Premises and any emergency
statutory or any other statutory remedy.
39.03. Supplementing and in furtherance of the provisions of Section
39.02, hereof, Tenant hereby waives the right to interpose a counterclaim of
whatever nature or description in any summary proceeding instituted by Landlord
against Tenant for possession of the Demised Premises or in any action or
proceeding instituted by Landlord for unpaid Base Rent, Additional Rent or other
sums or charges payable by Tenant under this Lease.
39.04. (a) In the event Tenant claims or asserts that Landlord has
violated or failed to perform a covenant of Landlord not to unreasonably
withhold or delay Landlord's consent or approval, or in any case where
Landlord's reasonableness in exercising its judgment is in issue, Tenant's sole
remedy shall be an action for specific performance, declaratory judgement,
injunction or expedited arbitration pursuant to Section 39.04(b) below, and in
no event shall Tenant be entitled to any money damages for a breach of such
covenant and in no event shall Tenant claim or assert any claims in any money
damages in any action or by way of set off, defense or counterclaim and Tenant
hereby specifically waives the right to any money damages or other remedies not
specifically provided in this Section 39.04.
(b) (i) Notwithstanding anything in this Lease to the contrary,
any dispute between the parties under this Lease as to whether Landlord has been
unreasonable in refusing to grant its consent or approval may be resolved by
arbitration as provided in this paragraph. In the event of such a dispute, the
disputing party shall give notice thereof to the other and, within five days
after giving such notice, also shall request the appointment of an arbitrator by
the American Arbitration Association (or any successor organization), or in the
absence, refusal, failure or inability to act of such organization, either party
may apply for a court appointment of such arbitrator. The arbitrator shall be a
fit and impartial person who shall have had at least ten (10) years' experience
in Suffolk County, New York in a calling connected with the matter of the
dispute.
(ii) Once the arbitrator is appointed, the arbitration shall be
conducted to the extent consistent with this Article, in accordance with the
then prevailing commercial arbitration rules of the American Arbitration
Association (or any successor organization). The decision and award shall be
rendered by the arbitrator within fifteen (15) days after his or her
appointment. Such decision and award shall be in writing and shall be final,
conclusive and binding on the parties, and counterpart copies thereof shall be
delivered to each of the parties. In rendering such decision and award, the
arbitrator shall not add to, subtract from or otherwise modify the provisions of
this Lease. Judgment may be entered on the decision and award of the arbitrator
so rendered in any court of competent jurisdiction.
(iii) The fees and expenses of the arbitrator and all other
expenses of the arbitration (other than the fees and disbursements of attorneys
or witness for each party) shall be borne by the parties equally.
ARTICLE XL
Exculpation
40.01. Notwithstanding anything to the contrary contained herein,
Tenant shall look solely to the interest of Landlord in the Property for the
satisfaction of any of Tenant's remedies with regard to the payment of money or
otherwise, and no other property or assets of Landlord shall be subject to levy,
execution or other enforcement procedures for the satisfaction of Tenant's
remedies or with respect to this Lease, the relationship of Landlord and Tenant
hereunder or Tenant's use or occupancy of the Demised Premises, such exculpation
of personal liability to be absolute.
ARTICLE XLI
(Intentionally Omitted)
ARTICLE XLII
Effect of Conveyance by Landlord
42.01. If Landlord shall sell the Building, or otherwise validly
assign or transfer this Lease pursuant to a lease of the entire Building, then
Landlord shall be relieved and discharged from any and all covenants and
liabilities of Landlord hereunder, and it shall be conclusively presumed without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser or lessee of the entire Building at such
sale or assignment, as the case may be, that the purchaser or lessee of the
entire Building has agreed to carry out any and all covenants and obligations of
Landlord hereunder.
ARTICLE XLIII
Notices
43.01. Any notice, consent, approval, demand or statement permitted or
required to be given by the terms of this Lease, or by any law or governmental
regulation, shall be in writing. Unless otherwise required by such law or
regulation, such notice shall be given, and shall be deemed to have been served
and given (i) when delivered, if by personal delivery, (ii) three (3) Normal
Business Days after being deposited by registered or certified mail enclosed in
a securely closed postpaid wrapper, in a United States Government general or
branch post office, or (iii) one day after being deposited with Federal Express
or other courier of national reputation for overnight delivery. Anything to the
contrary contained herein, any notice given on a day which is not a Normal
Business Day shall be deemed to have been given on the first Normal Business Day
occurring thereafter. All notices sent in accordance with (ii) or (iii) above,
if to Landlord shall be addressed to Landlord as follows: 401 Broad Hollow
Realty Corp., c/o Sbarro, Inc., 763 Larkfield Road, Commack, New York 11725,
Attn: President, with a copies to: Sbarro, Inc., 763 Larkfield Road, Commack,
New York 11725, Attn: Chief Counsel and Sbarro, Inc. 763 Larkfield Road,
Commack, New York 11725, Attn: Chief Financial Officer, and if to Tenant, shall
be sent to Tenant's address hereinbefore set forth. With respect to all notices
to Landlord, Tenant shall endeavor to send a copy to: Cushman & Wakefield of
Long Island, Inc. and to: Forchelli, Schwartz, Mineo & Carlino, LLP, 120 Mineola
Blvd., P.O. Box 31, Mineola, New York 11501, Attention: Steven G. Gaebler, Esq;
provided however, the failure of Tenant to send copies to Cushman & Wakefield of
Long Island, Inc. and Forchelli, Schwartz, Mineo & Carlino, LLP, Attn: Steven G.
Gaebler, Esq., shall in no way affect the validity of the notice. With respect
to notices to Tenant, Landlord shall endeavor to send copies of notices to Curto
Barton & Alesi, P.C., One Huntington Quadrangle, Suite one North Five, Melville,
New York 11747, provided however, the failure of Landlord to send copies to
Curto Barton & Alesi, P.C., One Huntington Quadrangle, Suite one North Five,
Melville, New York 11747, shall in no way affect the validity of such notice.
Either party may, by notice as aforesaid designate a different address or
addresses for notices, requests or demands to it.
ARTICLE XLIV
Intentionally Omitted
ARTICLE XLV
Successors and Assigns
45.01. The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of the parties hereto and their
respective heirs, distributees, executors, administrators, successors and,
except as provided herein, their assigns.
ARTICLE XLVI
Signs
46.01. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by Tenant on any part of the outside of
the Demised Premises or the Building or on the inside of the Demised Premises if
the same is visible from the outside of the Demised Premises without the prior
written consent of Landlord, which consent may be withheld by Landlord in the
exercise of Landlord's unfettered discretion. In the event of the violation of
the foregoing by Tenant, Landlord may remove same without any liability and may
charge the expense incurred by such removal to Tenant on the next month's rent
bill as Additional Rent.
46.02. Notwithstanding the foregoing, Tenant, at its sole cost and
expense, will be allowed signage on a monument sign on the side of the Building
facing Route 110 for the sole purpose of identifying Tenant as a tenant in the
Building, which signage shall be approved by Landlord in its sole and absolute
discretion. Any permits or approvals required by the applicable governmental
authorities in connection with Tenant's signage shall be Tenant's responsibility
at Tenant's sole cost and expense. Landlord will provide reasonable cooperation
to Tenant to assist Tenant in its efforts to obtain such approvals or permits at
no cost or expense to Landlord. Landlord, at the sole cost and expense of
Tenant, shall also provide Tenant with an entrance door sign and directory
listing in accordance with Building standards established by Landlord therefor.
ARTICLE XLVII
Entire Agreement; No Modification
47.01. All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully and completely
expresses the agreement between Landlord and Tenant and any executory agreement
hereafter made shall be ineffective to change, modify, waive, release,
terminate, discharge, extend, renew or effect an abandonment of it in whole or
in part, unless such executory agreement is in writing and signed by the party
against whom enforcement of the change, modification, waiver, release,
termination, extension, renewal, discharge or abandonment is sought.
ARTICLE XLVIII
Arbitration
48.01. Either party to this Lease may elect, in the manner hereinafter
provided, to have any dispute determinable by arbitration pursuant to the
provisions of this Lease submitted to arbitration. Such election shall be
exercised by either party giving the other party a notice requesting such
arbitration, which notice shall specify the nature of the dispute and the
identity of the arbitrator chosen by said party.
48.02. Within fifteen (15) days after the service of the notice
specified in Section 48.01 hereof the other party shall give written notice to
the first party specifying the identity of its arbitrator. If the second party
fails to notify the first party of the appointment of its arbitrator within said
period, the appointment of the second arbitrator shall be made in the same
manner as hereinafter provided for the appointment of a third arbitrator. The
arbitrators so chosen shall meet within ten (10) days after the second
arbitrator is appointed and, if within thirty (30) days after the second
arbitrator is appointed, the said two arbitrators shall not agree upon the
question in dispute, they shall themselves appoint a third arbitrator who shall
be a competent and impartial person; and in the event of their being unable to
agree upon such appointment within ten (10) days after the time aforesaid, the
third arbitrator shall be selected by the parties themselves if they can agree
thereon within a further period of fifteen (15) days. If the parties do not so
agree, then either party, on behalf of both, may request such appointment by the
American Arbitration Association in accordance with its rules then prevailing.
The decision of the arbitrators so chosen shall be given within a period of
sixty (60) days after the appointment of such third arbitrator. The decision in
which any two arbitrators so appointed and acting hereunder concur shall be so
appointed and acting hereunder concur shall be binding upon the parties. Each
party shall pay the fees and expenses of the arbitrator appointed by such party,
or in whose stead as above provided, such arbitrator was appointed, and the fees
and expenses of the third arbitrator, if any, shall be borne equally by both
parties. The arbitration shall be conducted by, pursuant to, and under the
auspices of the American Arbitration Association and shall take place in
Nassau County, New York.
ARTICLE XLIX
Intentionally Omitted
ARTICLE L
Miscellaneous
50.01. Tenant shall not at any time prior to or during the Term of
this Lease, either directly or indirectly, use any contractors, laborers or
materials the use of which would create any conflicts with other contractors
and/or laborers employed by Tenant or Landlord in the construction, maintenance
or operation of the Demised Premises, the Building or the Property.
50.02. This Lease supersedes all prior leases between Landlord and
Tenant with respect to any of the space included within the Demised Premises, if
any.
50.03. This Lease is offered to Tenant for signature with the
understanding that it shall not be binding upon Landlord unless and until
Landlord shall have executed and delivered a fully executed copy of this Lease
to Tenant.
ARTICLE LI
Captions/Recording
51.01. The captions of Articles in this Lease are inserted only as a
matter of convenience and for reference and they in no way define, limit or
describe the scope of this Lease or the intent of any provisions hereof.
51.02. Tenant shall not record this Lease without the written consent
of Landlord. Landlord shall have the right at any time to record this Lease.
Tenant, upon request by Landlord shall join in the execution of a memorandum of
this Lease which memorandum may be recorded by Landlord.
401 BROAD HOLLOW REALTY CORP., LANDLORD
By:____________________________________
GREENSTONE ROBERTS ADVERTISING, INC.
By:____________________________________
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF _________ )
On the __________ day of _________, __________, before me personally
came _______________________, to me known, who, being by me duly sworn did
depose and say that [HE/SHE] resides at _____________________; that [he/she] is
the _______________ of _____________; the corporation described in and which
executed the above instrument; and that [HE/SHE] signed [HIS/HER] name thereto
by authority of the Board of Directors of said corporation.
- --------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF _________ )
On the _________ day of _______ , ________, before me personally came
______________________, to me known, who, being by me duly sworn did depose and
say that [HE/SHE] resides at _____________ ; that [he/she] is the _____________
of__________; the corporation described in and which executed the above
instrument; and that [HE/SHE] signed [HIS/HER] name thereto by authority of the
Board of Directors of said corporation.
- --------------------
Notary Public
<PAGE>
EXHIBIT A
DIAGRAM OF SPACE
(To Be Supplied)]
<PAGE>
EXHIBIT B
TENANT'S WORK LETTER
(A) The Demised Premises being leased to Tenant hereunder presently
consist of vacant, unfinished space. Tenant desires to finish the space and
create offices to conduct Tenant's advertising operations ("Tenant's Work").
Tenant shall, at its own cost and expense, furnish Landlord with all drawings,
plans, layouts and specifications for Tenant's Work, including, without
limitation, architectural, plumbing, electrical, mechanical and heating,
ventilating and air conditioning plans (the "Tenant's Plans"). All of the
Tenant's Plans shall:
(i) be compatible with the construction of the Building;
(ii) comply with all applicable laws and the rules, regulations,
requirements and orders of any and all governmental agencies, departments or
bureaus having jurisdiction; and
(iii) be fully detailed, including locations and complete
dimensions.
(B) Tenant shall promptly, after the execution of this Lease submit to
Landlord, Tenant's Plans, and Landlord shall promptly thereafter have its
architect review Tenant's Plans and to either approve or to disapprove the
Tenant's Plans. If Landlord does not approve the Tenant's Plans, Landlord shall
return Tenant's Plans to Tenant and notify Tenant of any changes it desires to
Tenant's Plans, in which event, Tenant shall modify Tenant's Plans in accordance
with Landlord's requirements and shall return them as modified to Landlord
within the following seven (7) days. The approved Tenant's Plans shall be a part
of this Lease.
(C) Tenant shall prosecute the applications for permits diligently and
use its best efforts to obtain the approvals, permits, and certificates applied
for. Tenant shall advise Landlord of its progress from time to time and upon
request by Landlord.
(D) Landlord may require as a condition precedent to the commencement
of any Tenant's Work that Tenant furnish to Landlord a bond in a form
satisfactory to Landlord, written by a surety company approved by Landlord,
licensed and authorized to issue such bonds in the State of New York, in an
amount deemed by Landlord to be sufficient to guaranty the full payment and
performance of all of Tenant's Work, free of mechanics' liens, notices of
intention to file liens and other similar encumbrances.
(E) Promptly after the Tenant's Plans have been approved by Landlord,
Tenant shall, at Tenant's sole cost and expense, (i) cause Tenant's Plans to be
filed with the governmental agencies having jurisdiction thereover, (ii) obtain
when necessary all governmental permits, licenses and authorizations required
for the work to be done in connection therewith, and (iii) obtain all necessary
certificates of occupancy or completion or compliance, both temporary and
permanent and fire underwriters certificates. Landlord shall execute such
documents as may be reasonably required in connection with the foregoing and
Landlord shall otherwise reasonably cooperate with Tenant in connection with
obtaining the foregoing, but without any expense to Landlord. After Tenant's
Plans have been approved by Landlord, Tenant shall make no change in any of
Tenant's Plans without the prior written consent of Landlord in each instance.
(F) Following Landlord's advise to Tenant that Tenant's Plans have
been approved by Landlord, Tenant shall notify Landlord in writing of the names
of the employees, agents, contractors and/or subcontractors who are to perform
the Tenant's Work in the Demised Premises (individually or collectively,
hereinafter referred to as "Tenant's Contractor"), and shall thereafter promptly
furnish Landlord with such other information relating to Tenant's Work as
Landlord may require. Tenant acknowledges that it shall not be permitted to
commence Tenant's Work unless and until (i) Tenant's Contractor shall have been
approved by Landlord and, if required by Landlord, shall have been selected by
Tenant after bidding Tenant's Work to those contractors from Landlord's list of
approved contractors, (ii) Tenant's Contractor shall have complied with
Landlord's insurance requirements, and (iii) Tenant shall have complied with
Landlord's bond requirements, as set forth in this Tenant Work Letter. In any
event, Tenant acknowledges that the Building is a "union building" and as such,
Tenant shall permit only union members to be Tenant's Contractor.
(G) Tenant may use any licensed architect or engineer to prepare its
plans and to file for permits. However, all such permit applications shall be
subject to review and approval by Landlord's architect. Tenant shall pay
Landlord's architect for the review and revision of such permit applications.
(H) No work shall commence in the Demised Premises until (i) Tenant
has procured all necessary permits therefor and has delivered copies of same to
Landlord, (ii) Tenant has procured a paid builder's risk insurance policy naming
Landlord as an additional insured and has delivered to Landlord a certificate of
insurance evidencing such policy, (iii) Tenant or Tenant's Contractor has
procured a worker's compensation insurance policy covering the activities of all
persons working at the Demised Premises naming Landlord as an additional insured
and has delivered to Landlord a certificate of insurance evidencing such policy,
and (iv) Tenant has procured the liability insurance policy required by Article
XXIII hereof and has delivered to Landlord a certificate of insurance evidencing
such policy.
(I) Promptly after all requisite approvals have been granted and after
the commencement of this Lease, Tenant shall commence the performance of
Tenant's Work and shall diligently prosecute Tenant's Work to completion. Tenant
shall perform all of Tenant's Work, in accordance with the Tenant's Plans, all
legal requirements, all insurance requirements, and in a good and workmanlike
manner. Tenant shall complete Tenant's Work as called for by Tenant's Plans, and
Tenant shall obtain, if necessary permanent, unconditional certificates of
occupancy or certificates of completion and shall deliver same to Landlord.
(J) Landlord shall give Tenant a total allowance ("Allowance") of
Twenty Five and 00/100 ($25.00) Dollars per square foot of Rentable Area in the
Demised Premises as a credit towards the "hard" costs of the Tenant's Work,
which Allowance Landlord shall be paid to Tenant in one lump sum payment upon
completion of Tenant's Work as evidenced by the issuance of a temporary and/or
permanent certificate(s) of occupancy covering all of Tenant's Work with the
exception of minor "punchlist items", together with such paid invoices, sworn
statements, mechanic's lien waivers and such other documentation as Landlord may
reasonably request. During the course of performing Tenant's Work, Tenant shall
pay all costs of the Tenant's Work within thirty (30) days after Tenant's
receipt of invoices therefor, including amounts which may be in excess of the
Allowance.
(K) Intentionally Omitted.
(L) Prior to a Tenant's Contractor entry onto the Premises to commence
Tenant's Work, Tenant shall supply Landlord with the name, address and phone
number of the contractor or subcontractor and Tenant will supply such
information for all suppliers of materials for the Tenant's Work.
(M) Landlord assumes no responsibility for Tenant's contractors,
tools, equipment, material, etc., lost, stolen or damaged on the job site. The
Tenant's contractor shall take necessary precautions to protect properly the
finished work of his and other trades from damage during and at the end of each
work day.
(N) Tenant shall comply with the provisions of the current Federal
Occupational Safety and Health Act and all current OSHA standards as well as any
and all state and/or local ordinances related to health and safety, and shall be
responsible for and shall pay any penalty imposed and for violations issued
covering Tenant's Work in connection with the Demised Premises.
(O) If Tenant fails to comply with any of the foregoing provisions,
Landlord may, but shall not be obligated to comply with the foregoing at
Tenant's expense and all costs incurred by Landlord shall be Additional Rent
under the Lease.
(P) All of Tenant's Work shall, upon installation, become the property
of Landlord and shall remain upon and be surrendered with the Demised Premises
upon the termination of the Lease.
(Q) Tenant shall furnish to Landlord a set of "as-built" plans
promptly after the completion of Tenant's Work.
(R) After the completion of the Tenant's Work, any additional work or
alterations which Tenant desires to perform shall comply with the provisions of
this Article V, in addition to the other relevant provisions of this Lease.
<PAGE>
EXHIBIT C
BUILDING STANDARD CLEANING
AND JANITORIAL SERVICES
A. GENERAL
1. Cleaning work will be performed between 5 p.m. and 12 midnight,
Monday through Friday, unless otherwise necessary.
2. Abnormal waste removal (e.g., computer installation paper, bulk
packaging, wood or cardboard crates, refuse from cafeteria
operation, etc.) shall be Tenant's responsibility.
B. DAILY OPERATIONS (5 TIMES PER WEEK)
1. TENANT AREAS
a. Empty and clean waste receptacles, wash receptacles as
necessary, replace liners as necessary.
b. Vacuum rugs and carpeted areas.
c. Empty, damp wipe and dry ashtrays.
2. LAVATORIES
a. Sweep and wash floors with disinfectant.
b. Wash both sides of toilet seats with disinfectant.
c. Wash mirrors, basins, bowls, urinals.
d. Spot clean toilet partitions.
e. Empty and disinfect sanitary napkin disposal receptacles.
f. Refill toilet tissue, towel, soap, and sanitary napkin
dispensers.
3. PUBLIC AREAS
a. Wipe down entrance doors and clean glass (interior and
exterior) and adjacent glass?
b. Vacuum elevator and wipe down doors and walls.
C. OPERATIONS AS NEEDED (BUT NOT LESS THAN WEEKLY)
1. TENANT AND PUBLIC AREAS
a. Buff and clean marble/resilient floor areas.
D. MONTHLY OPERATIONS
1. TENANT AREAS, LAVATORIES PUBLIC AREAS
a. Hand-dust and wipe clean horizontal surfaces with treated
cloths to include furniture, office equipment, window-sills,
door ledges, chair rails, baseboards, convector tops, etc.,
within normal reach.
b. Remove finger marks from private entrance doors, light
switches, and doorways.
c. Sweep stairways, buff/clean marble floors.
E. QUARTERLY OPERATIONS
1. TENANT AND PUBLIC AREAS
a. Thoroughly vacuum seat cushions on chairs, sofas, etc.
b. Vacuum and dust grillwork.
c. Wet mop stairwells.
2. LAVATORIES
a. Wash down interior walls and toilet partitions.
F. AS REQUIRED AND WEATHER PERMITTING
1. Clean inside of windows in Building.
2. Clean outside of windows in Building.
<PAGE>
EXHIBIT D
HOLIDAYS
Tenant will not observe normal business hours on the following
holidays:
1. New Year's Day
2. President's Day
3. Memorial Day
4. Independence Day
5. Labor Day
6. Thanksgiving Day
7. Day after Thanksgiving Day
8. Christmas Day
The date in any given Lease Year upon which any of the above holidays
will be observed shall be that date as shall be published annually by the New
York State Banking Department.
<PAGE>
EXHIBIT E
RULES AND REGULATIONS
A. GENERAL RULES AND REGULATIONS
The following Rules and Regulations shall be applicable to the Building
and the Demised Premises as said terms are defined in the Lease of which these
Rules and Regulations are a part (hereinafter the "Lease"). Unless otherwise
provided in these Rules and Regulations, all references to "tenant" or "tenants"
shall be deemed to include "Tenant" as defined in the Lease. In the event of a
conflict between these Rules and Regulations and the provisions of the Lease,
the provisions of the Lease shall control:
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and halls in the Building and Demised Premises shall not be
obstructed or used for any purpose other than ingress and egress.
2. No projection shall be attached to the outside walls of the
Building. All electric ceiling fixtures hung in offices or space along the
perimeter of the Building must be fluorescent, and of a quality, type, design
and bulb color approved by Landlord. Neither the interior nor exterior of any
windows shall be coated or otherwise sunscreened without written consent of
Landlord.
3. The sashes, sash doors, skylights, windows, and doors that reflect
or admit light and air into public places in the Building shall not be covered
or obstructed by any tenant, nor shall any articles be placed on any
windowsills, window heating units or in front of any air-conditioning vents.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, sanitary napkins or other substances shall be thrown
therein. All damage resulting from any misuse of such closets and fixtures shall
be the responsibility of the tenant which, or whose servants, employees, agents,
visitors or licensees shall have caused the same.
5. No tenant shall mark, paint, drill into, or in any way deface any
part of the Building except as expressly provided in the Lease.
6. No bicycles, vehicles, birds or animals of any kind shall be brought
into or kept in or about the Building, except those bicycles which shall be
parked in any areas which may be specifically designated by Landlord for such
purpose. Landlord assumes no responsibility for any bicycles so parked. Except
as may be specifically provided in the Lease, no cooking shall be done or
permitted by any tenant in the Building, except that the preparation of coffee,
tea, hot chocolate and similar items for tenants and their employees and
invitees shall be permitted provided the electric power therefor shall not
exceed that amount which can be provided by a thirty (30) ampere circuit. Except
as may be provided in the Lease, no tenant shall cause or permit any unusual or
objectionable odors to be produced or to permeate the premises demised to it.
7. No tenant shall utilize the premises occupied by it for the sole or
major purpose of interviewing or hiring prospective employees and shall not
advertise the address of the Building as the location for such interviewing or
hiring. No premises shall be used for lodging or sleeping or for any immoral or
illegal purposes.
8. No tenant shall make, or permit to be made any unseemly or
disturbing noises or disturb or interfere with (a) occupants of the Building or
neighboring buildings or (b) those persons having business with said occupants,
whether by the use of any musical instrument, television, radio, phonograph,
unusual noise, or in any other way. No tenant shall throw anything out of the
Building or into the passageways therein.
9. No tenant or any of its servants, employees, agents, visitors or
licensees, shall at any time bring or keep within the Building any flammable,
combustible or explosive fluid, chemical or substance.
10. Except as may be provided in the Lease, no additional locks or
bolts of any kind shall be placed upon any of the doors or windows by any
tenant, nor shall any changes be made in existing locks or the mechanism
thereof. Landlord, at its expense, shall, at or prior to initial occupancy by
any tenant, supply any and all necessary passkeys to any portion of the premises
demised to any tenant pursuant to any lease. All keys issued thereafter shall be
issued by Landlord at tenant's expense. Notwithstanding the foregoing, Tenant
shall have the right to replace Landlord's locks and install security systems.
Tenant shall supply Landlord with the necessary keys and security codes to
permit entry in the event of a casualty, endangering life or property.
Landlord's original locks, if replaced, shall be replaced at the end of the term
of the Lease. Each tenant must, upon the termination of its tenancy, restore to
the Landlord all keys of stores, offices, and toilet rooms, either furnished to,
or otherwise procured by, such tenant. In the event of the loss of any keys so
furnished, such tenant shall pay to the Landlord the cost of replacing the same
or of changing the lock or locks opened by such lost key if Landlord shall deem
it necessary to make such changes.
11. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description, except in the ordinary course of
business, must take place during the hours from 8:00 A.M. to 9:00 P.M. on Normal
Business Days. No removal of said items may take place at times other than from
8:00 A.M. to 9:00 P.M. on normal business days. The moving of safes or other
fixtures or bulky matter of any kind must be done upon twenty-four (24) hours,
previous written notice to the Managing Agent of the Building and be under its
supervision, and the person employed by any tenant for such work must be
reasonably acceptable to the Landlord. Landlord shall have no right to inspect
articles or packages being processed by Tenant for customer business. Except as
may be provided in the Lease, Landlord reserves the right to prescribe the
weight and position of all safes.
12. Except as may be provided in the Lease, no tenant shall purchase
spring water, ice, towels, janitorial, maintenance or other like services from
any person not approved by the Landlord. No tenant shall have delivered to the
Demised Premises from vendors located outside the Building any food or drink
without the prior written approval of Landlord.
13. Intentionally Omitted.
14. Any persons employed by any tenant to do janitorial work, while in
the Building and outside of the premises demised pursuant to the provisions of
any lease, shall be subject to and under the control and direction of the
Managing Agent of the Building (but not as an agent or servant of said Managing
Agent or of the Landlord), and Tenant shall be responsible for all acts of such
persons.
15. All doors opening onto public corridors in the Building shall be
kept closed, except when in use for ingress and egress.
16. Any requests, notices or demands of any tenant to or upon the
Landlord shall be in writing and addressed to the Managing Agent at the
Building.
17. Canvassing, soliciting (except business calls on potential
customers in the Building) and peddling in the Building are prohibited and each
tenant shall cooperate to prevent the same.
18. Except as may be provided in the lease, no supplementary
air-conditioning unit or other similar apparatuses shall be installed or used by
any tenant without the written consent of Landlord.
19. There shall not be used in any space, or in the public areas of the
Building, either by any tenant or others, any hand trucks except those equipped
with rubber tires and rubber side guards.
20. Smoking or carrying lighted cigars, pipes or cigarettes inside the
Building is prohibited and will be permitted outside the Building only in areas
designated by Landlord.
21. Except as may be provided in the lease, Landlord shall have the
right, exercisable without notice and without liability to any tenant, to change
the name and address of the Building.
B. PARKING AREA RULES AND REGULATIONS
The following Parking Area Rules and Regulations shall apply to all
parking areas and the parking structure serving the Building and the Demised
Premises.
1. All cars must be parked entirely within the stall lines.
2. All directional signs and arrows must be observed.
3. The speed limit shall be five (5) miles per hour.
4. Parking is prohibited:
(a) in areas not striped for parking.
(b) in aisles.
(c) where "no parking" signs are posted.
(d) on ramps.
(e) in cross-hatched areas.
(f) in such other areas as may be designated by Landlord or
Landlord's designee.
5. Parking stickers of any other device or form of identification
supplied by Landlord shall remain the property of Landlord. Such parking
identification device must be displayed as requested by Landlord and may not be
mutilated in any manner. The serial number of any parking identification device
may not be obliterated. Parking identification devices shall not be
transferrable and any device in the possession of an unauthorized holder will be
void. There will be a replacement charge to the tenant or person designated by
tenant of $25 for loss of any magnetic parking card.
6. Parking managers or attendants are not authorized to make or allow
any exceptions to these Parking Area Rules and Regulations.
7. Every parker is required to park and lock his own car. All
responsibility for damage to cars is assumed by the parker.
8. Loss or theft of parking identification devices from automobiles
must be reported to the parking manager immediately, and a lost or stolen report
must be filed by the parker at that time. Any parking identification devices
reported lost or stolen and found on any unauthorized car will be confiscated
and the illegal holder will be subject to prosecution. Lost or stolen devices
which are subsequently recovered must be returned to the parking manager
immediately.
9. Washing, waxing, cleaning or servicing of any vehicle while in the
parking areas by any person is prohibited.
10. The Landlord or its designee reserves the right to refuse the
issuance of stickers or other parking identification devices to any tenant or
person and/or his agents or representatives who willfully refuses to comply with
the above Parking Area Rules and Regulations and with all applicable municipal,
state or federal ordinances, laws, regulations, or agreements (whether or not
posted).
11. Landlord shall have no obligation to remove or ticket any
improperly parked vehicles from any parking space, whether or not said space is
designated for the use of any particular tenant.
Exhibit 21
Subsidiaries of the Company
NAME OF SUBSIDIARY STATE OF INCORPORATION % OWNERSHIP
- ------------------ ---------------------- -----------
Greenstone Roberts Advertising, Florida 100%
Florida, Inc.
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